author: OVERTON, Chief Justice. DREW, Justice (Ret.),

text:
    Richard GARDNER, Petitioner, v. D. F. S. CONSTRUCTION COMPANY and the Hartford Insurance Group, Respondents.
    No. 49189.
    Supreme Court of Florida.
    Feb. 9, 1978.
    Rehearing Denied May 22, 1978.
    Richard A. Sicking and Joseph C. Segor of Kaplan, Dorsey, Sicking & Hessen, Miami, for petitioner.
    K. P. Jones of Jones & Montgomery, Fort Lauderdale, for respondents.
   OVERTON, Chief Justice.

This cause is before the Court on petition for writ of certiorari to review an order of the Industrial Relations Commission which affirmed the order of the Judge of Industrial Claims, holding the claimant Gardner was not entitled to the “catastrophic loss rate” for a period of six months as provided in Section 440.15(2)(c), Florida Statutes. This statute has never previously been construed. We reverse, finding the claimant is entitled to the catastrophic loss rate under the provisions of the statute.

In this cause, the claimant received a severe electrical shock resulting in organic damage to the central nervous system. The claimant is totally blind, has lost the use of both arms and legs, and in the words of the Judge of Industrial Claims “is comatose, his doctors hold out no surgical hope for cure, nor is any substantial improvement in his condition contemplated, certainly not within six months from the date of injury.”

The parties stipulated to the medical condition and the average weekly wage at the time of the industrial accident. The sole issue was whether the provisions of Section 440.15(2)(c), Florida Statutes, apply so as to raise the claimant’s compensation rate. That statute provides:

Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member, because of organic damage to the nervous system, or has lost the sight of both eyes as provided in paragraph (3)(p), shall be paid temporary total disability of 80 percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to subsections 440.-49(1), (2), or (3), if provided. In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond 6 months from the date of the injury. The compensation provided by this paragraph is not subject to the limits provided in subsection 440.-12(2), but instead is subject to a maximum weekly compensation rate of $400. If, at the conclusion of this period of increased temporary total disability compensation, the employee is still temporarily totally disabled, the employee shall continue to receive temporary total disability compensation as set forth in paragraphs (a) and (b). The period of time the employee has received this increased compensation will be counted as part of, and not in addition to, the maximum periods of time for which the employee is entitled to compensation under paragraph (a) but not paragraph (b).

The Judge of Industrial Claims held that for the claimant to be entitled to the benefits of Section 440.15(2)(c), Florida Statutes, not only must the loss of the extremities or sight have occurred but the “injured party must be under a training program in the use of artificial members or appliances, or under a rehabilitative program pursuant to F.S. 440.49(1), (2), or (3),” concluding that the provisions of Section 440.15(2)(c), Florida Statutes, did not apply. We disagree.

In our opinion, the catastrophic loss provision was intended to apply to all who had “sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member, because of organic damage to the nervous system, or has lost the sight of both eyes.” This increased compensation rate is restricted to a maximum period of six months or until the employee has completed rehabilitative training, whichever occurs first.

The rehabilitative program provision in the statute requires the claimant, if medically feasible, to make a good faith effort to complete training in the use of artificial members or training under the rehabilitative program pursuant to Section 440.49(1), (2), (3), Florida Statutes. We reject the construction that this provision conditions absolutely the award of the increased compensation rate on the entry into the training program irrespective of its medical feasibility. To so construe this statute would produce an unreasonable result. It would allow the claimant with a rehabilitative injury to receive higher compensation than those with a more serious nonrehabilitative injury.

As an illustration, there could be instances where an individual would suffer loss of extremities or sight and not be able to enter into the training program because of the necessary healing process for other injuries that he or she may have received.

We construe the training provisions of the statute to be a limitation only to the extent that the claimant must exert a good faith effort to complete his rehabilitative training. We recognize, as did counsel for each of the parties and the Judge of Industrial Claims, that the statute was inartfully drawn, but we, if possible, must construe it so it makes sense.

The order of the Industrial Relations Commission affirming the Judge of Industrial Claims’ denial of benefits to the claimant is quashed, and this cause is remanded for the entry of an order consistent herewith.

It is so ordered.

BOYD, ENGLAND and HATCHETT, JJ., concur.

DREW (Ret.), J., dissents with an opinion, with which SUNDBERG and KARL, JJ., concur.

DREW, Justice (Ret.),

dissenting.

I respectfully dissent, and adopt as my views those set forth in the compensation order of the Judge of Industrial Claims as approved by the Full Commission, viz:

