author: ANSTEAD, Judge.

text:
    GOOD SAMARITAN HOSPITAL ASSOCIATION, INC., Petitioner, v. Joseph Harris SIMON, M. D., Respondent. ST. MARY’S HOSPITAL, INC., Petitioner, v. Joseph Harris SIMON, M. D., Respondent. A. A. MIRANDA, M. D., Petitioner, v. Joseph Harris SIMON, M. D., Respondent. Thomas F. HENNESSEY, Petitioner, v. Joseph Harris SIMON, M. D., Respondent. Elwood D. BRACEY, M. D., Petitioner, v. Joseph Harris SIMON, M. D., Respondent. John F. PAULY, M. D., Petitioner, v. Joseph Harris SIMON, M. D., Respondent.
    Nos. 78-1449, 78-1770 to 78-1774.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.

      Roy R. Watson of Adams, Coogler, Watson & Smith, West Palm Beach, for petitioner Good Samaritan Hospital, Inc.
    J. Timothy Sheehan of Gibson, Gibson & Sheehan, P.A., West Palm Beach, for petitioner St. Mary’s Hospital.
    L. Martin Flanigan of Jones, Paine & Foster, P.A., West Palm Beach, for petitioner A. A. Miranda, M.D.
    Basil E. Dalack and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for petitioner Thomas F. Hen-nessey.
    Ralph B. Paxton of Paxton, Stiles, Crow, Taplin & Bragg, West Palm Beach, for petitioners John F. Pauly, M.D. and Elwood D. Bracey, M.D.
    Richard A. Sprague of Lewis & Kramer, Philadelphia, Pa., Stephen Cahen, Miami, and Henry Tasker, Palm Beach, for respondent.
   ANSTEAD, Judge.

In these consolidated proceedings the petitioners are claiming that the trial court has improperly ordered them to allow discovery by the respondent as to the proceedings of a medical review committee. The petitioners claim that discovery of such proceedings is barred by virtue of Section 768.-40(4), Florida Statutes (1977).

The respondent physician brought a defamation action against the petitioners alleging that the petitioners acted individually and through certain hospital committees to prevent respondent’s admission to the staffs of St. Mary’s and Good Samaritan Hospitals. The respondent alleged that the petitioners published false and defamatory matters about the respondent during the course of the meetings of the various medical committees involved and that the petitioners acted with malice in doing so.

Section 768.40(2) grants immunity to members of certain medical review committees from actions by physicians and other health care providers, arising out of the committee proceedings, so long as the committee member does not act with malice or fraud. Section 768.40(4) appears to bar discovery of any committee proceedings or records “in any civil action” against a health care provider. The trial court concluded that the “malice or fraud” exception contained in Section 768.40(2) also, applied to Section 768.40(4), and hence discovery was not barred in actions where there was no immunity by reason of the existence of malice or fraud. The petitioners contend that Section 768.40(4) should be construed without reference to 768.40(2) and hence bar discovery “in any civil action” including this one. We agree with the trial court.

Enactments of the legislature should not be construed in such a fashion that a totally irrational result is reached. Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975); State Farm Mutual Auto Ins. Co. v. O’Kelley, 349 So.2d 717 (Fla. 1st DCA 1977). Here, the legislature clearly intended to allow actions such as that filed by respondent. The gist of this action is that the petitioners maliciously defamed the respondent during the course of the committee proceedings. But, if we accept petitioners’ construction of Section 768.40(4), no one would be allowed to ever disclose what took place during the course of the committee proceedings. In other words, the legislature would have authorized the action by one subsection, 768.40(2), and, in effect, barred the same action by not allowing disclosure of the defamation, by another subsection, 768.40(4). We do not believe the legislature intended such an irrational result. Rather, we conclude that this is an appropriate case for construing the provisions of Sections 768.40(2) and 768.40(4) together in order to arrive at a proper interpretation. 30 Fla.Jur., Statutes, § 114.

Clearly, one of the broad purposes of Section 768.40 was to establish a high quality of health care in Florida by encouraging the formation of medical review committees to monitor the performance of physicians and other health care providers. However, the legislature no doubt thought that such committees could not function effectively if their proceedings would be subject to complete public disclosure.

Thus, the legislature could have felt that a medical society committee examining the alleged negligence of a physician, may be inhibited in its proceedings if the participants were aware that anything disclosed at the meeting could be used to prove a case against the physician in a civil action for malpractice. Hence, the legislature, in Section 768.40(4), prohibited discovery of the proceedings and records of the committee. Our decision does no harm to that legislative determination. We would also note that this bar to discovery does not, by operation, effectively bar a cause of action for malpractice since evidence of malpractice is otherwise obtainable.

The legislature has also apparently recognized that committee members may be inhibited from action by the threat of a lawsuit by a physician whose conduct is the subject of committee proceedings. But here, certain policy considerations influenced the legislature to grant a limited immunity, not including actions involving malice or fraud. Our decision today is consistent with the expressed intent of the legislature to provide meaningful access to the courts for those asserting a cause of action outside this limited immunity. To do otherwise would raise serious constitutional issues.

While we recognize that Section 768.40 does bar discovery in virtually all actions “arising out of the matters which are the subject of evaluation and review by such committee” we conclude that it does not bar discovery in those actions authorized by the “malice and fraud” exception to immunity granted in Section 768.40(2). Accordingly, the petitions for writ of certiorari are denied.

MOORE and BERANEK, JJ., concur.

      . While the case at hand involves an apparent conflict in purpose and result between the provisions of subsections (2) and (4) of Section 768.40, we also note that the language of subsection (3) is somewhat confusing insofar as its effect on the immunity granted by subsection (2). Subsection (3) provides:
      This section shall not be construed to confer immunity from liability on any professional society or hospital or upon any health professional while performing services other than as a member of a medical review" committee. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted.


source: Caselaw Access Project

license: Public Domain

text:
    James Lee YARBROUGH, Petitioner, v. The Honorable Frederick PFEIFFER, Circuit Court Judge, Florida Ninth Judicial Circuit, and the Honorable Chris Bentley, Director, Florida Division of Administrative Hearings, Respondents.
    No. 78-1559.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.
    James M. Russ and I. Paul Mandelkern, of Law Offices of James M. Russ, Orlando, for petitioner.
    Robert Eagan, State’s Atty., and John T. Berry and R. Scott Palmer, Asst. State’s Attys., Orlando, for respondent Judge Pfeiffer.
    Franklyn J. Wollett, Asst. Gen. Counsel, Tallahassee, for real respondent in interest, Gerald A. Lewis, Comptroller, Dept, of Banking and Finance, Div. of Securities.
   ANSTEAD, Judge.

The petitioner, James Lee Yarbrough, seeks a writ of prohibition to prevent criminal and administrative prosecutions against him before the respondents on the grounds that he is entitled to statutory immunity from prosecution. The respondents agree that prohibition would be the appropriate procedural remedy in this case but deny that petitioner is entitled to immunity.

Petitioner is a securities broker and has been charged with the sale of unregistered securities and other breaches of the Florida Securities Act, Chapter 517, Florida Statutes (1975). In addition, administrative proceedings to revoke petitioner’s brokerage license are pending concerning the same alleged conduct.

During the course of an administrative investigation, the Division of Securities of the Department of Banking and Finance sought the assistance of the Florida Department of Criminal Law Enforcement to gain access to petitioner’s business records. Subsequently, at the request of the FDCLE, a search warrant was issued and executed at petitioner’s place of business. Petitioner contends that his business and personal documents were seized illegally by the use of the warrant and that such documents form the basis of the actions pending against him. He asserts that the warrant was secured improperly to assist the administrative investigation wherein no right to a search warrant existed, and hence the issuance thereof was an abuse of process. He further contends that there was no probable cause for issuing the warrant, that the warrant was an improper “general” warrant, and that the warrant was illegally executed. As a result of the alleged illegal search resulting in the seizure of his personal property and the improper use of such property thereafter, the petitioner contends that he is entitled to immunity under Section 914.04, Florida Statutes (1975), which provides:

No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or State Attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation.

The petitioner contends that the improper use of the search warrant to secure his personal records was tantamount to compelling his production of incriminating evidence against himself and hence entitles him to immunity. See State ex rel. Byer v. Willard, 54 So.2d 179 (Fla.1951).

The most recent pronouncement of the Florida Supreme Court on this issue is the decision in Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977) wherein the court rejected arguments very similar to those made by petitioner here, although a subpoena duces tecum was involved, rather than a search warrant. Although Tsavaris was a 4-3 decision with Justice Sundberg filing a specially concurring opinion with the majority, the court in essence decided that a physician whose personal records were obtained through execution of a subpoena on his employee was not entitled to immunity under Section 914.04, and that suppression rather than prohibition was the appropriate remedy for Tsavaris even if his contentions as to the illegality of the seizure were sustained. We are not only bound by the decision in Tsavaris but we also feel that this case presents even more compelling circumstances for holding that immunity has not been afforded the petitioner through the state’s conduct.

