author: RUDNICK, VAUGHN, J, Associate Judge.

text:
    Norman A. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 75-961.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Warner S. Olds, Public Defender 17th Judicial Circuit by Stuart Mark Lerner and Neil G. Frank, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee by Basil S. Diamond, Asst. Atty. Gen., for appellee.
   RUDNICK, VAUGHN, J, Associate Judge.

Norman Abelino Murray was informed against in a one count Information charging him with Manslaughter arising out of the operation of a motor vehicle in a careless, reckless or culpably negligent manner contrary to Florida Statute 782.07. Upon the jury returning a verdict of guilty and the Court pronouncing judgment and sentence this appeal followed.

Although several matters have been assigned as error, this Court addresses itself to the assignment of error which questions the sufficiency of the evidence to support the verdict rendered by the jury. A careful review of the entire record below when compared to the standards and law set forth by the Florida Supreme Court in the case of Maxey v. State, 64 So.2d 677 (1953), clearly reflects the verdict must be set aside.

Unique to the presentation of this case to the jury was the number of lay witnesses who witnessed the accident which resulted in the tragic death of a human being. The witnesses were able to describe to the jury in detail those events immediately preceding the accident, the accident itself and the events occurring immediately after the accident. Law enforcement officers also responded to the accident within minutes of the occurrence. The scene of the accident is 1-95 in Broward County which is a six lane highway; three traffic lanes proceeding in a southerly direction separated by a median strip and three traffic lanes proceeding in a northerly direction. The weather was clear and dry, the road was straight, traffic conditions for the area were normal, the speed limit is 65 miles per hour and the hour is approximately 1:30 in the afternoon. Adjacent to the outside lane of traffic is a shoulder of sufficient width that a motor vehicle can leave outside lane of traffic completely and stop and to the outside of the shoulder is a guard rail. It was on this shoulder to the lanes of traffic traveling in a northerly direction the victim’s paneled truck was parked because of a flat tire. The appellant, Norman Abelino Murray, was operating a semi tractor/trailer in a northerly direction on 1-95 and his vehicle occupied the middle lane. In an effort to pass the small car in front of him the appellant moved partially into the inner lane. Unable to pass the vehicle he returned to the middle lane, commenced negotiating his pass in the outer lane and after three or four attempts at passing the vehicle in question his attempts resulted in failure.

All witnesses agree that appellant’s vehicle as well as all other vehicles were traveling approximately forty-six to fifty miles per hour. The appellant’s vehicle suddenly veered from the middle lane to the right at an angle ranging from fifteen to forty-five degrees, struck the guard rail perhaps as close as five feet in front of the paneled truck sitting on the shoulder, rammed into the rear of the paneled truck in which the victim was sitting and then both vehicles skidded down the rail across the three paved lanes of traffic, across the median strip, across the three lanes of traffic traveling in a southerly direction, struck the guard rail wherein the paneled truck burst into flames which ended in the victim’s death.

A witness, Miss Segal, traveling south on 1-95 saw the semi tractor/trailer actually hit the paneled truck and cross the median. A witness, Otto D. Grove, Jr., was driving north on 1-95 about two or three hundred feet behind the appellant’s truck saw all the movements with the exception that he could not see the small car the appellant was attempting to pass.

At the scene of the accident the appellant was assisted by a witness, Teovaldo Rodriguez, and together they attempted without success to put the fire out. The witness testified during the fifteen or twenty minute period of time he was with the appellant they talked to each other and the appellant’s speech was not slurred nor did he have any difficulty understanding appellant’s words, nor did the appellant have any difficulty understanding the witness’ words. The appellant did not have any difficulty standing or walking, his face did not seem unusual or flushed, there was nothing unusual about his eyes and appellant was not intoxicated.

Florida Highway Patrol Trooper, Kenneth Stockdale, who is an accident investigator in Broward County with special training in accident investigation, arrived on the scene very shortly after the accident. The vehicles were still engulfed in flames and he immediately realized a death was involved in the accident. The trooper investigated the scene, recalls talking to Mr. Rodriguez and other witnesses including appellant and ultimately he arrested appellant for “violation of right-of-way, no tag on the trailer.” The trooper testified he could smell the odor of alcohol on appellant but he could not recall anything concerning the facial characteristics of appellant. He observed the appellant walking but could not recollect anything unusual. The appellant did not have any difficulty standing or walking. He could recall nothing particular about appellant’s eyes, although on an earlier deposition he did testify they were a little bloodshot.

Trooper P. L. Swartz testified he drove appellant from the accident scene to the Florida Highway Patrol Station in Fort Lauderdale for the purpose of administering a breathalyzer test which was administered at approximately 2:30 in the afternoon on the day in question and the reading was .13 at that time.

The appellant testified he was a professional truck driver hired to haul a load 'and at lunch he had a ham and cheese sandwich, a couple bags of potato chips and three beers and approximately ten minutes later he was involved in the accident. He further testified relating to his attempts to pass the small car three or four times and his truck suddenly veered to the right crashing into the guard rail.' He attempted without success to apply his brakes and he did his best to keep the truck under control.

The Supreme Court of Florida has , enunciated the law as follows:

“It is unlawful to drive a car while ‘under the influence of intoxicating liquors’ but it is not manslaughter if one in such condition runs into and kills another unless ‘culpable negligence’ is shown. We have held that ‘testimony tending to show that a defendant, charged only with culpable negligence, was under the influence of intoxicants at the time of an automobile collision is admissible, on the theory that a driver so exhilarated is likely to be abnormally reckless’ Such evidence, however, cannot make an act wanton and reckless that was not otherwise so. It is valuable and useful only to corroborate or render more likely, evidence that is doubtful or disputed.” Smith v. State, 65 So.2d 303 (1953). See also Maxey v. State, 64 So.2d 677 (1953) and Jackson v. State, 100 So.2d 839 (Fla.App.lst D.C.A.1958)

In each of the above cases jury verdicts of guilty relating to vehicular manslaughter because of culpable negligence was reversed and in each case there was evidence the defendant had been drinking. Indeed, the Florida Supreme Court, in the Smith case, supra, reached the same conclusion even though' the officers at trial testified the defendant smelled of alcohol, that he was intoxicated and that when he got out of the car he weaved when he walked.

The Appellate Court must be ever mindful and reluctant to interfere with a jury’s verdict, however, when one considers the facts presented to the jury and compares them the law as enunciated by the Supreme Court of the State of Florida in the foregoing citations, it is clear the judgment below must be reversed and a new trial ordered.

The Court has considered the other assignments of error raised by appellant and finds no error in the lower court’s rulings.

REVERSED AND REMANDED.

WALDEN, C. J., and MAGER, J., concur.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Theresa A. WHITELEY, Appellant, v. Frank W. WHITELEY, Jr., Appellee.
    No. 75-884.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Perry S. Itkin and Donald G. Korman of Kirsch & Mills, P. A., Fort Lauderdale, for appellant.

      James R. Eddy of Eddy, Spindler & Hughes, P. A., Pompano Beach, for appel-lee.
   DOWNEY, Judge.

The final judgment of dissolution, as amended, which was entered in this cause, provided among other things:

1) That the appellant wife should have custody of the minor children of the parties.
2) The appellant should have exclusive possession of the marital domicile “for so long as she resides in said home with the children of the parties and remains unmarried; provided no other adult male, other than a member of the wife’s family, shall be permitted to reside in said home premises.”
3) The appellant was required to pay the mortgage, taxes, insurance, maintenance and upkeep on the home during her possession thereof.
4) Upon partition of the marital home appellant would “not be entitled to credit for any amounts expended by her for payments on the principal of the mortgage, or such improvements or repairs as may be made or such other expenditures as she might make in and about said premises.”

The primary thrust of the assignments of error as argued in appellant’s brief, is directed at the provisions of the final judgment which a) refused to give appellant any credit for the expenditures she was required to make for obligations pertaining to the marital domicile, and b) enjoined appellant from having any adult male other than a member of her family residing on the premises.

The marital domicile was jointly owned and so upon dissolution of the marriage each party became a tenant in common pursuant to statute. § 689.15, F.S. 1973. As co-tenants each is ultimately liable for his or her proportionate share of the obligations of the property, such as taxes and mortgages. Generally, if one co-tenant pays an obligation for which all are liable, he is entitled to have the other co-tenant pay his proportionate share. 8 Fla.Jur., Co-tenancy, § 12. But where the final judgment of dissolution of marriage awards one co-tenant the exclusive possession of the marital domicile and directs that co-tenant to pay all or some of the obligations of the property such as taxes, liens and repairs, the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold. However, upon partition or other sale the tenant paying those obligations of the property is entitled to credit from the proceeds of the sale for the other co-tenant’s proportionate share of those expenses. Lyons v. Lyons, Fla.App.1968, 208 So.2d 137. In a recent dissolution of marriage case, Guthrie v. Guthrie, Fla.App.1975, 315 So.2d 498, this court held that the trial court erred in not giving the wife credit at the time of sale of the jointly owned marital domicile for payments she made for obligations of the property during the time of her possession.

We thus conclude that it was error for the trial court to provide that upon partition of the property, appellant should have no right to reimbursement for the husband’s proportionate share of the obligations of the property in question.

With regard to the provision of the final judgment prohibiting appellant from allowing any adult male to reside in the home unless a member of her family, we find no abuse of discretion. We say so because appellant’s counsel in the trial court agreed to the imposition of such a provision.

For the foregoing reasons, on remand the trial court is directed to vacate paragraph 2 of the amendment to the amended final judgment dated April 18, 1975, and as so modified the amended final judgment is affirmed.