“In the instant cause, the claimant has massive brain damage, is comatose, his doctors hold out no surgical hope for cure, nor is any substantial improvement in his condition contemplated, certainly not within six months from the date of injury. Clearly, within six months of his injury this particular claimant will not be a candidate for any retraining program or training in prosthetic devices, wheel chairs, or etc. In the event his condition changes within that period of time, employer/carrier’s exhibit No. 1 contemplates acceptance of retraining on a voluntary basis.
“There is no question that this employee has sustained ‘. . . the loss of an arm, leg, hand, foot, or total loss of use of such member because of organic damage to the central nervous system, . . . .’ However, 440.15(2)(c) goes on to state, ‘. . . until he has completed his training and the use of artificial members or appliances and completed his training or education under a rehabilitative program pursuant to F.S. 440.41(1), (2), or (3).’
“I have a great deal of empathy for this young claimant with such severe injuries, and counsel for both parties have indicated the same feeling. I strongly question the method of drafting this particular piece of legislation. However, I believe my duty requires me to assume, and I feel, that the legislature would not knowlingly [sic] draft and pass as law a piece of legislation not grounded in common sense. To assume that the legislature did not contemplate that the injured party must be under a training program in the use of artificial members or appliances, or under a rehabilitative program pursuant to F.S. 440.49(1), (2), or (3), would be to effectually nullify that portion of the statutory language of F.S. 440.15(2)(c). I therefore must regretfully determine that in this particular case, the provisions of F.S. 440.15(2)(c) do not apply to this claim, and the claimant’s compensation rate remains at $80.00.”

I would affirm the order of the Full Commission.

SUNDBERG and KARL, JJ., concur.

      . E. g., Moore v. State, 343 So.2d 601, 604 (Fla. 1977). See generally 30 Fla.Jur. Statutes §§ 77 and 122 (1974).


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    BELK-JAMES, INC., a Florida Corporation, Appellant, v. Charles A. NUZUM, Director, Division of Beverage, Department of Business Regulation, State of Florida, Beer Industry of Florida, Inc., and Adoph Coors Company, Appellees.
    No. 50881.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied May 22, 1978.

      Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Charles T. Tunnicliff, Charles T. Collett and Dennis E. LaRosa, Staff Attys., Tallahassee, for Charles A. Nuzum.
    Lee L. Willis, II and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Beer Industry of Florida, Inc.
    Earle D. Bellamy, II of Bradley, Campbell & Carney, Golden, Colo., for Adolph Coors Co., intervenor-appellee.
   ENGLAND, Justice.

Section 563.06(1), Florida Statutes (1975), provides that all taxable malt beverages possessed for sale or resale in Florida (with exceptions not relevant here)

“shall have printed or lithographed on the crown or can lid thereof, the word ‘Florida’ . . . . Manufacturers of the malt beverages shall be required to submit samples of crowns or lids to the division [of beverage of the Department of Business Regulation] for approval as to the ‘Florida’ designation.”

Belk-James, Inc., a distributor who contracted to purchase Coors beer in South Carolina and sell it in Florida, challenges the constitutionality of Section 563.06(1), principally on the ground that it violates the due process clauses of the United States and Florida Constitutions in that the statutory requirements of imprinting “Florida” on all container tops, and of permitting manufacturers alone to submit applications for approval, are unreasonable regulations not related to any legitimate state interest. This challenge to the statute is opposed by the agency charged with beverage administration (the Division of Beverage of the Department of Business Regulation), by Adolph Coors Company, which manufacturers Coors beer, and by the Beer Industry of Florida, Inc.

All the parties agree that the proper standard by which we must evaluate the Legislature’s exercise of the police power in the area of economic regulation is whether the means utilized bear a rational or reasonable relationship to a legitimáte state objective. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Castlewood International Corp. v. Wynne, 294 So.2d 321 (Fla.1974). The dispute between Belk-James and the Division centers on the putative relationship between the statute’s regulatory scheme and two asserted justifications for its validity — the collection of revenue for the state in the form of malt liquor taxes, and the goal of ensuring that only wholesome beer, as opposed to stale or unwholesome beer, is brought into the state for sale or resale. Each of the statutory justifications is discussed separately.

1. Justification as a regulation to promote wholesome products.

The Division argues that the perishable nature of malt beverages demands that beer be shipped directly to Florida in order to ensure freshness, and that both of the requirements in Section 563.06(1) reasonably advance this objective. Belk-James disputes any logical connection between the word “Florida” on the container top and the wholesomeness of the product inside, inasmuch as the stamp is imprinted by the manufacturer without limitations against the imprinting of several states’ names on the crown or lid. The Division meets this contention by suggesting that the labelling requirement is all that is needed to induce commercial self-policing, since manufacturers would find it commercially infeasible to do what Belk-James suggests they might.

We have to agree with the Division that the Legislature may regulate by commercial self-compulsion, and that in this case it might reasonably have relied on the motivations of beer manufacturers to preserve the freshness of their own product. By directing that only manufacturers may imprint containers, the Legislature might reasonably have provided the regulatory impetus to achieve quality control, based on a subsidiary assumption that others in the beer distribution chain are not as keenly motivated as the manufacturer to ensure the freshness of any particular product.

2. Justification as a revenue measure.

The collection of excise taxes on malt beverages under Section 563.05, Florida Statutes (1975), is a substantial source of state revenue. In its fiscal year 1975-76, the State of Florida collected more than $76,000,000 in beer excise taxes. It is appropriate that the Legislature provide reliable methods of tax enforcement. Cf. Dominion Land & Title Corp. v. Department of Revenue, 320 So.2d 815 (Fla.1975). Tax collection for malt beverages is achieved by so-called “depletion” control, whereby the tax is computed by reference to the number of taxable malt liquor containers withdrawn from the warehouses of distributors for delivery to retailers. The requisite tax is paid by distributors to the Division on a monthly basis, accompanied by suitable reports, and is periodically verified by audits and inspections.