In Tsavaris, Justice Hatchett, in speaking for the majority, stated:

Since in the present case, too, Dr. Tsavar-is “was not asked to say or to do anything,” federal law presents no obstacle to his prosecution. Neither do we find anything in the Florida Constitution which would immunize Dr. Tsavaris from prosecution. The Legislature has seen fit to immunize a narrow class of persons from criminal prosecution for their acts in contravention of the common good. The Legislature has determined that only those who appear before the grand jury or the state attorney and produce information that is deemed of greater value to the community than the prosecution of the witness should reap the benefits of our immunity statute. There is nothing in Article I of our Constitution, the federal constitution, or in any statute, that compels us to insulate those suspected of criminal acts from vigorous investigation and prosecution. (Id. at 752) (Emphasis supplied)

Justice Sundberg, while specially concurring, agreed that Tsavaris was not entitled to immunity. And as to this issue, Willard, supra, was implicitly overruled by Tsavaris. Here, too, since Yarbrough “ ‘was not asked to say or do anything’ ”, the Fifth Amendment of the United States Constitution presents no obstacle to his prosecution. Yarbrough did not testify before the grand jury or the state attorney nor was he personally compelled to produce any records. Hence, pursuant to Tsavaris, neither our state or federal constitution nor Section 914.04 entitles petitioner to immunity. And, unlike the situation in Tsavaris, where the subpoena was issued under the prosecutor’s authority and the potential for prose-cutorial abuse is always present, this case involves the intervention of a neutral and impartial magistrate who was called upon to issue a search warrant only upon a proper showing of probable cause by the state. In addition, if in fact the warrant was unlawfully issued or executed, the petitioner would be entitled to suppression of any evidence illegally seized.

Accordingly, the suggestion for writ of prohibition is hereby denied.

MOORE and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Rollin W. ZIMMERMAN, Appellee.
    No. 78-2086.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joseph R. Moss and Thomas R. Townsend, Jr., of Moss, Young, Denman, Sawyer & Murray, P. A., Cocoa, for appellee.
   PER CURIAM.

The State of Florida seeks through interlocutory appeal review of an order of the trial court transferring a criminal action from the circuit court to the county court. We reverse.

The appellee, Rollin W. Zimmerman, was charged by information with five counts of willfully certifying the correctness of campaign contribution and expenditure reports while knowing such reports to be incorrect, false or incomplete in violation of § 106.-07(6), Florida Statutes. Appellee moved to dismiss the information on the ground that the circuit court lacked jurisdiction in that the alleged offenses were misdemeanors pursuant to § 106.19(1), Florida Statutes. The trial court, after hearing on the motion, entered an' order transferring the cause to the county court on the ground that the two statutes each proscribed the same conduct, and therefore, since the punishment provisions of these statutes were inherently inconsistent, the misdemeanor statute must be considered as controlling. The state then filed the instant interlocutory appeal.

In 1973 the state legislature adopted the Campaign Financing Act, ch. 73-128, Laws of Florida. Among the provisions of the Act were those now denoted as Section 106.07(6) and Section 106.19(1), Florida Statutes, respectively. Section 106.07(6) provides that the willful and knowing certification of an incorrect, false or incomplete campaign contribution report is a felony of the third degree. Section 106.19(1) provides, inter alia, that whosoever fails to report a campaign contribution or falsely reports or fails to include any information required by the Campaign Financing Act in a report is guilty of a misdemeanor of the first degree. The appellee contends that since the filing of an incorrect, false or incomplete report by a candidate, campaign treasurer or deputy campaign treasurer necessarily includes a false certification thereof, these two respective statutes proscribe the same conduct, yet provide for inconsistent punishment. Therefore, in a criminal action this inconsistency must be resolved in favor of the accused, thus limiting the prosecution to the misdemeanor offense.

It is an axiom of statutory construction that the legislature would not enact a purposeless and therefore useless piece of legislation. Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla.1962). It is the judiciary’s duty to uphold and give effect to all provisions of a legislative enactment, and to adopt any reasonable view that will do so. Tyson v. Lanier, 156 So.2d 833 (Fla.1963).

Florida’s Campaign Financing Act places the responsibility on the campaign treasurer to file regular reports of all contributions received, and all expenditures made, by or on behalf of a candidate for political office. Section 106.07(1), Florida Statutes. The making and filing of a false or incomplete report is a misdemeanor under the provisions of Section 106.19(1), Florida Statutes. Here, the appellee is not charged .with the preparation or filing of a false report. Rather, the crime charged is that appellee willfully and knowingly certified under oath that the campaign contribution and expenditure reports filed during his campaign were complete, true and correct. The elements of the misdemeanor and felony acts differ in that it is the false certification of a campaign contribution and expenditure report that constitutes the felony. Although at trial, the proof adduced may also constitute the crime of false reporting, it is the additional element of making the false certification which differentiates the felony from the misdemeanor act. These two crimes are therefore not inconsistent.

Appellee further contends that the provisions of § 106.18 and § 106.21 of the Campaign Financing Act indicate that the legislature intended the misdemeanor provisions of § 106.19(1) to be the controlling provisions with regard to incorrect campaign contribution and expenditure reports. Sections 106.18 and 106.21 provide respectively:

106.18 When a candidate’s name to be omitted from ballot.—
(1) The name of a candidate shall not be printed on the ballot for an election if the candidate is convicted of violating § 106.19.
(2) Any candidate whose name is removed from the ballot pursuant to subsection (1) is disqualified as a candidate for office. If the disqualification of such candidate results in a vacancy in nomination, such vacancy shall be filled by a person other than such candidate in the manner provided by law.
(3) No certificate of election shall be granted to any candidate until all preelection reports required by § 106.07 have been filed in accordance with the provisions of § 106.07 or § 106.20.
106.21 Certificates of election not to be issued upon conviction.—
(1) If a successful candidate is convicted of violating § 106.19(1) prior to the issuance of his certificate of election, such certificate shall not be issued, and a vacancy shall be declared and filled as provided by law.
(2) If a successful candidate is convicted of violating § 106.19(1) subsequent to the issuance of a certificate of election but prior to taking office, such certificate shall be rescinded by the issuing body and declared void, and a vacancy in office shall exist and be filled as provided by law.

Appellee also contends that since only violations of § 106.19 will provide grounds for removal of a candidate’s name from the ballot, or withholding or revocation of a certificate'of election, that this constitutes clear evidence that the legislature intended the provisions of § 106.19 to be paramount to those of § 106.07(1). Appellee’s argument fails to recognize that our state constitution and laws provide other remedies for public officials who commit felony acts. See, e. g., Fla.Const., art. IV, § 7(a) (1968); Section 112.42, Florida Statutes (1977). Thus it appears that the legislature was attempting to fill a gap in the law through enactment of § 106.18 and § 106.21, and in no way intended these enactments to limit the application of the felony provisions of § 106.07(6). In conclusion, we determine that § 106.07(6) and § 106.19(1) proscribe different conduct and are separate and distinct offenses. Therefore, the trial court erred in holding that the offenses charged in the information filed against the appellee were misdemeanors.

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.

      . § 106.07(6) The candidate and his campaign treasurer, in the case of a candidate, or the political committee chairman and campaign treasurer of the committee, in the case of a political committee, shall certify as to the correctness of each report, and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, or political committee chairman who willfully certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . § 106.19(1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chairman, vice chairman, campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:
      (a) Accepts a contribution in excess of the limits prescribed by § 106.08;
      (b) Fails to report any contribution required to be reported by this chapter;
      (c) Falsely reports or deliberately fails to include any information required by this chapter; or
      (d) Makes or authorizes any expenditure in violation of § 106.11(3), or any other expenditure prohibited by this chapter;
      is guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.-083.


author: LEFFLER, KENNETH M., Associate Judge.

text:
    James CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-2242.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and llene Allison Brooks, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   LEFFLER, KENNETH M., Associate Judge.

Defendant Carter was adjudicated guilty after he entered a plea of nolo contendere to charges of battery and carrying a concealed firearm. He preserved his right to appeal the trial court’s denial of his motion to suppress evidence he contends was seized as a result of an illegal search of his person.

On June 12, 1977, at approximately five o’clock in the morning, a Palm Beach County Sheriff’s Deputy Batista was enroute to answer a call when he passed a lone man (Defendant Carter) walking east along State Road 80 about 12 miles east of Belle Glade. On returning to Belle Glade after responding to that call the deputy again noticed the same man still walking east along the highway in this area of the county where there are farms and ranches, very few houses, and no street lights. Thinking it unusual for someone to be walking along that lonely stretch of road 30 miles from West Palm Beach at that time of morning, and that the man might be stranded with his car up the road and in need of help, the deputy stopped, got out, greeted Defendant, asked him to stand in front of the patrol car, and inquired of him what he was doing and where he was going (his answer to which was Belle Glade, opposite the direction he was headed). With Defendant illuminated by the headlights and spotlight of the patrol car, the deputy glanced down at Defendant’s waistline, and noticed a bulge in his right front pocket causing it to be weighted down. At the same time, while standing next to Defendant, the deputy tapped the bulge with the back of his hand and felt it was metal or something hard; turning to “look sort of” in the pocket, he could see “the grips” of a gun. Asked then what was in his pocket, Defendant said, “Ah, well, I’m going to tell you the truth. I’m on the run, because I just shot a man in Belle Glade.” Thereupon the deputy removed the gun from Defendant’s pocket and arrested him.