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


text:
    Kathern JENKINS, Appellant, v. COLLIER CITY HOMES, INC., et al., Appellees.
    No. 75-2175.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Steven R. Brownstein and Shalle Stephen Fine, Miami, for appellant.
    James W. Geiger of Devitt, Geiger, O’Neal & Booth, Fort Lauderdale, for ap-pellees.
   DOWNEY, Judge.

By interlocutory appeal review is sought of the trial court’s order sustaining appel-lees’ objection to several of appellant’s interrogatories.

The trial judge is vested with a broad discretion in discovery matters and the decision under review does not appear to be an abuse thereof. While we recognize the essential nature of the ultimate facts appellant seeks through the interrogatories in question, it may be they can be obtained by a very direct, simple interrogatory asking appellee if on or prior to the pertinent date in question it regularly extended or arranged for the extension of credit for which the payment of a finance charge was required. No doubt the trial judge perceived this and thus exercised his discretion as he did.

However, we feel it prudent to note that if appellant is unable to obtain the needed information from appellee by simple, direct interrogatories, it may then become necessary for appellant to once again resort to more onerous and detailed interrogatories of the nature of those to which objection has been sustained.

Accordingly, the order appealed from is affirmed.

MAGER, J., concurs.

WALDEN, C. J., concurs in result only.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Alphonso Samuel WALLACE, Appellee.
    No. 76-80.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    David H. Bludworth, State’s Atty., and Jerome Davis, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and record on appeal we are of the opinion that from an examination of the totality of the circumstances of this case there was probable cause to believe that a felony was being committed so as to justify an arrest and search of the subject premises. See Mc-Dougall v. State, 316 So.2d 624 (Fla.App.4th 1975); State v. Profera, 239 So.2d 867 (Fla.App.4th 1970); State v. Bell, 249 So. 2d 748 (Fla.App.4th 1971); see also section 901.19(1), F.S. Accordingly, the order of suppression is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

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


author: OWEN, Judge.

text:
    N. George FREDERICK, Petitioner, v. FLORIDA REAL ESTATE COMMISSION and Ronald L. Myers, Respondents.
    No. 75-1154.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.

      Perry S. Itkin, of Kirsch & Mills, P. A., Fort Lauderdale, for petitioner.
    Frank A. Wilkinson and Howard Had-ley, Winter Park, for respondents.
   OWEN, Judge.

Petitioner seeks a writ of certiorari to review a final order of the Florida Real Estate Commission temporarily suspending his real estate salesman’s registration.

The Florida Real Estate Commission initiated the instant proceedings by filing a joint information against petitioner and his broker (who is not a party to this appeal). The information was in two counts. Count I alleged that petitioner was guilty of a breach of trust and misrepresentation in violation of Fla.Stat. § 475.25(1) (a) (1971); Count II alleged that petitioner’s broker was guilty of failing to deposit monies entrusted to him in a proper trust or escrow account in violation of Fla.Stat. § 475.25(1) (i) (1971). The record reflects that there was no amended information filed and that the action was tried on the understanding by all parties that the charges in Count I related exclusively to petitioner and that those in Count II related exclusively to his broker.

Incomprehensibly, the hearing examiner’s Recommended Order and the real estate commission’s Final Order both treat the charges contained in each count as relating to both defendants, with the net result of the proceedings below being an exoneration of the defendant-broker on both counts and an exoneration of defendant-salesman, petitioner, on Count I, but a finding of guilt as to Count II, which is accordingly the subject of this appeal. We find that this adjudication of guilt under Count II cannot be sustained because petitioner was never charged under this count.

The petition for certiorari is granted and the Florida Real Estate Commission is directed to vacate its final order adjudging the petitioner guilty of the charges in Count II and suspending his real estate salesman’s registration.

CERTIORARI GRANTED.

CROSS and DOWNEY, JJ., concur.


author: MILLS, Judge.

text:
    George, Washington SYKES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-445.
    District Court of Appeal of Florida, First District.
    April 5, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Sykes was charged with the crime of breaking and entering a dwelling house with the intent to commit a felony, and with the crime of grand larceny. He was convicted by a jury as charged. He appeals from the judgment of conviction and sentence to the state prison.

The issues raised by his appeal are:

1. Whether the trial court erred in failing to exclude a witness and photographs from use at trial where the State failed to disclose them to him after a timely discovery motion was made under Rule 3.220, Florida Rules of Criminal Procedure.

2. Whether the trial court erred in denying several motions for mistrial made by him during the trial.

3. Whether the trial court erred in admitting his fingerprints into evidence over his objection that they were inadmissible because they resulted from an illegal arrest.

Just before the commencement of the trial, it was brought to the trial court’s attention that the State was going to use a witness whose name had just been disclosed to Sykes. Sykes moved the court to exclude the witness, because the witness had not been disclosed in response to his discovery. The court rejected the State’s explanation for failure to disclose, but when the State informed the court that the witness would be used only to prove chain of custody, the court offered Sykes from one to four hours to interview the witness. Sykes asked for only one hour. The court stated it would listen further to Sykes after the interview if he then felt he would be prejudiced by proceeding to trial. The court heard nothing further from Sykes. The court also pointed out that the witness was disclosed to Sykes on the afternoon before the trial and that he was informed by his attorney on that afternoon that he was ready for trial. The court inquired of the attorney why he did not interview the witness that afternoon, but received no response or explanation. The witness later testified at the trial as to the chain of custody of cards bearing fingerprints and, as an expert, on the limited question of whether the prints were sufficiently clear to bear analysis.

Violation of a rule of criminal procedure does not require a reversal of a conviction unless the noncompliance with the rule results in prejudice or harm to the defendant. The rules of criminal procedure are not intended to furnish a defendant with a procedural device to escape justice. Richardson v. State, 246 So.2d 771 (Fla.1971). In the case before us, although the State did not comply with Rule 3.220, Florida Rules of Criminal Procedure, Sykes was given a reasonable opportunity to interview the witness before the commencement of the trial, and was given an opportunity to show prejudice or harm after the interview. His attorney interviewed the witness and at no time thereafter complained that Sykes would be prejudiced or harmed by proceeding to trial. The court took every precaution to guarantee him a fair trial.

After the State had introduced photographs of the scene into evidence, Sykes moved to exclude them because the State failed to produce them to him in response to his discovery. The court properly denied the motion, because it was not timely made.

During examination of the arresting officer by the State, the following took place:

“Q. Where or what if anything was he [defendant] arrested in or on ?
A. He had a vehicle with him that he said belonged to him, it was white over green Cadillac, 1970 Cadillac.
Q. Yes, sir, and upon arresting the defendant, what if anything . . .”

At this point Sykes objected and moved for a mistrial. The court denied the motion for a mistrial, but sustained the objection and instructed the jury to disregard that part of the testimony where defendant said the car belonged to him.

During examination of a correctional officer by the State, the following took place :

“Q. Where have you seen him [defendant] ?
A. At the Duval County Jail on several occasions.”

Sykes objected and moved for a mistrial. The court denied the motion for a mistrial, but sustained the objection, and instructed the jury to disregard the witness’ answer.

During examination of an evidence technician by the State, the State offered a card with latent fingerprints on it into evidence. Sykes objected and moved for a mistrial on the ground that the card had his name on the back of it. The court erased the name, denied the motion for a mistrial, sustained the objection, and instructed the jury to disregard the fact that defendant’s name had been written on the card.

Sykes contends that the denial of his motions for a mistrial, made after prejudicial and inadmissible evidence was brought out in the presence of the jury, violated his right to a fair trial and due process of law.

A mistrial should be granted only when such a fundamental or prejudicial error has been committed as will require the granting of a new trial later. Where no substantial prejudice or harm occurs, the court should deny a mistrial. Where improper questions are asked of a witness in the presence of the jury, the defendant should request the court to instruct the jury to disregard the objectionable remarks. Perry v. State, 146 Fla. 187, 200 So. 525 (1941). The objectional remark by the arresting officer was not responsive to the question, was volunteered, and was not an essential element of proof; the objectionable remark by the correctional officer was not relevant or material, and did not infer guilt of Sykes; and the objection to the defendant’s name on the back of a fingerprint card, where the fingerprints were subsequently identified as the defendant’s fingerprints, has no merit. The court properly declined to declare a mistrial, and properly instructed the jury to disregard the objectionable remarks. Sykes received both a fair trial and due process.

Sykes objected to the use of a set of his known fingerprints, which were taken on a date prior to the fingerprints taken at the scene in this case, and were being used to compare with the fingerprints taken in this case. Sykes objected on the ground that these fingerprints were obtained following an arrest on which no charge was made, therefore, the fingerprints were a result of an illegal arrest. The objection was overruled. Sykes contends that the trial court should have determined the validity of the arrest, and because the arrest was illegal should have sustained the objection.

Rule 3.190(h)(2), Florida Rules of Criminal Procedure, provides that the facts on which the suppression is based must be stated. Rule 3.190(h)(3) provides that before hearing evidence, the court shall determine the sufficiency of the motion to suppress. In the case before us, the objection was not based on facts, therefore, was insufficient. Because no charge is filed against a person, does not mean that there was no probable cause for the arrest. The prosecutor could have declined to file a charge for many reasons. For example, the prosecutor may have felt he could not prove the charge beyond and to the exclusion of every reasonable doubt. On its face, the objection of Sykes failed to state that the arrest was illegal. In this posture, the court did not err in failing to determine by an evidentiary hearing the validity of the arrest.