Belk-James basically argues that since the state neither places nor supervises the placement of “Florida” designations on beer containers, it cannot know which malt beverage containers have been taxed. The Division argues that Section 563.06(1) is one facet of an integrated statutory scheme for regulating and taxing beer sales, and that the Legislature might reasonably have concluded that malt beverage containers marked by the manufacturer with an approved “Florida” designation are more likely to follow closely monitored channels of distribution, from which the tax is collected. To evaluate these competing claims we must examine the total regulatory scheme to see if it reasonably assures distribution only within regulated channels.

The Florida Beverage Law begins by establishing qualifications and procedures for the licensure of all persons in the chain of distribution. It then makes it unlawful to sell malt products without strict adherence to the terms of a license, providing significant penalties for non-compliance. Beer manufacturers who ship their product into Florida for sale or resale, aside from being required to affix a pre-approved “Florida” designation, are required to submit detailed reports on the amount of beer shipped into the state. Moreover, those who may transport beer into Florida for sale or resale, and those who may receive beer shipments from outside the state, are rigidly controlled and also subject to strict reporting requirements.

The Division argues that it can ascertain and control taxability on the basis of documents received from licensees, and that the regulatory scheme provides a stringent set of controls by which it can enforce compliance- with the beer excise tax laws. The Division also notes that it performs field audits on distributors, bonded warehouses, and retailers, and in this respect monitors the presence or absence of “Florida” designations on beer container tops. These audits thus provide a viable means for the detection of beer which enters the Florida market through unregulated, illegal channels.

We are satisfied that the requirements of Section 563.06(1) bear a sufficient relationship to revenue collection to withstand the due process attack. The arguments advanced by Belk-James, which essentially question whether the best means of regulation has been chosen, can be seen as directed more to the wisdom of the legislation than to its asserted rationality. This inquiry, of course, is inappropriate for our judicial function. Holley v. Adams, 238 So.2d 401 (Fla.1970).

Since we begin with a presumption that acts of the Legislature are constitutional, and that all reasonable doubts are to be resolved in favor of their validity, we have no difficulty concluding that Section 563.06(1), Florida Statutes (1975), meets the due process requirements of the United States and Florida Constitutions.

As a final point, Belk-James has suggested that if this statute is constitutional, it is entitled to a declaration that it has “substantially” complied with Section 563.06(1) because its exclusive distribution contract for Florida effectively makes Belk-James the “manufacturer” of Coors beer for state regulatory purposes. The trial judge, we think, quite properly rejected this “construction” of the statute.

The order of the Leon County Circuit Court, dismissing Belk-James’ complaint, is affirmed.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.

ADKINS, J., dissents.

      . U.S.Const. amend. XIV; Art. I, § 9, Fla.Const.

      . This matter comes to us by direct appeal from an order of the Leon County Circuit Court upholding the constitutionality of Section 563.-06. We have jurisdiction for the appeal. Art. V, § 3(b)(1), Fla.Const.

      . Related to the argument that Section 563.-06(1) achieves these two objectives are the general assertions that the state may legitimately regulate the beer industry, and that these provisions are an integral part of the regulatory scheme necessary to carry out the state’s program. These assertions are not seriously contested by Belk-James and need not be addressed to resolve the controversy. Similarly, we need not dwell on Belk-James’ other challenges. It suggests here that equal protection of the law is denied by the regulation only of beer containers; however, that position is not supported by allegations or proof, which it had the burden to develop, showing that a distinction between packaging beer and other alcoholic beverages lacks a rational foundation. See Steigerwalt v. City of St. Petersburg, 316 So.2d 554 (Fla.1975). It also suggests that Section 563.06(1) unduly interferes with interstate commerce, a position wholly inconsistent with the Twenty-first Amendment to the United States Constitution. See California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

      . Belk-James acknowledges that these are permissible state objectives, but simply argues that Section 563.06(1) bears no reasonable relationship to them.

      . The Division also argues that the “Florida” identification at the point of manufacturer reduces the likelihood that excess or out-of-season inventories of old beer will be “dumped” into the more constant beer demand states, such as Florida, by out-of-state distributors. This, too, is a proposition which might reasonably have persuaded legislators to enact the imprinting requirements.

      . §§ 561.14-.19, Fla.Stat. (1975).

      . See, for example, §§ 561.29 (license revocation), 562.32 (criminal penalties), 562.28 (seizure), and 562.16 (personal tax liability for violations), Fla.Stat. (1975).

      . § 561.55, Fla.Stat. (1975).

      . §§ 562.07 and 561.54, Fla.Stat. (1975).

      . §§ 562.20 and 561.55, Fla.Stat. (1975).

      . Section 562.41, Florida Statutes (1975), authorizes searches by Division employees, and other law enforcement officers, for the purpose of defecting violations of the Beverage Law.

      . Golden v. McCarty, 337 So.2d 388 (Fla.1976).