The Defendant has urged on appeal that we adopt the law applied in Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976) which our Supreme Court has reviewed and approved on conflict certiorari in Mullins v. State, 366 So.2d 1162 (Fla., 1978). Vollmer (a pedestrian walking a city street at 3:00 A.M.) and Mullins (a bicyclist riding slowly through a residential area in the very early morning hours) were stopped, arrested and searched on nothing more than the arresting officer’s bare suspicion each was involved in illegal activity. Since the initial stop and arrest in each case was unlawful in each instance, the search which followed was necessarily invalid since a warrantless search is permissible only as an incident to a lawful arrest.

While noting some similarities of fact, Vollmer and Mullins are distinguishable from the case sub judice. Here, if we are to believe the arresting officer, he did not stop the Defendant for the purpose of arresting him, but for the purpose of offering him any assistance he might need or wish. And, the search of the Defendant, preceding rather than following his arrest, was limited in its scope to a single tap of and glance into the pocket for the purpose of determining if the Defendant was armed.

Justice Alderman, in his concurring opinion in the Mullins case, supra, recognizes that there are instances which may arise where legitimate contact between a police officer and a citizen may result in the citizen’s arrest for a crime detected by the officer as a result of such contact. We view Deputy Batista’s contact with and arrest of the Defendant as an example of the type of contact to which Justice Alderman alluded. In doing so, we accept as plausible the officer’s explanation for stopping the Defendant. We detect nothing illegal or improper in the officer’s actions. The officer was doing nothing more than the general public has the right to (and does) expect of its policemen in the process of their normal patrol, surveillance and investigatory duties. See State v. Price, 363 So.2d 1102 (Fla. 2d DCA 1978).

In denying the Defendant’s motion to suppress, the trial court found from testimony of the deputy that the “. original stop (of the defendant) was reasonable, and (the deputy) stopped to render assistance to someone who may have been in need of it . . .” The ruling of the trial court on a motion to suppress, when it comes to the reviewing court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). We accept the trial court’s findings and ruling.

The McNamara case is the latest of a relatively large number of cases in Florida dealing with searches for the limited purpose of determining whether a person with a pocket, waistband and other clothing bulge is armed. Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971); State v. Woodard, 280 So.2d 700 (Fla. 2d DCA 1973); Williams v. State, 294 So.2d 37 (Fla. 3d DCA 1974); State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978); Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978). Whether considered in conjunction with Florida Statutes, Section 901.151 (Florida Stop and Frisk Law) or compared with the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), all Florida cases have been decided against those searched. The applicable test, as gleaned from McNamara, is whether, from the totality of the circumstances present, an officer has probable cause, or reasonable ground under the circumstances of any encounter with a person, to believe that person to be armed and dangerous. If he does, a reasonably limited search of the person may be made for the purpose of neutralizing the danger and the fruits of such search are admissible in evidence. We think the test has been met in the case sub judice.

Denial of the Defendant’s motion to suppress and judgment of the trial court is hereby affirmed.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.


author: BERANEK, Judge. DAUKSCH, Judge,

text:
    STATE of Florida, Appellant, v. Harry J. AIKEN, Appellee. STATE of Florida, Appellant, v. Fred DAVIS, Appellee.
    Nos. 77-2444, 77-2453.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    David H. Bludworth, State’s Atty., Jolen Rawls and James R. Wolf, Asst. State’s Attys., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Charles W. Musgrove, Asst. Attys. Gen., co-counsel for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
    Janet Reno, State’s Atty., and Alan E. Krueger, Miami, for amicus curiae.
   BERANEK, Judge.

This is a consolidated appeal involving two criminal cases in which the defendants/appellees are charged with the crime of sexual battery under Florida Statute 794.011(3). In both cases the trial court dismissed the informations because there was no allegation that the defendant harbored a criminal intent to obtain sexual gratification in committing the sexual battery. The State appeals and we reverse.

In the case of State v. Aiken, Count II of the information alleges that defendant:

“On the 17th day of March, 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon Annie Grace Walker, a person over the age of eleven (11) years, without her consent, to-wit, by oral, anal and vaginal sex and in the process thereof did use or threaten to use a deadly weapon, to wit: knife, razor, or other sharp instrument or did threaten to use actual physical force likely to cause serious person injury, contrary to Florida Statute 794.011(3) . . . ”

In the case of State v. Davis, Count I alleged that:

“In the County of Palm Beach and State of Florida, on the 13th day of February, in the year of our Lord, one thousand nine hundred and seventy seven in the County and State aforesaid, Fred Davis did commit sexual battery upon Gigi Pinder, a person over the age of eleven (11) years, without her consent, to-wit: sexual intercourse and in the process thereof did use or threaten to use a deadly weapon, to-wit: a gun, and did use physical force, to-wit: striking Gigi Pin-der on head with a gun, likely to cause serious personal injury, contrary to Florida Statute 794.011(3), ...”

In the Davis case defendant was also charged in Count II of the information as follows:

“On the 13th day of February, 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon Gigi Pinder, a person over the age of eleven (11) years, without her consent, to-wit: sexual intercourse and in the process thereof did use or threatened to use deadly weapons, to-wit: an axe, pitchfork, and did use actual physical force, to-wit: hitting Gigi Pinder in the face with fist, cutting said person with pitchfork, and swinging an axe, likely to cause serious personal injury, contrary to Florida Statute 794.011(3), . . . ”

In both cases defendants moved to dismiss the information because of the absence of any specific allegation regarding sexual gratification. Both of these motions were based upon the case of State v. Alonso, 345 So.2d 740 (Fla. 3d DCA 1977), cert. denied without opinion, 352 So.2d 174 (Fla.1977). The trial court granted both motions to dismiss based on the Alonso holding that a desire for sexual gratification is an essential element of a sexual battery. We disagree with the opinion of the Third District Court in State v. Alonso, supra, and with the subsequent case of Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978), which limits Alonso.

The statute in question is F.S. § 794.011, entitled, “Sexual Battery.” It replaces pri- or statutes dealing with the crime traditionally known as rape. The prior rape statute was F.S. § 794.01 which was based on the common law definition of “carnal knowledge.” It is from this common law concept that sexual gratification became an important aspect of the crime and the development of the elements thereof.

Under the present statute sexual battery is a considerably broader crime than rape. Sexual battery is specifically defined as follows:

“(f) ‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.”

The specific subsection of the statute under which the defendants herein were charged is as follows:

“(3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

Our review of the Alonso and Hendricks cases and of the prior decisions construing the rape statute convinces us that a desire for sexual gratification is not a necessary element to the crimes charged in these consolidated cases. Here we are dealing with sexual batteries alleged to have been committed by males upon females with the male’s sexual organ. No foreign objects are involved. We, therefore, do not consider the question of intent to gain sexual gratification where the actor used a foreign object. It is simply our decision that a desire for sexual gratification is not a necessary element to a sexual battery as charged here. Chapter 794 of the Florida Statutes shows a clear intent to protect an individual’s sexual privacy from violence. The Florida Legislature is clearly within its legislative prerogative in making criminal the particular conduct involved here.

In the defendant’s arguments it is asserted that the traditional common law definitions of rape must form the basis for the present sexual battery statute. It is urged that this historical basis supports the approach of the Third District Court of Appeal in Alonso and Hendricks, supra. Hendricks holds it to be unnecessary to allege the element of sexual gratification only because it is presumed from the act itself. Apparently, it remains a necessary element even if proof and allegations are unnecessary. We do not agree. Instead, we believe the Legislature must be presumed to legislate with an eye on today’s known facts and experience. Hopefully, the present sexual battery statute is more progressive and the result of more information rather than based solely upon an historical perspective. Chapter 794 proscribing sexual battery says nothing whatsoever about a desire for sexual gratification and we see nothing improper in this approach. We hold that such a desire is not an element of the offenses charged here and the trial court, therefore, erred in granting the motions to dismiss. The orders in question are reversed and the case is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY, C. J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

While I agree with the majority opinion I see no reason to refuse to “consider the question of intent to gain sexual gratification where the actor used a foreign object” and otherwise restrict the opinion to use a male sexual organ against a female. To explicitly restrict the opinion invites appellate litigation which will without doubt result in the same interpretation of the statute with the slightly different facts.

The question on appeal, it seems to me, is not strictly limited to the requirement to plead and prove intent to gain sexual gratification when only the penis is used by the attacker. The question is whether the sexual battery statute is violated when a sexual attack is made regardless of any sexual gratification motives provided the battery falls within the statutory definition set out below. There is no question in my mind the legislature meant to and did proscribe a crime of violence when it enacted this statute and made this battery a more serious crime because sexual organs are involved. In the vast majority of cases, if not all cases, a bare assault Section 784.011, Florida Statutes (1977) or simple battery Section 784.03, Florida Statutes (1977) are less injurious than the sexual violence which the statute does not limit to those acts mentioned in the majority opinion.