The record here does not show that the arrest in question was for the sole purpose of obtaining fingerprints. Nor does it show that the arrest was a detention for interrogation and investigation for another crime. It is not shown that the arrest was overreaching governmental misconduct. Therefore, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), relied upon by Sykes, is not applicable to the case before us. Paulson v. State, 257 So.2d 303 (Fla.App.3d, 1972), is applicable. The trial court was correct in overruling the objection.

We affirm the judgment and sentence.

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


author: McCORD, Judge.

text:
    Henry Moore TURNER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Z-34.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    C. John Coniglio, Wildwood, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was convicted of violating § 893.13(3) (a) (4), Florida Statutes, which provides as follows:

“To possess, have under his control, or deliver any device, contrivance, instrument, or paraphernalia with the intent that said device, contrivance, instrument, or paraphernalia be used for unlawfully-administering any controlled substance.”

He was acquitted on the three remaining counts — (1) delivery of marijuana to a person under the age of 18 years, (2) possession of more than five grams of marijuana, and (3) sale of marijuana. § 893.-13(3) (b), Florida Statutes, provides as follows :

“Any person who violates the provisions of paragraph (a) shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083 or § 775.084, except that when the controlled substance is one that the penalty for possession of which is a misdemeanor, then the penalty under paragraph (a) shall be a misdemeanor of the first degree punishable as provided in § 775.082 or § 775.083.”

Appellant contends that his conviction under Count IV must fall since he was acquitted of the first three counts; that having been acquitted of the first three counts, there is no evidence of intent in connection with the fourth count. We disagree. The device (a roachclip taken from the pocket of appellant’s jacket) had marijuana residue on it. Such evidence was sufficient for the jury to infer appellant’s intent to use the device for smoking marijuana.

Appellant also argues that since there was no conviction for possession of marijuana, there was no basis for the trial court to determine under subsection (3) (b) above whether the conviction was a felony or a misdemeanor. While we disagree with appellant’s conclusion, we find that the trial court erred in considering the offense a felony rather than a misdemeanor. As stated above, the marijuana device which appellant was convicted of possessing had marijuana residue on it. Since this was the only evidence of marijuana which pertained to the device and it would amount to less than five grams of marijuana (possession of which would constitute a misdemeanor), the offense of which appellant was found guilty was a misdemeanor of the first degree rather than a felony under subsection (3) (b) above.

We have considered appellant’s remaining contentions and find them without merit.

The cause is remanded to the trial court with directions to vacate the judgment and sentence and enter a new judgment and sentence for the misdemeanor of the first degree.

BOYER, C. J., and RAWLS, J., concur.


text:
    John P. ABBEY, Appellant, v. Harold Ira LIPSKY et al., Appellees.
    No. 75-522.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Ryan & Taylor and Donald L. Brooks, North Palm Beach, for appellant.
    Robert L. Dube, Richard M. Gale, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Hoffman v. Jones, Fla. 1973, 280 So.2d 431; Wheeler v. Yellow Cab Co. of Orlando, Fla.1953, 66 So.2d 501; Babcock v. Flowers, 144 Fla. 479, 198 So. 326; Thompson v. Jacobs, Fla.App.1975, 314 So.2d 797; Brassell v. Brethauer, Fla.App.1974, 305 So.2d 217; Industrial Waste Service, Inc. v. Henderson, Fla. App.1974, 305 So.2d 42; Carson v. Iacona, Fla.App.1973, 281 So.2d 226; Dabney v. Yapa, Fla.App.1966, 187 So.2d 381; 2 Fla. Jur., New Trial § 44.


author: BOYER, Chief Judge.

text:
    TIME FINANCIAL SERVICES, INC., Appellant, v. HILLIARD MOBILE HOMES, INC., et al., Appellees.
    No. AA-306.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    Fred Elefant, Milam & Wilbur, Jacksonville, for appellant.
    French C. Davis, Daytona Beach, and Edwin H. Duff, II, for appellees.
   BOYER, Chief Judge.

Appellants, who obtained a final judgment in the Circuit Court in and for Duval County, Florida, against appellees, and others, has taken this interlocutory appeal seeking our review of a temporary restraining order entered in the Circuit Court in and for Volusia County restraining the sale of certain property by the sheriff of that county pursuant to levy of execution issued in Duval County pursuant to the final judgment entered there. The appellees did not urge in the trial court, nor do they urge here, any irregularity, fraud, nor mistake. No effort was made by appellees to comply with F.S. 56.15. That statute provides that upon receipt by the officer having the execution of the affidavit and bond therein provided for “The officer shall stay proceedings on the execution and return the bond and affidavit to the court from which the execution issued. The court shall pass on the question of illegality as soon as possible. . . .” It is readily apparent that the “court” mentioned in the statute refers to the court from whence the execution issued. We also construe the “court” mentioned in Rule l.SSO(b) RCP to refer to the court which entered the final judgment resulting in the issuance of the execution.

Accordingly, the order here appealed is hereby reversed, without prejudice to any remedies that may be available to appellees in the Circuit Court in and for Duval County, the court in which the final judgment was entered and from whence the execution was issued.

IT IS SO ORDERED.

RAWLS and SMITH, JJ., concur.


text:
    John TOBIAS, Appellant, v. Paul ENGLANDER and Jeanne Englander, his wife, Appellees.
    No. 75-596.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Milton Kelner, Miami, for appellant.
    Jack Block, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Fla.Stat. Chap. 725; and Juliana, Inc. v. Salzman, Fla.App.1965, 181 So.2d 3.


text:
    W. E. LAUDERDALE, and Dorothy Lauderdale, Appellants, v. P. TAVILLA COMPANY, INC., etc., et al., Appellees.
    No. 75-553.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.

      Alldredge & Gray, Miami, for appellants.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R; Berger, Miami, for appel-lees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of appellees in an action arising from personal injuries sustained by appellant, Mrs. Lauderdale, when she slipped and fell on the slippery floor of a stall in the Miami Produce Center. The stall in which the injury occurred was being rented by appellants from the Center on a month to month basis. Appellants and their lessors were on notice of the slippery nature of the floor, especially when wet.

Mrs. Lauderdale slipped and fell at a time when she was aware that the floor had become wet when she had allowed wet produce to be unloaded onto the floor of the stall.

Pursuant to appellees’ motion for summary judgment, the trial court reviewed the pleadings, depositions, affidavits, mem-oranda and other materials presented, and upon consideration thereof entered a summary judgment in favor of the appellees, notwithstanding appellants’ strenuous opposition thereto.

A motion for summary judgment may be granted when it is made to appear from the pleadings, depositions, affidavits of other evidence before the court that there exists no genuine issue of material fact to be tried and that the movant is entitled to a judgment as a matter of law.

Our review of the record on appeal convinces us of the absence of any genuine triable issue and that appellees were entitled to a judgment as a matter of law. Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941); Wilensky v. Perell, Fla. 1954, 72 So.2d 278.

Affirmed.


text:
    Howard GELBMAN, Appellant, v. Henderika ARON, formerly Henderika Gelbman, Appellee.
    No. 75-904.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Albert E. Schrader, Jr., Coral Gables, for appellant.
    Henderika Gelbman Aron, in pro. per.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

We affirm upon authority of Spencer v. Young, Fla.1953, 63 So.2d 334. However, we note and agree with appellant’s contention that the order below contains a mathematical error with regard to the extent of arrearages in child support payments. Therefore, that part of the order specifying these arrearages to be “ . in the sum of $587.00 . . . ” is hereby deleted and the sum of $532.35 is substituted therefor.

Affirmed as modified.


text:
    James Lee INGRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 75-638.
    District Court of Appeal of Florida. Third District.
    April 6, 1976.
    Phillip A. Hubbart, Public Defender, and Carling Stedman, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Johnson v. State, Fla.1975, 314 So.2d 573.


text:
    Joe Henry PARHAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-1069.
    District Court of Appeal of Florida, Second District.
    March 31, 1976.
    Jack O. Johnson, Public Defender, and Stephen O. Rushing, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged m a two-count information with possession of a controlled substance and possession of a prescription drug without a prescription. Appellant entered into a plea bargain providing that he would be sentenced to a maximum of three and one-half years to run concurrently with another three and one-half year sentence that he was then serving at Raiford. Pursuant thereto, appellant pled guilty to both counts, and the state nol-prossed a second information charging appellant with possession of a short barrel shotgun. Appellant was adjudicated guilty on both counts and given a sentence of three and one-half years in the state penitentiary to run concurrently with the sentence he was already serving.

It appears that the substance which appellant was charged with possessing in each count of the information was the same substance. Hence, there can be no sentence for the second degree misdemean- or possession of a prescription drug without a prescription. Taylor v. State, Fla. App.2d, 1974, 289 So.2d 772. Accordingly, the trial court is directed to correct its records to reflect that the three and one-half year sentence which was entered pursuant to the bargain is applicable only to the felony conviction of possession of a controlled substance under the first count of the information. Otherwise, the judgments and sentence are

AFFIRMED.

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


text:
    Hilario LOPEZ, Appellant, v. LOSADA TRUCK AND EQUIPMENT, INC., Appellee.
    No. 75-864.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    April 6, 1976.
    Brian R. Hersh, Miami, for appellant.
    Sheldon R. Rosenthal, Miami, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Desandalo v. F & C Tractor & Equipment Co., Fla.App.1968, 211 So.2d 576, 580.


text:
    CITY OF HOLLYWOOD and Paul E. Wimberly, Director of Finance, Appellants, v. HOLLYWOOD LODGE #21, FRATERNAL ORDER OF POLICE, Appellee.
    No. 75-986.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    Rehearing and Certification Denied April 20, 1976.