      . Corn v. State, 332 So.2d 4 (Fla.1976).


author: ENGLAND, Justice. KARL, Justice,

text:
    Morace C. DUNCAN, Petitioner, v. John D. FLYNN, M.D., et al., Respondents.
    No. 51299.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied May 24, 1978.
    Robert Orseck of Podhurst, Orseck & Parks, Susan Goldman, Miami, and Wagner, Cunningham, Vaughan & Genders, Tampa, for petitioner.
    John I. Van Voris and Charles P. Schropp of Schackleford, Farrior, Stallings & Evans and T. Paine Kelly, Jr. and Claude H. Tison, Jr. of MacFarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
   ENGLAND, Justice.

Morace Duncan has brought to us for review a decision of the Second District Court of Appeal holding (1) that an unborn fetus is not a “person” within the meaning of Florida’s former Wrongful Death Act, and (2) that a child is not “born alive”, for purposes of the wrongful death statute, until he or she acquires an existence separate and independent from the mother. The district court’s ruling on the first point is entirely consistent with our recent decision in Stern v. Miller, 348 So.2d 303 (Fla.1977), which resolved the question by holding that an unborn viable fetus is not a “person” within the meaning of Florida’s Wrongful Death Act. We adhere to our holding in Stern, and regard that decision as dispositive of the first issue.

As to the second point, Judge Scheb’s opinion below has carefully and thoroughly evaluated the case law and policy considerations applicable to the determination of when a child is considered to be “born alive” for purposes of the wrongful death statute. We agree with his decision, adding only that his interpretation of this statute is generally consistent with the legislature’s definition of “live birth” for record-keeping purposes under the vital statistics law.

We adopt as our own the opinion of the Second District Court of Appeal as to when life commences for purposes of the wrongful death statute, and accordingly discharge the writ of certiorari.

It is so ordered.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

KARL, J., dissents with an opinion, with which ADKINS and HATCHETT, JJ., concur.

KARL, Justice,

dissenting.

I must respectfully dissent from the majority opinion which affirms in totality the decision of the District Court of Appeal, Second District. Although I do concur, as I did in Stern v. Miller, 348 So.2d 303 (Fla.1977), with the determination that an unborn, viable fetus is not a “person” under Florida’s former wrongful death act, I cannot agree with the position of the District Court that as a matter of law, in order to constitute “live birth” so as to give rise to a cause of action for wrongful death, a child must acquire a separate and independent existence of its mother which may only be accomplished by expulsion of the child’s body from its mother with evidence that the cord has been cut and the infant has an independent circulation of blood.

The facts are succinctly stated in the decision of the District Court:

“During pregnancy, Shirley J. Duncan was cared for by the defendant, Dr. Flynn, who practiced obstetrics and gynecology. She was admitted to the defendant hospital on March 20, 1972, for purpose of delivery of her fourth child. Dr. Flynn,- who cared for Mrs. Duncan during her previous deliveries, induced labor. By 9:00 p.m. she was completely dilated. She was taken into the delivery room around 10:00 p.m. Minutes later, her baby’s head emerged; however, the baby’s shoulders were too wide to allow further passage. Two other physicians were summoned to assist, but after unsuccessful attempts at various procedures for some twenty minutes, they noted the fetal heartbeat tones had disappeared. Concluding the child could not be born alive, the physicians then directed their efforts toward Mrs. Duncan’s condition. After receiving her husband’s permission, they removed the baby’s head. Sometime after 11:00 p.m., they proceeded to remove the remainder of the child’s body by a Caesarean section. The baby’s head and torso weighed 14 pounds, 8 ounces. The death certificate carried ‘cardio vascular failure due to or as a consequence of strangulation’ as the stated cause of death.”

Petitioner sued to recover for the wrongful death of his baby son who died during the process of delivery and alleged that due to respondents’ negligent failure to recognize in advance that a Caesarean section would be required, the baby died during the course of childbirth. The trial court entered summary judgments for all the respondents on the wrongful death claim and explained:

“ . . . [Tjhere can be no claim for the death of the unborn fetus, John Norris Duncan, and the court having determined that there are no genuine issues as to any material fact as to that claim which is a part of plaintiff’s third amended complaint, that defendants are entitled to a judgment as a matter of law.”

The District Court of Appeal, Second District, affirmed the judgment of the trial court.

I cannot agree with the majority that such a strict rule of law as to what is meant by “born alive” is justified but, rather, find that factual questions are involved which should be resolved by the jury.

Bennett v. State, 377 P.2d 634 (Wyo.1963), involved the prosecution and conviction of a mother for manslaughter for the killing of her newborn baby. The elements essential to establish the corpus delicti of this crime were that the infant was born alive and that its death was caused by the criminal agency of the accused. During the course of the trial proceedings, the defendant requested the trial court to give an instruction to the jury to the effect that “it is the law that an independent circulation and existence of the baby must be proved, and the fact of the baby having breathed is not conclusive proof that it was born alive.” The trial court refused to give such instruction, and the defendant appealed contending this constituted error. On appeal, the Supreme Court of Wyoming determined that this refusal to give the requested instruction was proper since there is no acceptable standard for determining when an independent circulation exists. Whether the baby was born alive or not was a question of fact to be resolved by the jury, and the opinion of the autopsy physician as to the fact that the child was born alive was evidence which could be considered by the jury, concluded the Supreme Court of Wyoming. Cf. People v. Chavez, 77 Cal.App.2d 621, 176 P.2d 92 (1947).