It is my suggestion we step out and say sexual gratification is not a required element of proof in any sexual battery. Sexual battery is defined in the statute as:

“Sexual battery” means oral, anal or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

While it is not necessary to set out and I cannot imagine all the possible ways the statute can be violated I suggest it is within common knowledge various acts which have been perpetrated upon victims and which are violations of the statute. The use of foreign objects (objects other than the actor’s sexual organ) against or into the victim’s sexual organ or anus is clearly proscribed by the statute. I disagree with the statement in Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978) “ . . . when an object other than the actor’s sexual organ is brought into union with the victim a question of intent to derive sexual gratification comes into play and becomes a necessary element of the crime.” In my opinion the statute is specific in its deletion of that supposedly required element. It is apt now to say sexual battery is a crime of violence and not a crime of sex. The victim can easily be a man as well as a woman and the perpetrator a woman as well as a man and the tool other than the penis and the target not just the vagina. The statute, Section 794, Florida Statutes (1977) is broader than its predecessor, the forcible rape statute, and meant to be broader and I think the question before us should be answered in its broad sense. I disagree with Hendricks v. State, supra, and with Alonso v. State, 345 So.2d 740 (Fla. 3d DCA 1977) and with the argument in the concurring opinion in Alon-so that good-natured horseplay may be interpreted as a sexual assault and thus expose the actor to undeserved prosecution. I suggest good-natured horseplay has resulted in all kinds of batteries and assaults, if misinterpreted, but Pandora’s Box of prosecution is yet to be opened on those “batteries.” In horseplay there is oft-times an implied consent and usually a defensive response from the “attacked” person, either of which without the horseplay aspect, could be a statutory violation. The defense to a criminal allegation in those cases is so obvious that the charge is rarely brought, but if brought, defeated.

It is my view we should hold that proof of sexual gratification is not required under the statute. The only difference between this statute and other battery statutes, is the battery is done to or with a sexual organ or the anus, in this statute and such is not required in the others.

This is a question of proof of general criminal intent, animus felónico, which should only be required without consideration of what perverted pleasure the attacker may be seeking, sexual violence or sexual gratification with the understanding either might be the result of the sexual battery. If a defense of “horseplay” or accident is proffered then the state will be required to meet that defense, just as it would when an accused in a non-sexual battery case makes that defense.

I concur with the majority opinion, with my added reasons, and so far as it goes. I suggest it should have gone further and answer the entire question.

      . We do not believe the Legislature’s failure to include a desire for sexual gratification as an element of the offense in question was a mistake, or an oversight. Instead, it is more likely the result of extensive modem sociological studies which are uniformly of the opinion that sexual assaults are motivated by rage, aggression and pure violent motivations rather than by the desire for sexual gratification. See Browniller, Susan, Against Our Will; Women and Rape, Simon and Schuster, N.Y.1975; Brodshy, Stanley L., Walker, Marcia J., Sexual Assault, ch. The Rapist in Treatment; Professional Myths and Psychological Realities, Lexington Brooks, D.C. Heath & Co., Lexington, Mass., 1976; Amir, M., Patterns in Forcible Rape, U. of Chicago Press, 1971. Groth and Burgess, Rape A Sexual Deviation, Am.J. Or-thopsychiatry 400 (1977). C. Horos, Rape, pp. 11 and 17, Today Publishing Co., Inc., New Canon, Conn. 1974. Groth, Burgess and Holmstrom, “Rape: Power, Anger and Sexuality,” American Journal of Psychiatry 134:11:1239, 1240 (November, 1977) and Groth and Burgess, “Sexual Dysfunction During Rape,” New England Journal of Medicine, 297:14:764 (October, 1977); Sexual Assault Services (a manual) Flakne, G. W., Hennepin County Attorney.


text:
    Domingo VEGA, Appellant, v. Thomas W. HUGHES, Individually, and American Home Furniture Company, Appellees.
    No. 78-2143.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Rehearing Denied May 16, 1979.
    Larry Morgan, Greater Orlando Area Legal Services, Inc., Orlando, for appellant.

      Bernard C. O’Neill, Jr. and James B. Bog-ner of O’Neill, Dyer & Bogner, P. A., Orlando, for appellees.
   ANSTEAD, Judge.

This appeal involves the construction of Florida statutes authorizing pre-judgment replevin.

In response to a complaint filed by appellant alleging improper collection practices, appellees, Thomas W. Hughes and American Home Furniture Company, counterclaimed seeking possession of personal property by virtue of appellant’s alleged default under a conditional sales contract. In conjunction therewith, appellees sought a writ of replevin. An order to show cause was thereafter issued and a hearing was held on September 15, 1978. The order to show cause specifically provided that the appellants:

may appear personally or by way of an attorney and present testimony at his behalf at the time of the hearing. .

Notwithstanding this provision of the order the trial court refused to allow the appellant to present testimony at the hearing and ordered the writ of replevin to issue upon the posting by American Home of a $1,000.00 bond.

Appellant claims the trial court erred in refusing to hear testimony and in setting the amount of the bond. We agree and reverse. The provisions of the order to show cause and those of Section 78-065(2)(e), Florida Statutes (1975) granted the appellant the right to present testimony at the subsequent hearing. Presumably, it was because of the mandate of Section 78.-065(2)(e) that the provisions authorizing testimony were included in the show cause order. In any case, it was error for the trial court to thereafter deny the appellant the right to present testimony.

We also agree with appellant that Section 78.068(3) is applicable and requires that the bond be set in the amount of twice the value of the goods replevied or twice the balance due on the debt, whichever is lesser. Using these provisions as guidelines, there is no evidence in the record to support the trial court’s conclusion that bond should be posted in the amount of $1,000.00.

Accordingly, in order to provide appellant the opportunity to present testimony at the show cause hearing, and for the setting of the bond under the appropriate statutory guidelines, this cause is hereby reversed and remanded to the trial court for further proceedings consistent with this opinion.

MOORE and BERANEK, JJ., concur.


author: SCHEB, Judge.

text:
    Martha S. CONROY, Appellant, v. Andrew Jackson CONROY, Appellee.
    No. 78-762.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.
    Rehearing Denied May 14, 1979.

      J. Russell Hornsby, Orlando, for appellant.
    R. Philip Haddock, Lakeland, for appel-lee.
   SCHEB, Judge.

The wife challenges those parts of the trial court’s judgment of dissolution of marriage in which the court dealt with alimony, disposition of property, and the award of attorney’s fees. After careful review, we have concluded the court erred only in its award of attorney’s fees.

In her counterpetition for dissolution, the wife alleged that she needed funds to employ an attorney and requested that the court order her husband to pay her lawyer a reasonable fee. At the final hearing, her counsel presented an expert witness who testified that a reasonable fee would be not less than $15,000 nor more than $20,000. The husband did not contest the reasonableness of this amount but argued that he should not be responsible for his wife’s fees. The court agreed with the husband’s position, and ordered each party to pay his own attorney’s fees. Further, in Paragraph 4 of the judgment the court ordered:

[Tjhat a fair and reasonable fee to the attorneys for the Wife in this cause will be the sum of Sixteen Thousand and No/100 Dollars ($16,000.00) for which, pursuant to this Order, the Wife will be financially responsible for payment.

It is with this provision that we find fault.

The rule in this state is quite clear that in dissolution proceedings, as in other actions, the trial court has no authority, absent a claim for a charging lien, to enter an order or judgment requiring a party to pay his or her attorney for representation during that proceeding. Cristiani v. Cristiani, 114 So.2d 726 (Fla. 2d DCA 1959); Kucera v. Kucera, 330 So.2d 38 (Fla. 4th DCA 1976); Chaachou v. Chaachou, 122 So.2d 24 (Fla. 3d DCA 1960). The reasons for this rule become obvious in a case such as the present one where a litigant finds herself in an adversarial relationship with her own counsel concerning his fee and thus is deprived of her right to due process in the determination of that fee. Consequently, there having been no claim for a charging lien at the time the court entered its judgment, the trial court was without authority to order the wife to pay her attorney a $16,000 fee.

We vacate Paragraph 4 of the court’s judgment which we quoted above. We affirm the judgment in all other respects.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . We note that subsequent to the entry of judgment appellant’s counsel made a claim for a charging lien. Once our mandate goes down, they will of course be able to pursue this remedy or seek redress in a separate action. See Cristiani v. Cristiani, supra; Weksler v. Stamatinos, 314 So.2d 616 (Fla. 3d DCA 1975), cert. den. 336 So.2d 108 (Fla.1976); Kurzweil v. Simon, 204 So.2d 254 (Fla. 3d DCA 1967).


author: BERANEK, Judge.

text:
    R. C. WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 78-351.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied June 13, 1979.