      J. Bart Budetti, Hollywood, for appellants.
    Jerome M. Rosenblum, Hollywood, for appellee.
   DOWNEY, Judge.

Appellee, Hollywood Lodge #21, Fraternal Order of Police, brought suit on behalf of all police officers of the City of Hollywood for declaratory and injunctive relief against the City of Hollywood. Appellee was granted a final summary judgment which appellant contends was erroneous.

The thrust of appellee’s complaint is that the city has not been making proper contributions to the City of Hollywood Police Pension Fund because it has been improperly reducing its annual contribution to that fund by the amount which the pension fund receives from the one percent excise tax levied upon casualty insurance premiums covering property within the corporate limits of the City of Hollywood, pursuant to Chapter 185 F.S. 1973. This was an appropriate case for summary judgment as there was no genuine issue that the following are the material facts of this case.

The City of Hollywood has a police pension fund established by Chapter 69-1152, Special Acts of 1969. Under that chapter, as amended by a November 1973' referendum, the members of the pension fund are required to pay 7% of their salary into the pension fund. Pursuant to Chapter 185 F. S. 1973 the city levies a tax of 1% on casualty insurance premiums covering property in the city. Chapter 185 provides that the proceeds of the 1% levy must be used for the police pension fund. Thus, for fiscal 1973 the sources for funding the Police Pension Plan were: a) contributions from police officers, $142,000, b) State of Florida, Premium Tax levy pursuant to Chapter 185, supra, $103,000, c) fund investment income, d) City of Hollywood contribution, $296,000. If the 1% premium tax proceeds had not been paid into the plan the contribution from the city would have been $399,000 instead of $296,000.

The circuit court apparently based the judgment under review upon a finding that the appellant city was using the funds it received pursuant to the tax levied on authority of § 185.08 F.S. “in violation of the legislative mandate as expressed in Section 185.01, Florida Statutes, and as interpreted by the Florida Supreme Court in the case of City of Miami v. Carter, 105 So.2d 5 (1958).” This finding and the circuit court’s entry of an injunction prohibiting appellants “from using any of the funds received pursuant to Chapter 185, Florida Statutes, to decrease the city’s liability to fund the Police Pension Plan,” together with the circuit court’s quotation of the following portion of Chapter 69-1152, § 2.-4:

“The money required to meet all obligations of this Pension Plan, over and above the personal contributions forthcoming from members, is hereby declared to be the liability and obligation of the City of Hollywood. Therefore, the City Commission of the City of Hollywood, Florida, shall budget annually, in the manner provided by law, to produce the amounts required to be contributed by said City to this system.”

lead us to believe that the court concluded that the city had a duty to furnish the difference between the amount necessary to maintain the pension fund and the amount the pertinent legislation required the police officers to pay into the pension fund.

We hold that this conclusion is erroneous and must be reversed because the city’s method of computing its required contribution was proper under the circumstances existing at the times pertinent to this case.

The appellate briefs reflect agreement between the parties on one matter: the judgment under review is substantially correct if the holding announced in City of Miami v. Carter, Fla.1958, 105 So.2d 5, applies to the present case. However, our analysis of the Carter decision convinces us that none of its pronouncements supports the circuit court’s conclusion that the manner in which the appellant city was supplying money to the policemen’s pension fund was unlawful.

The facts of the two cases are entirely dissimilar. In the Carter case the pension for firemen and policemen ceased to exist when the city created a retirement system for all city employees, including firemen and policemen. On the same day the city abolished the separate retirement system (December 6, 1939), it adopted an ordinance levying a 1% tax on certain insurance policies under authority granted by Chapter 175, F.S. The city deposited the proceeds of that tax in the general retirement system, from which all city employees received pension payments.

A group of city firemen filed an action against the city seeking an accounting of funds the city received from the Chapter 175 1% tax during the period December 6, 1939-June 5, 1952. The firemen based their action on the ground that the city’s placing of the Chapter 175 tax funds into the general retirement system was a deprivation of their property without due process of law, since Chapter 175 required such funds to be held and administered for the sole use of firemen and their dependents.

The complaint asked the court to have the city pay the Chapter 175 tax money it received during the period December 6, 1939-June 5, 1952, plus interest, into the general retirement fund, “there to be held in a special fund and administered for the sole benefit of firemen members and their dependents, such benefits to be in addition to the benefits already provided for them under said retirement system.”

The city’s answer, among other things, asserted the city had received $434,946 in Chapter 175 tax proceeds during the period December 6, 1939 through 1951. However, it also asserted that the city had paid for the benefit of firemen that amount plus $1,119,075 from the general retirement system, contending in essence that the firemen were entitled to no relief because under the city’s general retirement system the firemen had received more in benefits than the amount which they sought from the city in their accounting action.

The circuit court ruled that under Chapter 175 the city had the duty to place the Chapter 175 tax receipts sued for (which the court found amounted to $436,920.68) into a separate firemen’s pension fund (to be solely for the benefit of firemen and their dependents) within the general retirement fund. Moreover, the firemen were to receive the benefits of that special fund in addition to the benefits they received under the general retirement system.

On appeal the city urged that the circuit court’s judgment be reversed for the reason, among others, that the city had used the Chapter 175 tax proceeds properly, i. e., for the benefit of firemen and their dependents.

The Supreme Court stated the key appellate question to be: “whether a city can use the proceeds of the tax authorized under Chapter 175, F.S.A. for the benefit of all the members of the city relief or pension fund,” and answered it in the negative, thereby holding that the funds must be used exclusively for the benefit of firemen and their dependents.

We conclude that the Carter case announced the following rules:

(1) A city which levies a 1% tax on insurance premiums under authority of Chapter 175 (or Chapter 185) must place the proceeds of that tax into a special pension system or fund; the only city employees to whom pension payments may be made from that special system or fund are firemen (or policemen);
(2) The city may not use those proceeds to reduce the amount it must contribute to a general pension system it has set up for all city employees.

The present case involves only a special pension system for policemen; it does not involve a general pension system for all city employees. The appellant city has not intermingled receipts from Chapter 185 tax levies with any other funds nor has it used those receipts to reduce the contribution it must make to any general pension system for all city employees. Therefore, the trial court’s conclusion that the appellant city is using the Chapter 185 tax receipts “in violation of the legislative mandate as expressed in Section 185.01, Florida Statutes, and as interpreted by the Florida Supreme Court [in the Carter case]” is clearly erroneous, as is the injunction prohibiting the appellants “from using any of the funds received pursuant to Chapter 185, Florida Statutes, to decrease the city’s liability to fund the Police Pension Plan.”

As amended in 1959, Section 185.35, F. S., provides in section (1) that in order for municipalities with their own pension plans to participate in the distribution of the tax fund established in §§ 185.07-09, F.S., their retirement funds must meet standards provided in said section. One of said standards is provided in § 185.35(1) (j):

“Commencing on July 1, 1964, the municipality shall contribute to the plan annually an amount which together with the contributions from the police officers, the amount derived from the premium tax provided in § 185.08 and other income sources will be sufficient to meet the normal cost of the plan and to fund the actuarial deficiency over a period not longer than forty years.”

Thus it seems clear that to determine the amount for which the city is liable annually, one begins by determining the sum of the police officers’ contributions and the premium tax proceeds the city received pursuant to Chapter 185 F.S. and the other income sources. Next, one' determines the additional amount necessary to meet normal costs of the plan and the amount necessary to fund the actuarial deficiency over the stated period. The latter amount should be the city’s annual additional contribution to the fund. The foregoing method of determining the city’s annual contribution will prevail unless the trustees of the pension plan elect the alternative method set forth in Section 185.35(2), which provides:

“When a municipality has a policemen’s retirement plan which meets the standards set forth in subsection (1), the board of trustees of the pension plan or the official pension committee or agency, may place the income from the premium tax in § 185.08 in its existing pension fund for the sole and exclusive use of their policemen (or for firemen and policemen where included), or may use said income to pay extra benefits to the policemen.”

If the trustees elect to place the income from the premium tax into its existing pension fund (as the trustees of the fund in the present case are doing), then the formula or method of contributions will remain as we outlined above. On the other hand, if the trustees elect to use the income from the premium tax to pay extra benefits to the policemen, then the city’s annual contribution would probably have to be increased to offset the elimination of the premium tax as a source for obtaining funds for the police pension plan.

The record fails to reflect that the trustees of the police pension plan have ever elected to use the proceeds from the annual premium tax to pay extra benefits to the policemen. Therefore, the city properly placed those proceeds into the policemen’s pension fund. The provision of the final judgment enjoining the city from using the annual premium tax proceeds in determining the annual amount of the city’s contribution to the pension plan violates the clear mandate of § 185.35 (1) (j) and is thus erroneous as an improper intrusion into the legislative domain. Cf. City of Miami Beach v. Kaiser, Fla.App.1968, 213 So.2d 449, 453. It therefore follows that the further provision of the final judgment authorizing the use of the premium tax money to offset the individual contributions of the policemen to the pension fund is also improper because that provision violates § 185.35(2) F.S.1973, and it too constitutes an improper intrusion into the legislative domain by making the payment of extra benefits from premium tax receipts mandatory rather than elective.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for the appellants.

MAGER, J., and BASKIN, NATALIE, Associate Judge, concur.

      . The Carter ease involved Chapter 175 F.S., not (as the present case does) Chapter 185 F.S. However, because of the similarities between the two chapters cases construing one are applicable to cases involving the other. Therefore the Carter case is relevant to the present case, but it does not control it.


text:
    Jerry Lee TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-154.
    District Court of Appeal of Florida, Second District
    March 31, 1976.

      Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with three counts of robbery and one count of using a firearm in the commission of a felony. The jury returned verdicts as follows:

Count I: Guilty of the lesser included offense of grand larceny.
Count II: Guilty of the lesser included offense of petit larceny.
Count III: Guilty of robbery as charged.
Count IV: Guilty of the use of a firearm in the commission of a felony as charged.

Appellant was given concurrent sentences in various lengths up to life imprisonment.

There was evidence that the property stolen in the offense charged under count I was worth more than $100. However, this fact was not alleged in the information. Therefore, appellant could only have been convicted of petit larceny under this count. Haley v. State, Fla.App.2d, 1975, 315 So.2d 525. The conviction of grand larceny under count I is hereby vacated with directions to enter a judgment of conviction for petit larceny. Since appellant was given the maximum sentence for grand larceny, the court may enter the maximum sixty-day sentence for petit larceny without the necessity of appellant being present.

The firearm used in count IV was during the commission of the robbery under count III. Therefore, the lesser sentence imposed under count IV is hereby vacated. Cone v. State, Fla.1973, 285 So. 2d 12. Otherwise, the judgments and sentences are

AFFIRMED.

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


author: PER CURIAM. NATHAN, Judge

text:
    Richard FORD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1074.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By an information the appellant was charged with having in his possession a certain automobile which he knew or had reason to believe had been stolen (§ 814.03 (2) Fla.Stat., F.S.A.), and with buying, receiving or aiding in the concealment of said stolen automobile knowing the same to have been stolen (§ 811.16 Fla.Stat., F.S.A.). He was found guilty of those crimes on a jury trial, was so adjudged and was sentenced to imprisonment for a term of five years. This appeal by the defendant ensued.

On review of the record we find no merit in the appellant’s contention of insufficiency of the evidence to support the judgment of conviction of the offenses charged. No useful purpose would be served by reciting here the evidence and the inferences reasonably to be drawn therefrom, which we regard as competent substantial evidence to support the verdicts.

On authority of Brown v. State, Fla. 1963, 206 So.2d 377, and Gilford v. State, Fla.1975, 313 So.2d 729, we hold the trial did not commit error by failing to charge the jury on temporary use of a motor vehicle “without the authority of the owner or his representative” (§ 812.041) as being a lesser included offense of the charged offense of possession of a stolen automobile. It was not a necessarily included lesser offense, and there was absence of allegation and evidence thereof to make it basis for a jury charge. Also there was absence of proper request for the charge.

We reject as unsound the contention of the appellant that the court erred by failing to charge the jury that in order to return a verdict of guilty of possession of a stolen motor vehicle, the jury must find the defendant intended to permanently deprive the owner of possession. That is not an element of the offense that was charged, which, as set out in § 814.03(2) is: “Any person who should have in his possession any motor vehicle, aircraft, boat, or boat motor which he knows or has reason to believe has been stolen, * *

Denial of defendant’s motion for mistrial for a remark of the prosecutor in opening argument was not error. The remark, or portion of a remark thus referred to by the appellant, reasonably was more subject to a construction that would make it wholly without prejudicial effect, than to a construction or interpretation that would render it harmful. Denial of the motion for mistrial was a matter within the sound judicial discretion of the trial court in the situation involved.

No reversible error having been shown, the judgment is affirmed.

NATHAN, Judge

(dissenting).

I respectfully dissent and would reverse on the question of the court’s failure to charge the jury that in order to return a verdict of guilty under § 814.03(2), Fla. Stat, the jury must find that the defendant intended to permanently deprive the owner of possession. In my opinion, intent to permanently deprive the owner of his property is an essential element of § 814.03(1) and (2). See Caves v. State, Fla.App.1974, 302 So.2d 171, 173, which refers only to § 814.03(1), theft, and see Cohen v. State, Fla. 1960, 125 So.2d 560.


author: McCORD, J., Acting Chief Judge.

text:
    Norman STEPHENSON and Lake Butler Apparel Company et al., Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, State of Florida, Appellee.
    No. Y-320.
    District Court of Appeal of Florida, First District.
    March 30, 1976.

      Charles Chadwick Adams, Jacksonville, for appellants.
    Robert A. Chastain, and Leslie McLeod, Jr., Tallahassee, for appellee.
   McCORD, J., Acting Chief Judge.

This is an appeal from an order denying appellants’ motion for summary judgment and injunctive relief. The appeal was taken to the Supreme Court of Florida and was transferred by that court to this court, the Supreme Court finding that the issues involved are matters within the jurisdiction of this court.

By their complaint, appellants contended in the trial court that appellee, the Department of Agriculture and Consumer Services of the State of Florida, was without statutory or constitutional authority to require their trucks to stop at appellee’s road-guard stations for agricultural inspection, alleging their trucks do not carry agricultural products. They sought an injunction to prevent appellee from requiring their trucks to stop. The trial judge, in his order denying appellants’ motion for summary judgment, pointed out that the Supreme Court of Florida in Johnson v. State, Fla., 128 So. 853 (1930), upheld the constitutionality of the citrus inspection code saying:

“The protection of a large industry constituting one of the great sources of the state’s wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the state is affected to such an extent by public interest as to be within the police power of the sovereign.”

The trial court then found that the appel-lee’s actions to ascertain what agricultural products, if any, appellants are transporting have been reasonable and no abuse of discretion has been shown. The trial court further pointed out that the agricultural inspection laws are “regulations designed to promote the public health, safety and welfare in order to determine whether there has been compliance with prescribed standards.” The court made the further affirmative finding:

“It is within the police powers of the state to cause to stop for inspection all trucks operating on the public highways.”

The statutes which purportedly authorized appellee to require appellants’ trucks to stop for agricultural inspection are Sections 570.15 and 570.44(3), Florida Statutes. Subsequent to the entry of the trial court’s order appealed from, Section 570.15, Florida Statutes, was amended. This being a suit in which appellants seek prospective relief, we will consider the law as it exists at this time rather than as it existed at the time of the entry of the order appealed from. See Florida East Coast Railway Company v. Rouse, Fla., 194 So.2d 260 (1967); Phillips v. Phillips, Fla. App.(1st), 287 So.2d 149 (1973).

§ 570.44(3), Florida Statutes, relating to the powers and duties of appellee’s Division of Inspection, provides as follows:

“BUREAU OF ROAD GUARDS. — It shall be the duty of this bureau to operate and manage those road guard inspection stations of the state and to perform the general inspection activities relating to the movement of agricultural, horticultural, and livestock products and commodities as directed by the department and the division director.”

§ 570.15, Florida Statutes, 1975, provides in pertinent part as follows:

“(l)(a) The commissioner, assistant commissioner, directors, counsel, experts, chemists, agents, inspectors, road-guard inspection special officers, and other employees and officers of the department shall have full access at all reasonable hours to all:
2 4 * * *
2, * * *
3# * * *
4 * * *
5^ * * *
6. Trucks;
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicles bearing an RV license tag;
8. Truck and motor vehicle trailers;
9 ^ * *
10. All records pertaining thereto;
used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.
(c) * * *.
(2) It shall be unlawful for any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.”

Appellants’ affidavit in support of their motion for summary judgment stated that their trucks are used to transport apparel, textiles and items related to the manufacture of clothing; that the trucks are never used to transport agricultural, horticultural, or livestock products or other products regulated by appellee. Appellants contend that to require their trucks to stop for inspection' at appellee’s inspection stations is a deprivation of appellants’ right to be free from unreasonable searches and seizures, their right to due process of law, their right to equal protection of the law, their right to privacy and to travel freely on the highways of the United States, as guaranteed by the United States Constitution and the Constitution of Florida. We disagree.

Appellee has full authority under the police power of the State of Florida to conduct agricultural inspections of the vehicles mentioned in the above statutes provided such inspections are made pursuant to the terms of said statutes. The inspections are necessary in order that appellee may carry out its responsibilities relating to disease control, fruit and vegetable grading and other similar matters required by law, appellee’s regulations and federal marketing orders. Under subsection (2) of section 570.15 above, all trucks and motor vehicle trailers [not limited to those mentioned in subsection (1)] are required to stop at appellee’s road-guard inspection stations for inspection. Unless such a vehicle stops at the station, it cannot be determined by the inspectors whether or not it is being used for transportation of “any food product, any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.” Upon stopping, the majority of operators of such vehicles will probably have no objection to such an inspection and will consent to same; but as provided in the statute, if access is refused, the vehicle may not be searched without the inspector obtaining a search warrant or without a legal basis for search without a warrant pursuant to established law. Such in no way impairs appellants’ right to be free from unreasonable search and seizure, their right to due process of law, or their right to equal protection of the law. We do not find that it violates any constitutional right of appellant.

From the record it appears that appellee' has a procedure whereby a concern may qualify for a permit through which its trucks, upon stopping, will be given clearance through exhibiting their bills of lading, but appellants have not sought to avail themselves of this procedure.

We have considered the opinion of the United States Court of Appeals, Ninth Circuit, in United States v. Martinez-Fuerte, 514 F.2d 308 (1975), which holds that federal immigration agents cannot constitutionally stop automobiles on the chance of discovering something illegal; that such is a violation of the Fourth Amendment of the Constitution of the United States. Also, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court said:

“It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime —‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”

There the court went on to hold that due regard for the practical necessities of law enforcement justifies something less than probable cause for brief informal detention and ruled that a “founded suspicion” is all that is necessary.