In an annotation entitled “Proof of Live Birth in Prosecution for Killing Newborn Child,” 65 A.L.R.3rd 413, it is stated that as is the case with most other factual questions, whether a child is born alive is for the jury to determine.

No absolute rule of law should be adopted which fixes the occurrence of live birth upon severance of the umbilical cord. Just as, in infanticide cases, the question as to whether the infant was born alive is a question of fact to be decided by the jury, the factual determination of live birth in wrongful death cases should likewise be resolved by the jury.

ADKINS and HATCHETT, JJ., concur.

      . Duncan v. Flynn, 342 So.2d 123 (Fla.2d DCA 1977).

      . §§ 768.01-.03, Fla.Stat. (1971).

      . Although in Stem the issue was presented in the context of our current Wrongful Death Act, §§ 768.16-.27, Fla.Stat. (1975), we expressly recognized that “[s]ince the legislature did not materially change the language of the prior section, it must be presumed that the legislature intended to carry forward into the new section the terms ‘person’ and ‘minor child’ as previously construed.” 348 So.2d at 307. Thus, it is clear that our decision in Stem interpreting the scope of the term “person” as used in the new Wrongful Death Act applies with equal force to the identical term as it appeared in the old Wrongful Death Act.

      . § 382.071(1), Fla.Stat. (1975), defining “fetal death”, which is the converse of “live birth”.


text:
    LANDMARK BANK OF WEST BROWARD, N.A., Petitioner, v. Dolores GIROUX, Respondent.
    No. 51801.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied May 23, 1978.

      William E. Scheu and Edward L. Kelly of Ulmer, Murchison, Ashby & Ball, Jacksonville, and James J. Blosser of English, McCaughan & O’Bryan, Fort Lauderdale, for petitioner.
    William A. MacGuire, Jacksonville, for respondent.
   ENGLAND, Justice.

The First District Court of Appeal asks us by certified question whether a national banking association waives its venue privilege under 12 U.S.C. § 94 (1970), by repossessing the automobile of a borrower in default on a public street in a county where the bank maintains no business location. We answer this certified question in the negative.

Section 94 of Title 12, United States Code, provides in relevant part:

“Actions and proceedings against any association under this chapter may be had . in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The venue provisions of Section 94 are mandatory, but any national bank may waive its federal venue privilege. The issue is whether Landmark Bank did so in this case.

In August 1973, while residents of Bro-ward County, Florida, respondent and her husband obtained an automobile loan from Landmark Bank, a national banking association whose principal and only place of business in Florida is Broward County, pledging the automobile as security for the loan. Taking the automobile with her, respondent subsequently moved to Duval County, Florida. After several defaults by respondent under the note and security agreement, petitioner repossessed the automobile on a public street in Duval County. Prior to repossession, late payments had been accepted by petitioner, but at the time of repossession, the loan was admittedly in default. Respondent filed suit in Duval County for wrongful deprivation of her personal property and great mental suffering and embarrassment. Landmark Bank’s motion to transfer the case to Broward County, based on 12 U.S.C. § 94, was denied by the trial court.

On appeal the district court adhered to its prior decision in Barnett Bank of Winter Park v. Alford, 332 So.2d 81 (Fla. 1st DCA), cert. denied, 339 So.2d 1167 (Fla.1976), a case in which the court had followed Vann v. First National Bank in Little Rock, 324 So.2d 94 (Fla. 3d DCA 1975). The venue waiver question was then certified to us.

A waiver of the federal venue privilege is shown by conduct demonstrating voluntary and intentional relinquishment or abandonment on the part of the national bank. The Fifth Circuit Court of Appeals has held that the commission of a tort is insufficient to constitute a waiver. Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973). Repossession of transitory loan collateral has specifically been held not to constitute a venue waiver in Brown v. Bank of America National Trust & Savings Association, 281 F.Supp. 82 (N.D.Ill.1968), and Nevada National Bank v. Superior Court, 45 Cal.App.3d 966, 119 Cal.Rptr. 778 (1975).

We agree with the decided weight of authority that the mere repossession of loan collateral does not constitute an affirmative act of waiver. For this purpose there is a world of difference between a bank’s voluntary entry into a foreign domain for the transaction of business, and its pursuit of transitory collateral at the time of default to a locale selected by the defaulting borrower.

The certified question is answered in the negative, the decision of the First District Court of Appeal is quashed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

KARL, J., dissents with an opinion, with which ADKINS and BOYD, JJ., concur.

KARL, Justice,

dissenting.

I would agree with the District Court of Appeal’s affirmative response to this question. Although recognizing that the District Court of Appeal, Third District, in Exchange National Bank of Chicago v. Rotocast Plastic Properties, Inc., 341 So.2d 787 (Fla. 3rd DCA 1977), had effectually receded from its earlier decision in Vann v. First National Bank, supra, the District Court, in the case sub judice, adhered to its prior decision in Barnett Bank of Winter Park v. Alford, supra, and reaffirmed the logic contained in the Vann decision.