      Zebedee W. Wright, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and sentence on a charge of possession of a controlled substance (heroin) with intent to sell or deliver. F.S. § 893.13(l)(a)(l). Defendant was initially charged in a two-count information with Count I, sale of heroin, and Count II, possession of heroin with intent to sell or deliver. The jury found him guilty of Count II and not guilty of Count I.

The evidence was that the police contacted a girl friend of the defendant who was herself in jail on a heroin charge. They enlisted the aid of this “confidential informant” to “make a case” against the defendant. There is no evidence in the case as to the defendant’s reputation for prior drug dealings. In any event the police in some fashion secured the release from prison of the girl friend in exchange for her assistance as a confidential informant against the defendant.

Immediately upon her release the girl friend contacted the defendant and sought to obtain heroin from him. On three consecutive days she contacted him with her request for heroin. The defendant knew that the confidential informant was a heroin addict. On each of these three occasions the confidential informant was unsuccessful in getting any heroin from the defendant. On the fourth day it happened to be the birthday of the confidential informant. She again contacted defendant over the telephone and arranged to come over to a home not owned by the defendant and visit with him. On her birthday she went to the house with the defendant. The defendant had arranged a small party for the two of them. He provided a present, a birthday card, flowers, a cake and a bottle of champagne. The two began celebrating the birthday and after about an hour when the defendant was in the “right mood” the girl friend again began asking for heroin as a birthday present. He left the room and went to another part of the house. He returned with a small amount of heroin in a film can. The two of them, defendant and the C.I./ girl friend divided the heroin into small tinfoil packages and at this point defendant delivered the heroin to the girl friend.

There was no other evidence in the case other than from the police officers and the police chemist who testified about the relationship between the police and the confidential informant and about the identity of the heroin.

At this point the State rested and the defendant elected not to take the stand or present any evidence. The defendant, at a charge conference, requested that the Court charge the jury on the theory of entrapment. This request was denied and the case was submitted to the jury. The jury found the defendant guilty of possession of heroin with intent to deliver.

On appeal defendant raises numerous points. We reverse on the absence of an entrapment instruction. The facts outlined above, even though they were presented on cross-examination in the State’s case, constitute adequate evidence of entrapment to present this issue as one for jury consideration. There was arguable undue persuasion and coercion or unusual enticement by the confidential informant who was working directly for the police. See Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978). Indeed, the evidence here seems substantially stronger than in other cases where entrapment was held to be an issue. See Kwasniewski v. State, 303 So.2d 373 (Fla. 1st DCA 1974), and Stiglitz v. State, 270 So.2d 410 (Fla. 4th DCA 1972). We foresee problems in this and other future cases when the defendant relies solely on cross-examination of State witnesses to support a defense of entrapment. Here defendant filed nothing before trial giving notice of his intent to rely on entrapment. Defense counsel waived opening statement and defendant did not take the stand and offered no evidence. It was thus not until the charge conference that the State knew defendant was relying on entrapment. When faced with an entrapment defense, the State may introduce rebuttal evidence of a defendant’s predisposition to commit the crime by showing, among other things, proof of prior criminal activities, or a reputation for such activities. Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978); Moody v. State, 359 So.2d 557 (Fla. 4th DCA 1978). Here the State never had the opportunity to present this evidence because defendant’s reliance on entrapment was unknown until the charge conference. Under these circumstances, the State should be given an opportunity to reopen the proof to meet the entrapment issue. Various states have allowed the presentation of such anticipatory rebuttal evidence of other crimes as part of the prosecution’s case in chief when it appears from defendant’s cross-examination or otherwise that defendant will rely upon entrapment. People v. Mann, 31 N.Y.2d 253, 366 N.Y.S.2d 633, 288 N.E.2d 595 (1972); State v. Perkins, 19 Utah 2d 421, 432 P.2d 50 (1967); State v. Frates, 160 Mont. 431, 503 P.2d 47 (1972). The defendant, of course, must control his own defense and may at any time inform the court of his binding election not to rely upon entrapment making evidence of predisposition and other similar crimes generally inadmissible.

It is our conclusion that entrapment was a proper jury issue here and the Court erred in failing to instruct thereon. We have considered all of the other points raised by appellant and find same to be without merit. The judgment and conviction below'is reversed and the matter remanded for a new trial on the merits.

REVERSED AND REMANDED.

MOORE, J., and FARRINGTON, OTIS, Associate Judge, concur.


text:
    Jimmy Lee ASHLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1542.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 8, 1979.

      Bennett H. Brummer, Public Defender and Edward J. O’Donnell and John Lipinski, Special Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The defendant was charged with (1) involuntary sexual battery, (2) burglary, (3) robbery, and (4) unlawful possession of a firearm while engaged in a criminal offense. After a jury trial, the defendant was found guilty of each of the charges and was sentenced as follows: Count 1 (involuntary sexual battery), life imprisonment, with the provision that he be “required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for Parole;” Count 2 (burglary), life imprisonment with the provision that he be “required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for parole;” Count 3 (robbery), life imprisonment with the provision that he be “required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for Parole;” and Count 4 (unlawful possession of a firearm while engaged in a criminal offense), fifteen years imprisonment with the provision that he not be eligible for parole until he has “served THREE (3) CALENDAR YEARS, pursuant to Section 775.087(2) of the Florida Statutes.”

The first two points raised on appeal are directed to the sentences imposed. With regard to Counts 1,2 and 3, it is urged that Section 775.082(1), Florida Statutes (1977), provides for a term of life imprisonment with the requirement that the defendant serve twenty-five years before becoming eligible for parole when the defendant is convicted of a capital felony. In the present case, the defendant’s conviction for involuntary sexual battery, burglary and robbery could have been punished by a maximum sentence of life imprisonment, but there is no provision for a life felony to carry with it the requirement of serving twenty-five years before becoming eligible for parole. The State concedes error in the sentencing of Counts 1, 2 and 3 and suggests that the twenty-five year maximum sentence requirements imposed under these are excessive only to the extent that they exceed the statutory three-year provision under Section 775.087(2), Florida Statutes (1977). This court is not inclined to revise these sentences inasmuch as our prerogative on appeal is to determine only the legality of the sentences. See La Barbera v. State, 63 So.2d 654 (Fla.1953). We will, therefore, reverse the sentences imposed under these counts and remand the cause to the trial court for resentencing according to the provisions of the statute.

The second point on appeal urges that the three-year mandatory provision of the sentence on Count 4 (unlawful possession of a firearm while engaged in a criminal offense) is not authorized because the crime involved is not one of those for which a minimum three-year sentence is established by Section 775.087(2), Florida Statutes (1977). The State argues that because the defendant was found guilty of sexual battery which is one of the charges upon which he. could have been given a three-year mandatory sentence, therefore, the imposition of the three-year mandatory sentence on Count 4 was harmless. We cannot agree, and inasmuch as the cause will be remanded for resentencing under Counts 1, 2 and 3, we hereby strike the unauthorized portion of the sentence on Count 4, that is, the provision that the defendant “not be eligible for parole until you [the defendant] have served THREE (3) CALENDAR YEARS, pursuant to Section 775.087(2) of the Florida Statutes.”

The third point on appeal challenges the sufficiency of the evidence presented to prove sexual battery. The defendant urges that the evidence does not show “penetration” or “union” as provided by the statute. Our examination of the evidence in the light of this point convinces us that there was sufficient evidence to prove “penetration.” See Williams v. State, 53 Fla. 84, 43 So. 431 (1907). Also, it is clear that there was “union” of the sexual organs as required by the statute. See § 794.011, Fla. Stat. (1977).

The fourth point on appeal urges reversible error because of the trial court’s refusal to discharge a juror on challenge for cause. The question of the competency of a challenged juror is one of mixed law and fact to be determined by the trial judge in his discretion, and his decision will not be disturbed unless error is manifest. Singer v. State, 109 So.2d 7, 22 (Fla.1959). The record reveals testimony which is sufficient to sustain the trial court’s determination that the challenged juror could render a fair and impartial verdict despite her antipathy to the heinous nature of the crime. Cf. Singer v. State, supra. Therefore, we find no error under this point.

The fifth point on appeal urges error because of the denial of various motions for mistrial. No error was presented. See Johnsen v. State, 332 So.2d 69 (Fla.1976); and Oliva v. State, 346 So.2d 1066 (Fla. 3d DCA 1977). On the separate ground that one of the comments objected to was invited error, see Jackson v. State, 359 So.2d 1190 (Fla.1978).

The sixth point presented urges error upon the denial of the defendant’s motion to suppress his confession. The record fails to sustain the defendant’s position that he was unable to understand the waiver of his constitutional rights. The recorded statement itself reflects that the defendant was in complete control of his mental facilities at the time. Cf. Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977). In this connection, it should be noted that the evidence presented at the trial overwhelmingly established the defendant’s guilt so that the admission of the confession, even though error, would have been harmless. Cf. Gibbs v. State, 344 So.2d 621 (Fla. 3d DCA 1977).