As stated by the District Court of Appeal, Fourth District, in Gustafson v. State, Fla.App., 243 So.2d 615; reversed on other grounds, State v. Gustafson, Fla., 258 So.2d 1 (1972); Aff., 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973):

“Florida courts have recognized use of detentions which fall short of technical arrests. Chance v. State, Fla.App.1967, 202 So.2d 825 (investigation of a liquor store robbery); Lowe v. State, Fla.App. 1966, 191 So.2d 303 (investigation of robbery suspects). A license check evidently falls into this category. City of Miami v. Aronovitz, Fla. 1959, 114 So.2d 784.”

The foregoing cases, with the exception of those relating to drivers’ license checks, all dealt with criminal investigations. The inspections authorized by statute in the case sub judice fall in a different category. Agricultural inspections appear to be more nearly akin to drivers’ license checks than detentions for criminal investigations, but we have found no authority and none has been cited to us dealing with agricultural inspections of motor vehicles.

It is our view that the requirement of the foregoing statute that all trucks and trailers stop at the inspection stations of appellee for agricultural inspection is entirely reasonable and is a valid exercise of the police power of the state. The stopping of a vehicle for such purpose is not a search and is not an unreasonable seizure. Only unreasonable searches and seizures are prohibited by the Fourth Amendment.

Affirmed.

SMITH and MILLS, JJT., concur.


text:
    Margaret NANCE, Appellant, v. JAMES ARCHER SMITH HOSPITAL, INC., Appellee.
    No. 75-415.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 22, 1976.

      Rentz, McClellan & Haggard, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Mc-Math, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a judgment for defendant entered in accordance with motion for directed verdict in this action for wrongful death.

The unfortunate events giving rise to this case are as follows. On August IS, 1971 Franklin Clayton, a young male, was behaving strangely and his grandmother, Annie Clayton, became concerned. It appears Franklin had taken a pill containing LSD. Grandmother Clayton along with two ■ companions ■ drove Franklin to James Archer Smith Hospital, defendant herein. Upon entering the hospital, the personnel were informed that Franklin had taken “acid.” Grandmother Clayton was then advised by the ward clerk that the Hospital did not have the proper testing facilities to ascertain the type of drug Franklin had taken which was necessary before proper treatment could be prescribed and they should take him to Jackson Memorial Hospital which had the necessary testing facilities. Thereupon Franklin, his grandmother and the two companions got into their car and began to drive to Jackson Memorial Hospital. Shortly thereafter Franklin jumped out of the car, ran berserk through an apartment building and fatally stabbed Earnest Nance.- Margaret Nance, wife of the victim and appellant herein, filed a wrongful death action against the Hospital and alleged the Hospital was negligent in turning away Clayton inasmuch as he was an emergency case and a danger to himself and others. The jury returned a verdict for $150,000 in favor of Mrs. Nance. The trial judge, having reserved ruling on defendant’s motion for directed verdict made at the close of plaintiff’s case and again at the conclusion of all the evidence, entered judgment for the defendant.

Plaintiff Nance appeals from this judgment. We affirm.-

The question of proximate cause in a negligence action is one for the court where there is an active and efficient intervening cause. Kwoka v. Campbell, Fla. App.1974, 296 So.2d 629. Further, where the negligence of another, constituting an independent intervening efficient cause of the accident, was not reasonably foreseeable, no liability may be fastened on the defendant. Rawls v. Ziegler, Fla. 1958, 107 So.2d 601.

The record is replete with evidence that Franklin, during the time he was present at the defendant Hospital, did not exhibit any behavior which could be termed erratic or threatening and we conclude there was no reasonable foreseeability that Franklin would engage in the violent behavior which resulted in the death of plaintiff’s husband. We also note that defendant hospital did not have the facilities to conduct the necessary tests to prescribe treatment.

The trial judge was correct in granting defendant’s motion for directed verdict and entering judgment in accordance therewith.

Affirmed.


text:
    Jette SCHLAPIK, Appellant, v. Miles SCHLAPIK, Appellee.
    No. 75-868.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Hacker & Phelps, Miami, for appellant.
    Pelzner & Schwedock, Miami, for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

We are asked to review an order modifying a final judgment dissolving a marriage upon a record which does not include any of the testimony before the trial judge. It is apparent from the record and the findings of fact that the trial judge heard extensive testimony.

The distinguishing feature in this case is that the trial judge determined that the former wife was not entitled to any alimony after an expiration of four and one-half years from the original award. It is clear that there are circumstances under which alimony awarded may be terminated because of a change of circumstances. See 18 A.L.R.2d 10, 19.

Under the record presented to us, we are unable to determine that the trial judge abused his very broad discretion in this matter. See the rule in Vilas v. Vilas, 1943, 153 Fla. 102, 13 So.2d 807; and Coggan v. Coggan, Fla.App.1968, 214 So.2d 368.

AFFIRMED.


text:
    MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., Appellant, v. CORDIS CORPORATION, Appellee.
    No. 75-512.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 22, 1976.
    Milton Kelner, Miami, for appellant.
    Smith, Mandler, Smith & Parker and Joe N. Unger, Gunn, Venney & Buhler, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Mount Sinai Hospital of Greater Miami, Inc. appeals an adverse final judgment entered pursuant to a jury verdict for the defendant in this action for determination of the ownership of patent rights to an implantable synchronous pacemaker and other equitable relief.

The factual background of this case is set out in Mount Sinai Hospital of Greater Miami, Inc. v. Cordis Corporation, Fla. App.1973, 285 So.2d 645 where this court reversed the summary judgment for the defendant, appellee herein Cordis Corporation, and remanded the cause for trial. Plaintiff, Mount Sinai Hospital, to prove its case introduced evidence in support of the theory that if an employee is employed for the express purpose of using his inventive faculty in the interest of his employer, the latter is entitled to all inventions made by him in performance of the contract. State Board of Education of Florida v. Bourne, 150 Fla. 323, 7 So.2d 838 (1942); State v. Neal, 152 Fla. 582, 12 So.2d 590 (1943).- Plaintiff moved for a partial directed verdict upon the ground that its entitlement to the synchronous implantable pacemaker and the respective patents were shown by the undisputed evidence to exist as a matter of law. The motion was denied and the cause submitted to the jury which returned a verdict in favor of the defendant. This appeal ensued.

Plaintiff Hospital first contends that the trial court erred in denying its motion for directed verdict thereby refusing to hold, as a matter of law, that the invention, which the plaintiff had hired and paid the defendant to devise, rightfully belonged to it. We cannot agree.

The record illustrates that at the very least the evidence of whether defendant Cordis Corporation was employed to devise an implantable synchronous pacemaker was conflicting and, therefore, correctly submitted to the jury for its determination. We also note that the patents were issued to protect a unique phase of the electronic circuitry and simplified remote ground system conceived by the defendant and not a synchronous pacemaker. Thus, we find the trial judge was correct in denying the motion for partial directed verdict.

We have also considered plaintiff’s remaining points on appeal and find them to be without merit.

Affirmed.


text:
    INTEGON INDEMNITY CORPORATION, Appellant, v. Jack LENKOWITZ, Appellee.
    No. 75-631.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 22, 1976.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellant.
    Kates, Ress, Gomez & Rosenberg, North Miami, and Linda M. Rigot, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Criterion Insurance Company v. Gutierrez, Fla.App.1975, 319 So.2d 70.


author: PER' CURIAM.

text:
    Sydney LEVINE, Appellant, v. Rachel D. LEVINE, Appellee.
    No. 75-1081.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 22, 1976.

      Eleanor Levingston Schockett, Miami, for appellant.
    Burton D. Greenfield, Coral Gables, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER' CURIAM.

Appellant, former husband of appellee, seeks reversal of an order denying his petition for modification of property settlement.

The marriage between appellant, Sydney Levine, and appellee, Rachel Levine, was dissolved on March 3, 1972, and incorporated into the dissolution judgment was a property settlement which provided in pertinent part that (1) Rachel have custody of their minor son; (2) Sydney pay $75 per week alimony and $50 per week child support; (3) in the event Sydney’s income exceeded $20,000, Rachel would receive 15% of the excess, i. e. 71^'% as child support • and 7j^% as alimony; and (4) under no circumstances would the alimony or child support be reduced unless there is a substantial decrease in Sydney’s adjusted gross income. In September 1972 Sydney' developed cardiomyopathy, a disabling form of heart disease, and as a result he became totally disabled and was forced to give up his medical practice. He began receiving $2,550 per month under his professional disability policy, $100 per month pension from the Veterans Administration (VA) and $268 per month in social security benefits. In addition, his minor son and second wife were each receiving $106.80 per month from the Social Security Administration as dependants of a disabled person. On February 4, 1974 Sydney filed a petition for modification and prayed that (1) he be awarded custody of their minor son inasmuch as by agreement of the parties the child presently was residing with him, and (2) the alimony payments be terminated on the ground that he is permanently and totally disabled from any gainful employment. Rachel filed a response to the petition and a motion to punish for contempt for, inter alia, being in arrears in alimony payments. By order of July 3, the chancellor changed the custody of the minor son from Rachel to Sydney and found that there was no child support payments due Rachel. At final hearing on June 5, 1975 the chancellor found that Sydney had a net yearly income of $20,000 at the time of the dissolution of his marriage to Rachel and presently has a net income of $30,600 per year, plus the VA pension and social security benefits; whereas, Rachel, who holds a master’s degree, is employable only in her present capacity as a jewelry craftsman and earns $70 per week. Thereupon, he entered the appealed order denying the petition for modification and directed Sydney (1) to make the back payments of alimony, (2) to continue to pay Rachel weekly alimony of $75, (3) to pay an amount equal to 7Vi% of his disability income (over $20,-000) other than that received from the VA and Social Security Administration, (4) to pay Rachel’s attorney’s fees, and (5) to pay the sum of $860.95 pursuant to that clause of the settlement agreement wherein he consented to pay the existing debts incurred by the parties up to and including the date of the signing of the agreement. Appellant primarily contends the chancellor erred in failing to find there was a substantial change of circumstances warranting a termination of alimony. We cannot agree.