In Vann v. First National Bank, supra, the District Court opined:

“The law is well established that the venue privilege may be waived. First National Bank of Charlotte, North Carolina v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282; Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961. The question of waiver of this privilege has been determined on a case by case basis, Am.Jur., Venue (1st Ed) § 46. The primary purpose of 12 U.S.C., § 94 was to prevent inconvenience and interruption in the conduct of the bank’s business which might result from removal of records to a foreign district for purposes of defending a lawsuit. Northside Iron & Metal Company, Inc. v. Dobson & Johnson, Inc., 5th Cir. 1973, 480 F.2d 798, 800. Suits against banks were limited to the place where the bank was established because this is where the bank was ‘found’ and its records were there.
“When a bank ‘locates’ itself in another jurisdiction for the limited transaction of business and commits tortious acts, by and through its agent, such as it alleged in this case, we hold that it has waived its privilege to the extent of being sued on the local transaction or activity involving the alleged tortious acts. Compare Buffum v. Chase National Bank of City of New York, 7th Cir. 1951, 192 F.2d 58.”

Accordingly, I would answer the posited question in the affirmative, approve the decision of the District Court of Appeal, sub judice, and discharge the writ.

ADKINS and BOYD, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.

      . The decision of the district court is reported at 345 So.2d 847.

      . See Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963).

        . National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976).

      . See also Exchange Nat’l Bank v. Rotocast Plastics Prods., Inc., 341 So.2d 787 (Fla. 3d DCA 1977), in which the Third District Court of Appeal essentially receded from its Vann decision.


author: HATCHETT, Justice.

text:
    David Joseph HINES, Petitioner, v. STATE of Florida, Respondent.
    No. 51907.
    Supreme Court of Florida.
    April 20, 1978.

      Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bradenton, Florida, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for respondent.
   HATCHETT, Justice.

The issue we must resolve is whether an affidavit charging a violation of probation is sufficient upon which to base a permanent revocation of probation if it merely alleges that the probationer has been arrested for a felony. This case is before us for review upon a conflict between the decision below, reported at 346 So.2d 1235 (Fla. 2nd DCA 1977), and the decisions to the contrary on the same issue in Frederick v. State, 339 So.2d 251 (Fla. 4th DCA 1976); Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974); and Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973). We determine that such an allegation is a sufficient basis for the revocation of probation if the probationer is given adequate written notice of the felony upon which the revocation is to be based, consistent with the requirements of minimal due process.

In the present case, petitioner was charged with violating his probation in that he “was arrested by Sarasota Deputy B. Blosser for burglary,” on 3/13/76. The probationer had been arrested near the scene of the crime shortly after it had occurred. Subsequent to his arrest, the probationer confessed to his involvement in the burglary. The trial court revoked his probation based on the confession and on the burglary tools seized from the petitioner’s automobile.

Petitioner concedes that the evidence introduced at the probation revocation hearing was sufficient to justify the revocation of his probation. He contends, however, that an affidavit merely alleging that a probationer has been arrested for a certain felony is a sufficient basis only for the temporary revocation of probation; a permanent revocation must be based upon allegations that the probationer actually committed the crime charged, and providing sufficient factual allegations as to the essential elements of that crime. Petitioner further argues that in spite of the adequate proof introduced at the revocation hearing, it has long been held that a valid guilty verdict will not cure a failure by the state to allege a criminal offense, nor cure the omission of any essential allegations in the charging document.

The state contends that an allegation in the affidavit for violation of probation is sufficient if it states that the probationer has been arrested for a felony. Section 949.10, Florida Statutes (1975), makes the felony arrest of a felony probationer prima facie evidence of the violation of his probation. If such an allegation is sufficient to justify incarceration, it would clearly appear adequate as a charging document upon which to base a revocation hearing. The state contends that the affidavit in the present case was clearly sufficient to temporarily revoke the probation and the probation officer should not be required to file an additional affidavit merely to bring the probationer to the revocation hearing. The state further contends that the probationer in this case never sought any further information concerning the facts of the crime with which he was charged, nor did he raise in the trial court any question concerning the adequacy of his notice of the crime with which he had been charged.

Probation revocation procedures must comply with minimal requirements of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Although a probationer may be temporarily incarcerated for a ten day period based upon a felony arrest, it is generally agreed to be improper to permanently revoke probation based solely upon proof that a probationer has been arrested. Fundamental fairness requires that a defendant be placed on notice as to what he must do or refrain from doing while on probation. A trial court has the authority to impose any valid condition of probation which would serve a useful rehabilitative purpose. The Florida Statutes do not authorize, nor would our constitution permit, a permanent revocation of probation based solely upon proof of an arrest during the probationary period. If a person has willfully failed to comply with his conditions of probation, then his probation can be permanently revoked after he has been given adequate notice of the charges and an opportunity to present a defense to them. Therefore, we hold that an affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence. However, an allegation concerning the commission of a crime need not be set forth with the specificity required in criminal indictments and informations. The primary goal is notice comporting with minimal due process rights. If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.