The seventh point presented urges error upon the exclusion at trial of a psychologist’s testimony, which was allowed in at the motion to suppress the confession hearing, but was not competent as to any issue before the jury. Evidentiary questions of materiality, relevancy and competency aré for the resolution of the trial court in the exercise of sound discretion, and rulings on admissibility will not be disturbed unless an abuse of discretion appears. See Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968). As there was no such abuse of discretion shown, no error appears on this point.

Having examined the points presented and finding error only on the points relevant to sentencing, the judgment is affirmed and the sentences on Counts 1, 2 and 3 are reversed and the cause is remanded to the trial court for sentences in accordance with the views herein expressed. The sentence on Count 4 is affirmed with the offending provision of a mandatory three-year sentence stricken therefrom.

Accordingly, (1) the judgment and sentence on Count 4 is affirmed, as amended, and (2) the sentences on Counts 1, 2 and 3 are reversed and the cause remanded for resentencing.


text:
    STATE of Florida, Appellant, v. Arthur SHIPMAN and Frederick A. Pierce, Appellees.
    No. 77-1493.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied June 13, 1979.
    Michael J. Satz, State’s Atty. and William W. Herring and Patti Englander, Asst. State’s Attys., Fort Lauderdale, for appellant.
    Fred Haddad, of Sandstrom & Haddad, Fort Lauderdale, for appellees.
   ANSTEAD, Judge.

This appeal from an order granting a motion to suppress involves the legality of an arrest made by a municipal police officer outside his territorial jurisdiction.

On December 21, 1976, Fort Lauderdale police officer Puleo, working undercover and acting on information supplied by an informant, met with Dennis Dalicandro at Meyer’s Pizza Restaurant in Pompano Beach to set up a drug buy. Puleo purchased an ounce of marijuana from Dali-candro and arranged for the purchase of one hundred (100) pounds of marijuana on the following night. The Broward County Sheriff’s Office agreed to assist in monitoring the transaction. The next night, Puleo, accompanied by fellow Fort Lauderdale Officer Dionisi, met Dalicandro at Meyer’s Pizza. Puleo was wired with a body bug which was being monitored by two other Fort Lauderdale police officers. Puleo and Dionisi were taken by Dalicandro to a 7-11 store in Pompano Beach, where Dalicandro placed numerous phone calls to “somebody.” At 11 p. m. Dalicandro announced that “the stuff is ready” and directed the officers to a residence in Pompano Beach.

Upon arrival, Puleo was requested to take Michael Knieper outside to the trunk of Puleo’s car to show Knieper the money to be used for the purchase. Appellee Frederick Pierce arrived shortly thereafter and was also taken outside to see the money. While Puleo and Pierce were outside, appellee Arthur Shipman arrived and carried a large plastic bag into the residence. Puleo and Pierce were directed to follow. Once inside, Puleo opened up the bag and found a large quantity of marijuana. At that point, two other alleged participants in the drug deal, James Morris and James Gelski, ran into the room, yelling “the cops are here” and all six subjects began fleeing the apartment out the rear door. Puleo chased after and forcibly brought Dalicandro back into the house.

Puleo then opened the front door and let Deputy Sheriff Lillard and other police officers inside. The other five alleged offenders were then brought back inside, apparently by a combined force of Ft. Lauderdale police officers and sheriff’s deputies. Puleo at first conceded that he had made the arrests, but then testified that Deputy Lil-lard was the first to formally advise the subjects that they were under arrest. Ship-man was then searched by Deputy Lillard and approximately an ounce of cocaine was discovered and seized along with the marijuana in the plastic bag. Puleo testified that at no time prior to the arrest of the subjects had he announced his authority as a police officer.

The lower court concluded that the Fort Lauderdale Police Department had no jurisdiction to carry on an investigation and arrest which started and ended in Pompano Beach and granted appellees’ motion to suppress the drugs seized.

The state contends that Officer Pu-leo made a lawful citizen’s arrest of the appellees and that the subsequent search was incident to that lawful arrest. Before examining the state’s contentions, we must first consider the trial court’s finding of fact that it was Officer Puleo and not Deputy Lillard of the Broward County Sheriff’s Office who effected the arrests. This finding of fact is presumed to be correct and should not be disturbed unless clearly erroneous. Cameron v. State, 112 So.2d 869 (Fla. 1st DCA 1959). We find that there was ample evidence to support the lower court’s conclusion that Puleo had effected the arrest by “containing” the suspects and pointing out who he wanted arrested, and that Lillard’s uttering of the magic words “you’re under arrest” did not constitute the point at which appellees were taken into custody.

Upon leaving Fort Lauderdale, Puleo had no authority or power as a police officer. At the time of the arrest, Puleo’s authority was no greater than that of a private citizen. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962). In Collins the Second District Court of Appeal noted:

It is likewise true that police officers outside their jurisdictional territory may make an arrest as private persons where a private person could lawfully make an arrest. A private citizen does have the common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has probable cause to believe, and does believe, the person arrested to be guilty. Even though there was time to obtain a warrant, a private citizen may make such an arrest and justify his failure to obtain a warrant by proving the person arrested was actually guilty of the felony. (Emphasis added; citations omitted) (Id. at 703)

See also State v. Williams, 366 So.2d 135 (Fla. 2d DCA, opinion issued January 10, 1979); State v. Jimerson, 330 So.2d 169 (Fla. 4th DCA 1976); and State v. Crum, 323 So.2d 673 (Fla. 3d DCA 1975). However, Puleo’s actions would not be sustainable as those of a private citizen if Puleo was acting “under color of his office” at the time he observed the felonious conduct which resulted in the subsequent arrest. State v. Crum, supra. “Under color of office” refers to a law enforcement officer actually holding himself out as a police officer, by either wearing his uniform or in some other manner openly asserting his official position, in order to observe the unlawful activity involved or the contraband seized. Here, as in Crum, the police officer acted at all times as a private citizen (i. e., an undercover agent). Prior to the arrests he never disclosed his official identity to the participants in the transaction. While Pu-leo may have been acting consistent with his police duties in wiring himself for sound; grabbing the last subject who ran out the door and forcing him back inside at gunpoint; letting the officers in through the front door; and finally designating for Deputy Lillard which persons rounded up were involved; that activity was nothing different from what a private citizen could have done had he observed the same unlawful conduct. Officer Puleo was admitted as a private citizen, and once having observed a felony committed in his presence, while he was acting as a private citizen, was not obliged to let the offenders escape, whether or not that meant forcing them back into the house.

While we have concluded that the arrest in this case was lawful, we must note that we share the trial judge’s concern for the apparent increase of activity by municipal police officers outside their jurisdiction. We recognize the legitimate need of police officials to detect, follow and arrest offenders wherever they may go, especially in today’s society where illicit drug operations and other organized criminal activities are not conveniently conducted within the confines of a single jurisdiction. However, it would appear that there are numerous official ways whereby police authorities may be deputized or granted extra territorial police powers when it becomes necessary. It seems rather ludicrous for police officials to have to rely on a citizen’s authority to justify an arrest made in the culmination of an official police operation.

For the reasons set out above, the order of suppression is reversed with directions that further proceedings be in accord with this opinion.

BERANEK, J., and SIEGENDORF, ARDEN M., Associate Judge, concur.


author:
LETTS, Judge.
      GREEN, ROBERT ALEXIS, Jr., Associate Judge,

text:
    David FORDHAM, Appellant, v. CARRIERS INSURANCE COMPANY, etc., et al., Appellees.
    No. 77-1794.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied June 8, 1979.

      Hubert R. Lindsey, of Farish & Farish, West Palm Beach, for appellant.
    Robyn Greene, of Greene & Cooper, P.A. and Marlow, Shofi, Ortmayer, Smith & Spangler, P.A., Miami, for appellees.
   LETTS, Judge.

This case involves an automobile accident. The plaintiff’s face, arm and shoulder were dragged along the rock imbedded shoulder of a road and his face, at that time, turned into a pulp. The case was tried before a jury and a verdict returned in the sum of $450,000.00. A motion for a new trial and a motion for a remittitur were filed, thereupon the trial judge entered the following Order:

THIS CAUSE CAME on to be heard on Defendants’, BUDGET RENT A CAR OF JACKSONVILLE, INC., SHERRICK ENTERPRISES, INC. and CARRIERS INSURANCE COMPANY’S Motion for Remittitur or in the alternative Motion for New Trial. This Court having sat as trial Judge for four days and said trial being on the issue of damages whereas liability was admitted, this Court was given the opportunity to view all the evidence as to damages and although unwilling to sit as a seventh juror, the verdict was so manifestly excessive so as to shock this Court’s judicial conscience. The Plaintiff impressed the Court with his remarkable recovery after the accident which initially caused serious injuries to the plaintiff. This Court considered all past and prospective medical expenditures which were approximately $15,000.00 as well as the testimony of all witnesses. The plaintiff at trial demonstrated the fact that he has adjusted well to the minimal residual scarring. The plaintiff expressed himself clearly and fully in response to any and all questions. The Plaintiff openly displayed his cosmetic damage which has not affected his excellent scholastic accomplishments and places no impairment on his future or his career. The Court, therefore, being fully advised in all the premises, it is hereby ORDERED and ADJUDGED that this Court finds that the Judgment of $450,-000.00 is excessive, and it is therefore ORDERED and ADJUDGED that unless Plaintiff or his counsel remit the sum of $165,000.00 on the Judgment entered in this case on or before September 1, 1977, the Verdict of the jury be, and the same is hereby set aside and a new trial granted. If Plaintiff or his counsel remit the sum of $165,000.00 on the Judgment entered herein, the Motion for a New Trial will be denied; and in that event, the Clerk of the Court is directed to correct the Judgment here-to-fore entered, or to be entered in this case so as to conform to the amount of the Verdict as herein reduced or to the sum of TWO HUNDRED EIGHTY FIVE THOUSAND ($285,-000.00) DOLLARS.
DONE and ORDERED in Chambers at Palm Beach County, Florida this 27th day of July, 1977.