The record reflects appellant’s income has increased, not decreased and, thus, the chancellor was correct in denying appellant’s petition to terminate alimony. See Adams v. Adams, Fla.App.1973, 273 So.2d 794; Bloemendaal v. Bloemendaal, Fla.App.1973, 275 So.2d 30; Osman v. Osman, Fla.App.1973, 280 So.2d 67.

We also considered appellant’s remaining points on appeal and conclude that appellant has failed to demonstrate an abuse of discretion on the part of the chancellor.

We further find that appellee in her cross-appeal has failed to demonstrate an abuse of discretion on the part of the chancellor.

Affirmed.


text:
    Gary R. ELMY, Appellant, v. STATE of Florida, Appellee.
    No. Y-287.
    District Court of Appeal of Florida, First District.
    March 25, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

AFFIRMED. See Dees v. State, 291 So.2d 195 (Fla.1974) ; United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); People v. Alvarez, 236 Cal.App.2d 106, 45 Cal.Rptr. 721 (Cal.App.4th 1965), and Silva v. State, Fla.App. 1st, 327 So.2d 107, opinion filed December 2, 1975.

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


text:
    STATE of Florida, Appellant, v. Robert James WARREN, Appellee.
    No. Z-393.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Roy M. Kinsey, Jr., of Kinsey, Troxel & Mann, Pensocola, for appellee.
   BOYER, Chief Judge.

The State of Florida, by this interlocutory appeal pursuant to F.S. 924.071, seeks our review of an order of the trial judge suppressing evidence resulting from a search of the person of appellee following his arrest for a misdemeanor (assault and battery) which appellee claims was not committed in the officer’s presence. The sole point in issue is the validity of the arrest.

On the evening of the subject arrest, the arresting officer, incident to an investigation of a disturbance at a lounge, handcuffed a male juvenile to the shotgun rack in his patrol cruiser. Thereafter, while interviewing another witness four to five feet away the officer observed appellee leaning partially inside the window of the cruiser, make a motion with his arm, at which time the handcuffed juvenile exclaimed “Oh, he hit me.” Appellee replied, “Yes, but he hit me first.” Appellee was thereupon placed under arrest “for assault on the juvenile”.

Based upon the testimony of the police officer, which revealed the above recited facts, the trial judge held that the arrest of the defendant was illegal “as it was made by Deputy Collins for the misdemeanor of assault and battery that was not committed in the officer’s presence” and granted a defense motion to suppress evidence of narcotic drugs and paraphernalia found upon the person of appellee during the body search following his arrest.

F.S. 901.15 permits a warrantless arrest for a misdemeanor only when committed “in the presence of the officer.”

In Malone v. Howell, Sup.Ct.Fla.1939, 192 So. 224, the Supreme Court of Florida said:

“An arrest- without a warrant for a misdemeanor, to be lawful, can only be made where the offense was committed in the presence of the officer — that is it must have been within the presence or view of the officer in such a manner as to be actually detected by the officer by the use of one of- his senses. . . .” (192 So. 226, emphasis added)

In a moonshine case, Brown v. State, Sup.Ct.Fla.1956, 91 So.2d 175, the Supreme Court said:

“. . . Moreover, when appellant voluntarily admitted that his ranch wagon was stocked with moonshine, such admission was tantamount to the commission of the offense of possessing illicit liquor in the presence of the officer. When an offense is committed in the officer’s presence, he is authorized to arrest without a warrant.” (91 So.2d 177)

In Kirby v. State, Fla.App. 4th 1969, 217 So.2d 619, our sister court of the Fourth District had occasion to rule upon the validity of a warrantless arrest for the misdemeanor of allowing an unlicensed driver to operate a motor vehicle upon a public street (Section 322.36, F.S.1967). That Court held that a clear verbal admission of an offense is sufficient to make the offense one “committed in the presence” of the arresting officer, citing as authority Brown v. State, supra, and 6 C.J.S. Arrest § 5, page 582 et seq., and cases cited therein.

Going much further than we need in the case sub judice in order to sustain the validity of the subject arrest, our sister court of the Fourth District, in Rosenberg v. State, Fla.App. 4th 1972, 264 So.2d 68, citing as authority City of Miami v. Albro, Fla.App. 3rd 1960, 120 So.2d 23 and Sanches v. Buchanan, Fla.App. 3rd, 175 So.2d 50, held that in passing upon the legality of a warrantless arrest for a misdemeanor alleged to have occurred in the presence of the arresting officer “The determining factor is not whether the arrested person is actually guilty, but whether or not the officer had substantial reason to believe that such person was committing a misdemean- or.” (264 So.2d 69, emphasis added)

We conclude that, under the facts as revealed by the uncontroverted evidence in this case, the misdemeanor was committed “in the presence of the officer” within the contemplation of F.S. 901.15.

REVERSED.

McCORD and MILLS, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    Floyd BENTON, Appellant, v. STATE of Florida, Appellee.
    No. X-181.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    Ben W. Thompson, Jr., Thompson & Gilleland, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Appellant-defendant Benton appeals a judgment and sentence of possession of a firearm by a convicted felon. Once again we are confronted with the legality of a search of an automobile incident to an arrest for a traffic violation. Thus, the primary point now presented is that the trial court erred in not granting Benton’s motion to suppress.

Leon County Deputy Sheriff Chick, the arresting officer, and Auxiliary Deputy Sheriff Grant were the principal witnesses for the state. Chick testified that Benton drove his automobile through a radar set up at a speed of 72 miles per hour resulting in his stopping Benton. He further testified:

“I approached the automobile, had Mr. Benton get out and follow me back to my car and sit in my car instead of writing the citation on the highway ....
“He signed the tickets and we went back to his automobile and he had an invalid inspection sticker; and upon noticing the invalid inspection sticker, I issued another citation for that.
“. . . when Mr. Benton got back in his automobile, he left in a very reckless manner. He sort of spun his car sideways onto the highway ... he proceeded to pick up a little bit more momentum by burning his tires.”

Officer Chick then related how he again stopped Benton and advised him that he was going to charge him with reckless driving and take him to the county jail. We further quote from Officer Chick’s testimony:

“At this time . I wanted to secure his car on the road, and I asked Mr. Benton if he would like for me to have his car towed in, or would he like for the other officer which was still following me at the time, which was Doctor Grant, if it would be all right for this other officer to drive his car to the jail for security reasons. He refused.
“Doctor Grant watched Mr. Benton as I approached his automobile to secure his car. While we were back there trying to get Mr. Benton to sit down in my car, I smelled alcohol on his breath. . . .
“I went to his car. I secured the driver’s side first, due to oncoming traffic, just took the keys out, opened it up, locked it and went around to the passenger’s side, and I opened the door of the passenger side, I looked in the back seat, I looked in the passenger’s sid'e in the front seat, and on the floor. I leaned across the seat — I was looking for evidence of alcohol that he had possibly been drinking, to find out what he had been drinking ... I run my hand up underneath the front seat where possibly if he had had a bottle while he was going down the road, or a beer, turning it up, he could have slipped it up underneath the front seat.
“As I ran my hand just a hand’s distance underneath the front seat, I felt an object and it turned out to be — [a .357 caliber Ruger Magnum pistol]”

Officer Grant corroborated Officer Chick’s testimony: “Then he [Chick] asked Mr. Benton if he wanted to leave his car on the side of the road or to have his car towed to the jail. Mr. Benton said leave it on the side of the road.”

The trial court, in denying the motion to suppress, stated:

“THE COURT: The Court feels that under the circumstances the officer had the right to gather, by a cursory examination of the premises immediately occupied by the defendant, for further evidence in the preparation of a case of DWI, that is, a bottle or can or whether it be empty or full or half; and secondly, he not only had a right but had a duty too to at least make a cursory inventory of valuables before securing the vehicle and leaving it on the public roads, for the protection of the defendant’s property as well as to protect the police officer from being unduly criticized for missing valuables and things of that sort. So the motion is denied.”

In black letter law, the basic rule for warrantless automobile searches and seizures is easy to state: a car may be searched or seized without a warrant if there are both exigent circumstances and probable cause to believe that the car will yield contraband or evidence useful for prosecution of crime. The most fundamental rule in this area of constitutional law is that searches conducted are per se unreasonable subject only to a few specifically established and well-delineated exceptions. Delineated exceptions have been labeled as “hot pursuit”, “plain view doctrine”, “emergency situation”, “consent”, “exploratory search”, and “inventory search”. These labels have been affixed to various factual situations by judges in an effort to resolve the constitutional question of “reasonableness” as to a warrant-less search of an automobile. Factors determinative of reasonablenss of incidental searches have included the practicality of obtaining a warrant, facts known to the officer at the time of the arrest, the necessity for effecting a lawful arrest, the motive of the police officer, the prevention of escape or destruction of evidence, the security of the arresting officer, and a rational connection between the search and the crime for which the arrest was made. A search of an automobile without a warrant is not dependent upon being incident to the arrest, but upon the arresting officer having reasonable cause to believe that the “contents of the automobile offend against the law.”