In the present case, the written factual allegations in the affidavit for violation of probation were insufficient to provide notice to the probationer with what criminal acts he was charged. In this case, however, we find this to be harmless error since the record shows that the probationer clearly had actual notice of the charges, that he was arrested near the scene of the crime shortly after its occurrence, and that he made a confession to his involvement. There was no violation of the probationer’s due process rights. Petitioner’s probation was revoked upon adequate proof of burglary for which he was arrested by Deputy Blosser on 3/13/76. The circumstances here are not comparable to those cases in which a person’s probation has been revoked based upon proof of charges other than those with which he was notified in the affidavit of violation.

Accordingly, the district court’s decision below is approved,

Is so ordered,

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

      . The district court’s opinion in this case does not discuss the issue with which we are concerned. We tentatively accepted jurisdiction pursuant to Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). The record shows that the defense filed a motion to dismiss the affidavit for violation of probation on the ground it was legally insufficient. The issue was raised on appeal, and the district court apparently resolved this issue on the basis of its previous decision in McLain v. State, 343 So.2d 939 (Fla. 2d DCA 1977), cert. den. 354 So.2d 982 (Fla.1977).

      . Section 949.10, Fla.Stat. (1975), provides:
      Subsequent felony arrest of felony parolee or probationer prima facie evidence of violation. —The subsequent arrest on a felony charge, in this state, of any person who has been placed on parole or probation following a finding of guilt of any felony, or a plea of guilty or nolo contendere to any felony, shall be prima facie evidence of the violation of the terms and conditions of such parole or probation. Upon such arrest, the parole agreement or probation order shall immediately be temporarily revoked and such person shall remain in custody until a hearing by the parole and probation commission or the court.

      . The Court in Gagnon, supra, cited the essential elements of due process necessary in a final revocation hearing: (1) written notice of claimed violation; (2) disclosure of evidence against the probationer; (3) an opportunity to be heard and present witnesses and evidence; (4) the right to confront witnesses in most instances; (5) a neutral and detached hearing body; (6) a written statement by the fact finder as to the evidence relied on and the reasons for revocation.

      . The constitutionality of this statutory procedure was upheld in Bernhardt v. State, 288 So.2d 490 (Fla.1974), see also Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974).

      . The U.S. Supreme Court in Gagnon v. Scarpelli, supra, held that a final probation revocation proceeding must address two separate issues: (1) whether the probationer in fact committed the violation charged; and (2) whether the commission of the act warranted revocation.

      . For example, in Sukert v. State, 325 So.2d 439 (Fla. 3d DCA 1976), the probationer was denied due process when the state did not disclose to him certain “privileged” documents which were later used against him at the revocation hearing.

      . See, State v. Spratling, 336 So.2d 361 (Fla.1976).


author: PER CURIAM.

text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, Harold Rosen, as Mayor, Leonard Haber, as Vice-Mayor, Murray Meyerson, Philip Sahl, Hal Spaet, Leonard Weinstein, and Simon Wikler, as Councilmen, and Dodd Southern, as City Manager, all of petitioner, Appellants, v. Harry H. SARGEANT, Irene Yarwood, and Edgar J. Petrini and Carmella Petrini, his wife, Appellees.
    Nos. 77-551, 77-552.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied May 23, 1978.
    Joseph A. Wanick, City Atty. and Andrew H. Moriber, Asst. City Atty., for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and George B. Foss, Jr., W. Frank Esslinger, Jr., Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Owenby Auto Parts, Inc. v. Jennings, 259 So.2d 537 (Fla. 3d DCA 1972); Roberts v. Askew, 260 So.2d 492 (Fla.1972); State Department of Transportation v. Shaw, 303 So.2d 75 (Fla. 1st DCA 1974); United States v. Johnson County, Iowa, 6 Wall. 166, 73 U.S. 166, 18 L.Ed. 768 (1868).


author: DAUKSCH, Judge.

text:
    Janie Bell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2324.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahasse, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was charged with murder in the First Degree and convicted of aggravated assault. She was sentenced to the penitentiary for an indeterminate period from six months to fifteen years. Although she has not appealed her sentence we must reverse it because it is clearly error. The maximum sentence under Section 784.021, Florida Statutes (1975) Aggravated Assault, is five years because it is a felony in the third degree. Section 775.082 3(d) provides a maximum of five years for felonies of the third degree. Lest the ap-pellee come beckoning that the “enhanced penalty statute”, Section 775.087(l)(c) applies since a weapon was used, we say it does not apply because aggravated assault is an assault with a weapon and that statute specifically excludes “a felony in which the use of a weapon or firearm is an essential element . . .” The crime of aggravated assault is already an enhanced penalty statute. It makes the penalty greater than an assault, Section 784.011, Florida Statutes (1975), if a weapon is used or a felony is intended. We do not reach the question as to whether an enhancement of the penalty is available if the accused is convicted of an aggravated assault by assaulting with the intent to commit a felony and a weapon is used. This case is not the proper case to do so because the verdict of the jury was “guilty of aggravated assault with a weapon” and the judgment on the verdict reads the same. See Butler v. State, 343 So.2d 93 (Fla. 3 DCA 1977).

The judgment is affirmed and the sentence is reversed. The cause is remanded for proper sentencing in accordance with this opinion, for a period no longer than five years.

REVERSED and REMANDED.