The plaintiff refused the remittitur and a new trial was ordered. We affirm.

This is a perplexing case and we were much persuaded by Judge Green’s dissent. However the Judge’s order required either, that the plaintiff accept the remittitur, or a new trial would be granted. As such we feel this cause should be affirmed on the basis of Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977) cert. den. 359 So.2d 1221. As the Court said in Weems :

Applying the LaFleur test to this case, we cannot say the trial court’s order granting appellee a new trial is arbitrary, fanciful, or unreasonable, or that no reasonable man would take the view adopted by the trial court. Accordingly, under the established rules, appellants have failed to demonstrate that the trial judge abused his broad discretion in granting appellee a new trial.

We have read De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339 (Fla.1926) and we concede that it states, as a general principle, that the amount of the excess must clearly appear from the record. Applying such a test to the case at bar, it would appear at first blush to mandate reversal. However De La Vallina also noted:

[2] From a study of the foregoing cases, and many others of similar import, it is at once apparent that from the face of the record the amount of the excess cannot always be worked out with a mathematical precision, nor do we think the rule contemplates this. It is, of course, preferable, if capable of being determined to mathematical exactness, but may be arrived at through any process of reasoning actuated and controlled by the facts in the record and guided by an honest, sincere purpose to do justice to both parties to the cause in the light of these facts. The line of demarkation between the province of the court and that of the jury in this, as in all other mixed questions of law and fact, is often difficult to distinguish; but when the trial court has, in line with the rule here announced, authorized a remittitur, his order should not be disturbed, unless it clearly appears that he abused his authority or violated a controlling provision or principle of law.
[3] It is contended here that there is no proper predicate in the record for the remittitur, and that in imposing it the trial court substituted his judgment for that of the jury. It is well settled that this cannot be done except in cases where it is clear that the jury was influenced by prejudice, bias, or other improper influence, but we do not think this rule applies here, because the court did not indicate what amount he would have given had he been on the jury, but only such amount as he would not feel at liberty to pronounce excessive. This seems to be the practice in most of the appellate courts, and we think it is warranted to the end of saving vexatious, expensive, and prolonged litigation. Florida Ry. & Nav. Co. v. Webster, supra.
[4] Plaintiff in error seeks reversal of an order granting a new trial on condition that the remittitur is not entered. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it. Ruff v. Georgia, S. & F. R. Co., 64 So. 782, 67 Fla. 224; Aberson v. Atlantic Coast Line R. Co., 67 So. 44, 68 Fla. 196; Carney v. Stringfellow, 74 So. 866, 73 Fla. 700.
It is incumbent on plaintiff in error to make it clearly appear that in granting a new trial on condition that the remittitur was not entered the trial court abused the discretion imposed upon him, and that his award was patently excessive. Careful examination of the record does not disclose such abuse of discretion, or that the suggested remittitur was patently excessive, so the judgment below is affirmed. Pensacola Sanitarium v. Wilkins, 67 So. 124, 68 Fla. 447.

We hold this quote to be applicable to the case at bar and hereby adopt it.

AFFIRMED.

ANSTEAD, J., concurs.

GREEN, ROBERT ALEXIS, Jr., Associate Judge, dissents with opinion.

GREEN, ROBERT ALEXIS, Jr., Associate Judge,

dissenting:

I am impressed with much of the wording in Judge MacMillan’s order, particularly where he sets forth that the plaintiff has only suffered minimal residual scarring. However, the evidence submitted to the jury certainly contained competent evidence to the contrary. In requiring the entry of a remittitur to correct an excessive verdict, the rule is, that the amount of the excess must clearly appear from the record. De La Vallina v. De La Vallina, supra. In the case before us, although the judge’s order is detailed, it cannot be gleaned from the record upon what basis the judge considered $165,000.00 to be excessive and he certainly does not explain that particular figure in his Order. In consequence I am reluctantly compelled to conclude that he sat as a seventh juror using the power of veto over the other six. Lasky v. Smith, 239 So.2d 13 (Fla.1970).

I would reverse.


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. SOUTHERN SANITATION SERVICE, INC., a Florida Corporation, and City of Delray Beach, a Municipal Corporation, Appellees.
    No. 77-2039.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied June 7, 1979.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, Miami, for appellant.
    Michael J. Cooper of Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, and Thomas E. Neale of Huebner, Shaw & Bunnell, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

This is an appeal from an order granting appellee’s motion to dismiss for lack of prosecution. The order did not indicate that it was “with prejudice” and as such it constitutes a nonfinal order, appeal-able as an interlocutory appeal pursuant to Fla.R.App.P. (1962) 4.2(a). Reilly v. Fuss, 170 So.2d 475 (Fla. 2d DCA 1964); ef., Southwest Electric Supply v. Banfield, 302 So.2d 810 (Fla. 2d DCA 1974). A motion for rehearing (he>*e a motion for reconsideration) directed to an interlocutory order will not suspend rendition of that order, and thus, has no effect on the time for filing a notice of appeal. Wagner v. Wagner, 268 So.2d 1 (Fla.1972); Southwest Electric Supply, supra.

The order sought to be reviewed herein was rendered on July 28, 1977. The notice of appeal was filed fifty-seven days later. Appellant has therefore failed to invoke this Court’s jurisdiction and this appeal is dismissed sua sponte.

MOORE and BERANEK, JJ., and FRANZA, ARTHUR, J., Associate Judge, concur.


author: OTT, Judge.

text:
    Daniel ORNER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1633.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

We find no error in the revocation of appellant’s probation.

Since the appellant had previously been adjudged insolvent the trial court erred in assessing costs against appellant. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976). The assessment of costs is therefore set aside.

The appellant does not raise any question here or in the trial court as to the validity of the sentence for fifteen years imprisonment. We note, however, that the sentence may be excessive. The charge against him, to which he pled guilty, was burglary of a building owned by Shop & Go, Inc. There is no allegation in the information that this building was a dwelling, that there was a human being in it at the time of the burglary, that appellant made an assault upon any person, or that he was armed or armed himself within the structure. Absent one or more of these elements, burglary is a third degree felony, § 810.02, Fla.Stat. (1975), for which the maximum sentence is five years. § 775.082(3)(d), Fla.Stat. (1975). Unless the information can be deemed amended by the factual basis established at appellant’s plea hearing (a transcript of which was not included in the record on appeal), appellant’s sentence should be reduced to five years. See Shanklin v. State, 369 So.2d 620, (Fla. 2d DCA 1979). Since appellant may raise this point, if valid, by an appropriate Fla.R.Crim.P. 3.850 motion and the trial court may correct an illegal sentence at any time, we do not herewith express any opinion thereon. The judgment of conviction and sentence are therefore affirmed.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: MILLS, Acting Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Celia JENKINS, Appellee.
    No. LL-75.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    Rehearing Denied June 6, 1979.

      Martin S. Page of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    Frank M. Gafford, Lake City, for appel-lee.
   MILLS, Acting Chief Judge.

The issue before us is whether an uninsured motorist carrier is entitled to a set-off of any monies received by its insured from an uninsured/underinsured tortfeasor when the damages sustained by the insured are greater than the sum of the insured’s uninsured motorist limits and the liability insurance limits available to the insured from the tortfeasor’s liability insurance carrier.

State Farm appeals from a final judgment holding that it was not entitled to a set-off of the $10,000 liability insurance limits of the third party tortfeasor against its $20,000 uninsured motorist limits where the insured’s damages were established by a jury at $40,000.

On 29 October 1973, Celia Jenkins was injured in a collision between the car in which she was a passenger and a car driven by Evelyn Berger. Jenkins recovered the $10,000 policy limits of Berger’s liability insurance policy. The driver and owner of the car in which Jenkins was riding were covered by $20,000 of uninsured motorist insurance issued by State Farm. Jenkins brought suit against State Farm to recover the balance of her damages up to the policy limits of the uninsured motorist coverage. Jenkins’ total damages were determined by the jury to be $40,000.

The trial court entered final judgment finding that although Jenkins had recovered the $10,000 policy limits of the tort-feasor, the $20,000 uninsured motorist coverage constituted “excess coverage, and since plaintiff’s damages were $40,000, the defendant is not entitled to any set-off or credit against its policy limits.” Judgment was then entered against State Farm for $25,053, representing the $20,000 uninsured motorist policy limit, $4,500 in attorney’s fees, and $553 in taxable costs. We reverse.