That Officer Chick was in close proximity to Benton for a substantial time upon initially stopping him for a traffic violation is without contradiction. And it is equally clear that he did not suspect him of being under the influence of intoxicating liquors to the extent that such condition would impair his ability to drive an automobile, because the officer, after writing traffic tickets, bade Mr. Benton farewell and permitted him to drive his automobile down the road. Certainly, the officer would not have turned a driver suspected to be under the influence of intoxicating liquors loose on the general public. Officer Chick admitted that he was unhappy with Benton’s attitude, and justifiably so after Benton “burned his tires” immediately after being released upon his first apprehension. The totality of the circumstances here reflected smack strongly of a pretextual arrest and search pursuant thereto.

The trial judge’s observation that “the officer had the right to gather, by a cursory examination of the premises immediately occupied by the defendant”, cannot sanitize the instant search. Admittedly, Officer Chick asked Benton what his wishes were concerning the disposition of Benton’s automobile. Unlike the line of cases authorizing an inventory search, Officer Chick did not have the vehicle that he searched in his lawful possession. Unlike the car in Godbee, supra, which was illegally parked on a sidewalk and abandoned by its owner, there is no indication that Benton’s car was illegally parked or that lawful possession of same was acquired by the arresting officer. The fact that a vehicle is “unattended” is insufficient to authorize a warrantless search. An essential requirement to a valid inventory search is that the police must have taken lawful custody of the vehicle in the first instance. Another essential prerequisite to a valid inventory search is that the police must have acted in good faith in conducting the inventory and must not have used the inventory procedure as a subterfuge for a warrant-less search.

The only theory that supports the validity of the incident search is as stated in State v. Gustafson, viz:

“ . . . once a proper arrest is made and the defendant is in custody that a reasonable search may then proceed and if evidence be then discovered reflecting that a crime has been committed or is being committed, the evidence is proper and admissible. This has included contraband upon search of a vehicle on probable cause . . . .” (emphasis supplied)

This brings us to the critical question: Was there probable cause here to search for contraband? Officer Chick testified that he first stopped Benton at 10:15 p. m., and “I wrote the subject three tickets.” Benton was in Officer Chick’s presence for approximately twenty-five minutes during this encounter. After Benton departed and when “he stomped it down again and burned rubber”, Officer Chick gave chase and stopped him in approximately one mile. On this second occasion, Officer Chick stated: “I approached the subject’s vehicle [Benton’s] and told him that I was going to take him to the Leon County Jail for the second charge [careless driving and speeding].” As to the charge of driving while intoxicated, Officer Chick testified: “I wasn’t determined fully that the subject was completely driving while under the influence that much. His physical control was good. But I knew the subject had been drinking.” Officer Chick first charged Benton with DWI after the breath-alizer test was taken subsequent to their arrival at the jail.

This record does not support probable cause for the search of Benton’s automobile. The trial judge erred in not granting Benton’s motion to suppress.

The judgment appealed is reversed with directions that appellant Benton be discharged.

REVERSED.

MILLS and SMITH, JJ., concur.

      . Upon taking Benton to jail and a breathalizer test result of .10, Benton was charged with DWX

      . 89 Harv.L.Rev. 835 (1974) citing Coolidge v. Nexo Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

      . Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

      . United States v. Mapp, 476 F.2d 67 (2nd Cir. 1973) ; State v. Gustafson, 258 So.2d 1 (Fla.1972).

      . 25 U.Fla.L.Rev. 239 (Fall 1972), and State v. Gustafson, supra.

      . 25 U.Fla.L.Rev. 239 (Fall 1972).

      . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The court observed : “Only in exigent circumstances will the judgment of the police as to probable cause serve as sufficient authorization for a search.”

      . Graham v. State, 60 So.2d 186 (Fla.1952) ; Riddlehoover v. State, 198 So.2d 651 (Fla. App. 3rd 1967) and Chapman v. State, 158 So.2d 578 (Ma.App. 3rd 1963).

      . The cursory examination, i. e., “open view” doctrine as expressed in Harris v. United States, 390 TJ.S. 234, 88 S.Ct. 992, 19 L.Ed. 2d 1067 (1968), and State v. Ashby, 245 So.2d 225 (Fla.1971), is not applicable to the factual circumstances in the instant case. Also see State v. Cash, 275 So.2d 605 (Fla. App. 1st 1973), which discusses “plain view” and “inventory” jointly.

      . Godbee v. State, 224 So.2d 441 (2 Fla.App. 1969) ; State v. Ruggles, 245 So.2d 692 (Fla.App. 3rd 1971) ; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ; Annot., 48 A.L.R.3d 537, § 5 (1973), and 26 U.Miami L.Rev. 289, Sec. IV (1972).

      . Weed v. Wainwright, 325 So.2d (Fla.App. 4th 1975), and In re 1972 Porsche 2 Dr., ’74 Florida License Tag ID 91780, 307 So.2d 451 (Fla.App. 3rd 1975).

      . Annot., 48 A.L.R.3d 537, 544 (1973).

      . State v. Gustafson, 258 So.2d 1 (Fla.1972), aff’d, Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).


text:
    William D. HARDEN, Appellant, v. Lisa Michelle THOMAS, etc., Appellee.
    No. Z-258.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    A. Z. Adkins, Jr. and G. Stewart Mc-Henry, Gainesville, for appellant.
    Dale C. Ferguson, Ferguson & Ferguson, Lake City, for appellee.
   RAWLS, Acting Chief Judge.

William D. Harden, the natural father, appeals from a final judgment granting a petition of adoption of his daughter, Lisa Michelle, to her stepfather. Appellant Harden’s sole point on appeal is- whether or not imprisonment of a natural parent constitutes abandonment of his minor child, so as to authorize the trial court to excuse that parent’s consent within the meaning of Florida Statute 63.072.

Lisa Michelle Harden was born of the marriage of Janice M. Harden and William D. Harden on the 26th day of November, 1967. On the 15th day of August, 1973, William D. Harden was adjudged guilty of the crimes of rape and kidnapping not for ransom and sentenced to life imprisonment. Harden is now serving his sentence in the Florida State Prison in Raiford. The Harden marriage was terminated on September 4, 1973, and Mrs. Harden married John Wayne Thomas on the 2nd day of October, 1973. Lisa has resided with her natural mother and stepfather since the Thomas marriage. Lisa’s mother executed a consent for her adoption by her stepfather. Lisa’s natural father refused his consent to the adoption and has strenuously opposed same; hence this appeal.

Florida Statute 63.072 authorizes the court to excuse the consent of a natural parent upon one of the following grounds: 1) A parent who has deserted a child without affording means of identification or who has abandoned a child; 2) A parent whose parental rights have been terminated by order of a court of competent jurisdiction; and 3) A parent judicially declared incompetent for whom restoration of competency is medically improbable. Grounds 2) and 3) are not applicable to the facts here reviewed. Therefore, our review must be directed to the question of whether this record reflects competent, substantial evidence to support the theory that the natural father abandoned his child.

In her petition for dissolution of her marriage to Harden filed on August 21, 1973, the natural mother asked for custody and control of Lisa and further alleged: “Under restricted circumstances the Respondent should have the right to visit with the minor child but the Petitioner is afraid of Respondent and would request a structured visitation schedule.” The trial court in its Final Judgment of Dissolution of Marriage provided, inter alia:

“3. The care, custody and control of the minor child, to wit, LISA MICHELLE, age 5 years, is granted to the Wife subject to the Husband’s right of reasonable visitation. In view of the fact that the Husband is presently incarcerated in the Florida State Prison, the Court shall determine the time and length of visitation upon petition by either party upon the Husband’s release from the Florida State Prison.”

Thus, it is apparent that the trial judge in the dissolution proceeding determined that Harden’s crimes and ensuing prison term did not permanently sever the father-child relationship. Evidence adduced at the adoption hearing reflects continuous efforts on Harden’s part to maintain a father’s interest in his child and negates a voluntary abandonment of Lisa Michelle.

The right of adoption was unknown to the common law and exists only by virtue of statute. “The best interest of a child” or “welfare of a child” are tests used in custody cases which are not applied in the same manner in adoption proceedings. The appellate courts have consistently recognized that the welfare of the child is of importance in reviewing adoption proceedings; however, it was judicially recognized prior to the adoption of Florida Statute 63.072 (Ch. 73-159, Fla. Laws) that a natural parent not be deprived of the privileges and responsibilities of parenthood, unless he has abandoned his child or otherwise demonstrated that he is not a fit subject to continue to enjoy the privilege. A natural parent has a legal right in his child which should not be lightly regarded, and that right was protected in Florida Statute 63.072 by the specification of the limited circumstances in which a parent’s consent to adoption may be dispensed. Conditions which might justify relieving a parent temporarily of the custody of his child would not necessarily support absolute and permanent transfer of the child to a stranger or near kin.

We hold that the imprisonment of a natural parent under a lifetime sentence does not, as a matter of law, constitute abandonment of his natural child. As stated above, we are not here concerned with the question of care, custody and control of the minor child. Nor are we concerned with the question of visitation privileges. Jurisdiction of these questions is properly vested in the domestic relations court that entered the final judgment of dissolution of marriage.

The judgment appealed is reversed.

McCORD and SMITH, JJ„ concur.

      . Shortly after the custody order, Harden petitioned the domestic relations court seeking means by . which his child could visit him at Raiford. This petition was pending at the time the adoption proceeding was instituted and is now pending.

      . In re Palmer’s Adoption, 129 Fla. 630, 176 So. 537 (1937).

      . In re Adoption of Minor Child, 279 So.2d 55 (Fla.App. 4th 1973).

      . In re Adoption of Gossett, 277 So.2d 832 (Fla.App. 1st 1973) ; Wiggins v. Rolls, 100 So.2d 414 (Fla.1958).