ANSTEAD, J., and CRAWFORD, GRADY L., Associate Judge, concur.


author:
PER CURIAM.
      DOWNEY, Judge,

text:
    Rommie L. LOUDD, Appellant, v. STATE of Florida, Appellee.
    No. 76-53.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 25, 1978.
    Ellis Rubin Law Offices, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

ANSTEAD, J., and BURNSTEIN, M., Associate Judge, concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

The most serious point raised on this appeal questions the propriety of allowing a person who was initially a co-defendant to testify that he pleaded guilty and has been sentenced to prison.

Appellant Loudd, Alfonso Cain and Toby Williams were charged in a single information with delivery of cocaine. Cain and Williams pleaded guilty and were sentenced prior to Loudd’s trial. Cain became a witness for the State during Loudd’s trial and testified at length about Loudd’s complicity in the drug transaction which was the subject matter of this prosecution. The prosecutor then questioned Cain concerning his guilty plea and ensuing sentence. Loudd moved for a mistrial which was denied, as was his request for a cautionary instruction.

Loudd contends on appeal that the admission of Cain’s testimony regarding his guilty plea and sentence prejudiced his right to a fair trial and is reversible error. Loudd relies upon Thomas v. State, 202 So.2d 883 (Fla. 3rd DCA 1967) and several other Florida cases which will be discussed hereafter. Without directly treating the Florida cases, the State argues that “the one common thread that runs through the doctrine appellant relies upon is the denial of the right of confrontation . . .”. My study of the authorities speaking to this question leads me to a different conclusion. While hearsay may be a proper objection in many of the cases in which this question arises, the harmful aspect of allowing the jury to know that a co-defendant or an accomplice has pleaded guilty is that the evidence is irrelevant to the guilt or innocence of the defendant on trial and could well be used by the jury to infer the guilt of the defendant in question. The general rule is that when two persons have been charged with the same offense but are tried separately, it is improper to disclose during trial that another defendant has been convicted or has pleaded guilty. This is because competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense. Each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence. Thomas, supra; Moore v. State, 186 So.2d 56 (Fla. 3rd DCA 1966); 22A C.J.S. Criminal Law § 784.

In the first Florida case treating this question, Grisette v. State, 152 So.2d 498 (Fla. 1st DCA 1963), the court held it was not improper for the court to advise the jury that several of the defendants had pleaded no contest and that the defendant had not been prejudiced thereby. In Vitiello v. State, 167 So.2d 629 (Fla. 3rd DCA 1964), the court likewise held no prejudice resulted from the court’s informing the jury that a co-defendant had changed his plea from not guilty to guilty. However, it was also found that the point had not been preserved. Furthermore, in Bocanegra v. State, 303 So.2d 429 (Fla. 2nd DCA 1974), the court held that it was not prejudicial error to have allowed a co-defendant who testified to state, over objection, that he pleaded guilty, because of the cautionary instructions given by the court. Likewise in Lowery v. State, 177 So.2d 855 (Fla. 1st DCA 1965), the court held that the trial court correctly denied defendant’s motion for a mistrial and that the defendant was not prejudiced because the jury overheard a statement that the co-defendant had pleaded guilty. In so holding, the court stressed that the co-defendant took the stand thereafter, testified as to his participation in the crime and that he had pleaded guilty. In Moore v. State, supra, the trial court advised the jury that a co-defendant had pleaded guilty during the trial. The District Court reversed, holding the information was irrelevant, hearsay and prejudicial, and that proper objection had been made. The authorities relied upon in Moore demonstrate that the prejudice to the defendant resulted from the spillover effect which such information would have on the defendant particularly because he was found guilty as an aider and abettor. In Thomas v. State, supra, the prosecutor twice advised the jury that defendant’s accomplices all had been convicted. Appellant twice moved for mistrial which was denied. Relying on the general rule quoted above, the District Court reversed because the defendant’s right to a fair and impartial trial had been prejudiced. Finally, in Walters v. State, 217 So.2d 615 (Fla. 2nd DCA 1969), the court refused to overturn a conviction where a deputy testified that an accomplice was in Raiford, the State prison. The court affirmed because neither an objection nor motion for mistrial had been made and because the testimony did not tie the incarceration to the subject offense.

The bottom line of these Florida cases is that the State may not show that a co-defendant or an accomplice pleaded guilty or was convicted because it is not relevant and it may have a very prejudicial effect upon the determination of the guilt or innocence of the defendant. However, each case must be examined to determine whether the error has been preserved and, if preserved, whether the information was so prejudicial as to require reversal.

In the present case Cain testified at length as to the involvement of Loudd and himself in the drug scene and in the criminal episode charged in the information. The State’s inquiry about Cain’s guilty plea and sentence was irrelevant and subject to objection. At the least a cautionary instruction would have been appropriate upon proper motion. However, the error was harmless here because Cain’s testimony so clearly pointed to his own guilt as well as that of Loudd that the additional information regarding his guilty plea and sentence could not have unduly prejudiced Loudd. Lowery v. State, supra.

For these reasons I concur in the affirmance of the judgment and sentence appealed from.

      . Of course in cross examining an accomplice as a witness for the State, the defendant would generally be entitled to show a conviction or a guilty plea for impeachment purposes.