Section 627.727(1), Florida Statutes (1977), provides in pertinent part that uninsured motorist coverage

“shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.”

The basic theory of uninsured motorist coverage is to allow the insured the same recovery which would have been available to him had the tortfeasor been insured to the same extent as the insured himself. Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978).

The statute clearly states that uninsured motorist coverage shall be excess over but shall not duplicate benefits available to an insured under any automobile liability coverages from the owner or operator of the uninsured motorist vehicle. Dewberry v. Auto-Owners Insurance Company, supra.

Here, the $10,000 limit of the tortfeasor’s liability coverage was paid to Jenkins. This sum reduces the $20,000 maximum uninsured motorist coverage available to Jenkins by $10,000. Otherwise, $10,000 of the $20,000 uninsured motorist coverage would be duplicated by the $10,000 benefits paid by the tortfeasor’s automobile liability insurance coverage which is prohibited by Section 627.727(1). Thus, Jenkins is entitled to only $10,000, the excess uninsured motorist benefits.

The case of Government Employees Insurance Company v. Shelly, 347 So.2d 124 (Fla. 4th DCA 1977), which was relied upon by the trial court and by Jenkins, is not applicable to the facts of this case. Shelly did not consider Section 627.727(1) which controls this case and Dewberry obviously overrules Shelly if it was applicable.

We would like to point out that the Dewberry decision was rendered after the trial court entered its final judgment.

We reverse the final judgment and remand to the trial court with instructions to enter judgment for Jenkins in the amount of $15,053 representing $10,000 uninsured motorist coverage, $4,500 attorney’s fees and $553 taxable costs.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Jack Martin SEUSS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-348.
    District Court of Appeal of Florida, First District.
    May 9, 1979.
    Rehearing Denied June 6, 1979.
    William R. Slaughter, II, of Slaughter & Slaughter, Line Oak, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jack Martin Seuss entered a plea of nolo contendere to possession of marijuana in excess of 100 pounds, expressly reserving the right to appeal the trial court’s denial of his motion to suppress.- He urges that he did not freely and voluntarily consent to the search. We agree and reverse.

The record reveals that Seuss drove a pickup truck with a camper top past an agricultural inspection station without stopping. An inspection agent pursued the vehicle, stopped it, and asked permission to look in the back of the vehicle. When Seuss stated that he did not have a key to the back, the agent instructed Seuss that he would be required to return to the inspection station and that he would not be allowed to go anywhere until agents were able to look in the back of the vehicle. After returning to the station, the agent again asked if he could look into the vehicle and Seuss again refused. Then the agent offered Seuss the use of his screwdriver so that Seuss could break into the vehicle so that the agent could inspect it. Seuss refused, stating that he was not willing to break into his new vehicle. Subsequently, another agent summoned to the scene placed Seuss under arrest for failure to stop, at the inspection station. The second agent also asked Seuss to open the back of the truck and Seuss again refused. The agents summoned their supervisor, Garth Nobles, who, upon arrival, asked Seuss if he would open the truck. When Seuss again refused, Nobles stated that he would obtain the authority to inspect the vehicle. At the time this representation was made, he had no probable cause on which to secure a warrant.

Subsequently, Nobles placed a call to the state attorney in order to get a search warrant. While he was placing the call, Seuss offered one of the agents the key to the back of the truck. The agent refused the key and told Seuss that he had to open the truck himself, which Seuss did. No warrant was ever obtained. At the suppression hearing, Nobles did testify that he had sniffed at the back of the truck and smelled what he thought was marijuana. At one point in his testimony he stated that he smelled the marijuana before he placed the call to the state attorney and at another point he testified that he smelled it after he placed the call to the state attorney. In either case, it is uncontradicted that Nobles told Seuss that he could obtain the authority to search prior to his smelling what he thought to be contraband.

Section 570.15(l)(b), Florida Statutes (1977), provides that if the owner or driver refuses to consent to access to a vehicle and there are no exigent circumstances, the inspector must obtain a search warrant before searching the vehicle. Here, Seuss had been detained for more than an hour; he had refused repeated requests that he open the vehicle and allow the agents to inspect; he was informed that he could not leave until the vehicle was searched; and the supervisor represented that if Seuss continued to refuse, he could get authority to search anyway. Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978); Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976). If the agents had probable cause with which to get a warrant, they should have done so rather than detain Seuss for over an hour while attempting to obtain his “consent.”

Under these facts, we find that consent was not freely and voluntarily given and that the motion to suppress the marijuana should have been granted. In light of this result, the other points raised by appellant need not be decided.

REVERSED.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    W. I. STINSON, Jr., Appellant, v. TEELIN REAL ESTATE, INC., Appellee.
    No. LL-199.
    District Court of Appeal of Florida, First District.
    May 9, 1979.
    Betty Owen Stinson, Tallahassee, for appellant.
    Daniel C. Campbell, and Ferrin C. Campbell, Sr., Crestview, for appellee.
   PER CURIAM.

Appellant appeals from a final judgment against him for recovery of a real estate broker’s commission. Appellant contends that the evidence does not support the judgment in that it is not shown that he ever agreed to pay or was made aware that the appellee-broker was claiming a real estate commission from him in connection with the transaction; and alternatively, that in view of the trial judge’s finding that the broker represented both seller and purchaser, there being no evidence of the knowledge and consent of this arrangement by either, the broker is not entitled to commission from either party. We agree that the judgment should be reversed.

In January, 1973, appellant received a form letter from a salesman from the broker’s firm inquiring whether appellant desired to sell certain property he owned in Walton County. The letter included the request: “Please add our commission of 10% to your selling price”. Appellant responded by letter dated February 20, 1973, advising that he was not interested in selling the subject property “at this time”, but if he became interested he would contact the salesman personally. There were no further communications between the appellant and broker until early June, 1973, when an officer of the appellee real estate firm came to appellant’s office and presented to him a sales agreement for the property which had the terms of the sale already completed, and which had been signed by the prospective buyer. Appellant executed the sales agreement, but for reasons which are not material to our decision the sale was not completed. So far as the record discloses the first demand upon appellant for payment of a real estate commission was in early December, 1973, in the form of a letter from appellee’s attorney.

The sales agreement, which was prepared by the broker, contains no reference to payment of a real estate commission. The broker’s salesman had talked with the purchaser long before the contract was prepared and had agreed to try to arrange a purchase of appellee’s one-half interest in the property, and the one-half interest owned by another party. The purchaser testified that he understood the purchase price “quoted” to him by the broker was a “net” figure, which meant he paid no commission. There is no direct evidence of any agreement between appellant and the broker-appellee, either oral or written, for the payment of a commission. When contacted by form letter in January the appellant made known his intentions that he did not desire to employ the broker to sell his property, and his rejection letter of February 20 was a rejection of the invitation by the broker to sell the property for a 10% commission. Thereafter, in June, the broker submitted to appellant a sales agreement which had already been completed and signed by the purchaser, which provided for no payment of commission by either party. While we realize that the record in this case may be somewhat incomplete as to what actually transpired, owing to the death of the principal officer of the real estate firm who handled the transaction, there is no evidence of an express contract for commission between the parties. When the broker tendered the sales agreement to appellant it was the broker’s duty to inform him at that time, by including it in the written agreement or by informing him in some other positive way, that he intended to claim a commission on the sale. Otherwise, the broker’s actions were misleading, the agreement itself was incomplete, and it failed to disclose an important condition that the appellant was entitled to have presented to him for his consideration before he signed the contract. For a case not directly in point, but nevertheless persuasive, see Skinner Mfg. Co. v. Douville, 57 Fla. 180, 49 So. 125 (1909).

We cannot agree with the trial court’s finding that appellant “engaged” the broker, and we tend to view the evidence as insufficient to warrant a finding of an implied agreement. However, we prefer to base our decision on other grounds. If there was a broker-principal relationship it was implied from the conduct of the parties. The final judgment contains the finding that the appellee-broker represented both the appellant-seller, and the purchaser and that appellant was accordingly obligated to pay only one-half of the 10% commission on the sale. We will accept the trial court’s finding and reject appel-lee’s cross-appeal on this point. If the circumstances sufficiently establish an implied agreement between appellant and appellee, they are equally sufficient to establish such an agreement between appellee and the purchaser. Accordingly, we must reverse the judgment because absent agreement between the parties, a broker may not act as agent for both the seller and the purchaser in the same transaction. Violation of this rule calls for a forfeiture of compensation for the broker’s services. 7 Fla.Jur.2d §§ 64, 65, and 66; Carter v. Owens, 58 Fla. 204 (1909), 50 So. 641; and Quinn v. Phipps, 93 Fla. 805 (1927), 113 So. 419, 54 A.L.R. 1173.

Under the circumstances presented by this ease it appears that both seller and purchaser were unwittingly handed an invitation to a lawsuit, and that the interests of neither were well served.

The judgment appealed from is hereby reversed.

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.