author: BASKIN, Judge. FERGUSON, Judge

text:
    David WELLS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1766.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Bennett H. Brummer, Public Defender and Arthur L. Rothenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Eunice T. Martin, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Defendant seeks reversal of his convictions of six counts of robbery and related firearm charges, contending that because his trial was conducted without a determination by the court that he had regained his sanity, prior adjudications of insanity precluded his convictions. At arraignment, the court appointed three psychiatrists to examine defendant Wells when the state advised the court that defendant Wells had previously been found not guilty by reason of insanity. The medical reports, filed the day before trial, indicated that he was competent to stand trial. Defense counsel did not request a ruling concerning defendant’s sanity or competence to stand trial even though it is clear that, when the parties’ attorneys and the judge agree, the trial court may decide the issue of competency on the basis of written reports. Lopez v. State, 405 So.2d 484 (Fla. 3d DCA 1981); see McKnight v. State, 319 So.2d 647 (Fla. 3d DCA 1975). At defendant’s request and with the consent of the state, the court conducted a non-jury trial after the court inquired whether defense counsel was satisfied the defendant understood the consequences of the waiver of a jury. Trial counsel indicated that Wells understood. Although defendant Wells had filed a Notice of Intent to Rely on the Defense of Not Guilty by Reason of Insanity, he did not call the psychiatrists listed in his pleadings as witnesses.

Defense counsel made no objection to the imposition of sentence. Seven days after sentencing, defense counsel filed a motion for judgment of acquittal. At the hearing on the motion, trial counsel argued that the only question was defendant’s competence at the time of trial. For the first time, defendant presented evidence that he had been adjudicated incompetent in two prior cases. He reasserted his earlier motion, arguing that the “state had failed to carry its presumptions and failed to prove a pri-ma facie case.”

It appears to us that defense counsel’s strategy consisted of utilizing the state’s procedural inadequacies without posing objections. While this method may be successful at times, it must fail when counsel bears the burden of notifying the court through timely objection. Neither defense counsel’s failure to challenge Wells’ competence to stand trial nor his statement that defendant Wells was competent to waive trial by jury can be ignored. The motion for judgment of acquittal, made at the close of the state’s case and renewed at the close of the defendant’s case without supporting documents, was insufficient to preserve error. Furthermore, a “bare bones motion,” which fails to state its grounds, does not raise every possible claimed insufficiency. Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980); see also V. J. T. v. State, 390 So.2d 1212 (Fla. 3d DCA 1980).

Even if defendant’s position were correct, however, the hearing on the question of competency conducted by the court three weeks after sentencing and the opinions of the three court-appointed psychiatrists that defendant was sane, both at the time of trial and when the offenses were committed, renders unnecessary any further hearing directed to that issue. Perkins v. Mayo, 92 So.2d 641 (Fla.1957).

For these reasons, we affirm the convictions and sentences.

FERGUSON, Judge

(dissenting).

As a result of a prior adjudication of insanity defendant was presumed to remain in such condition until the state had shown that his sanity had returned. Horace v. R. O. Culver, 111 So.2d 670 (Fla.1959); Wells v. State, 98 So.2d 795 (Fla.1957); Corbin v. State, 129 Fla. 421, 176 So. 435 (1937). That presumption of continued insanity negated criminal intent, State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978), an essential element of robbery. Bell v. State, 394 So.2d 979 (Fla.1981). Where the intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be considered on the question of guilt. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.2d 288 (1952).

This was a bifurcated proceeding. In the first hearing the court determined that the defendant had committed the offenses. In the subsequent hearing the court determined that the defendant was competent at the first proceeding and that he was capable of forming the requisite intent. This is essentially the procedure, legislatively created, which was invalidated by a unanimous supreme court in State ex rel. Boyd v. Green, supra, though the statute had application only to trial by jury. I see no reason why the rationale should not apply to a trial without a jury.

The state argues, and the majority agrees, that the nunc pro tunc determination of defendant’s sanity and competence was sufficient to remedy any possible error in the court’s failure to hold a pretrial competency hearing. There is considerable authority which approves, tacitly or directly, a prompt after-conviction determination of competency to stand trial. In Drope v. Missouri, 420 U.S. 162, 43 L.Ed.2d 103, 95 S.Ct. 896 (1975), the United States Supreme Court addressed the issue whether a defendant’s due process rights would be adequately protected by ordering a remand for a psychiatric examination in an effort to establish whether the defendant was in fact competent to stand trial six and one-half years earlier. The court held that “given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, (cited cases), we cannot conclude that such a procedure would be adequate here.” See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (six-year period between time of trial and Supreme Court review); Dusky v. U. S., 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (over a one-year lapse between time of trial and review by the Supreme Court). In Williams v. State, 396 So.2d 267 (Fla. 3d DCA 1981) this court approved an after-conviction nunc pro tunc hearing to determine competency which was conducted three weeks after judgment and sentencing.

But none of the above cases approving post-conviction competency hearings are controlling because this is not simply a competency-to-stand-trial case. In this case the accused came on for trial presumptively insane. Though the distinction is often blurred I think it is significant. That an accused was not competent to stand trial places no added burden on the state to prove each element of the offense. An accused who was not sane at the time of the offense, under the present state of the law, cannot be guilty of an offense requiring specific intent because the requisite element of intent is absent. In the absence of proof to overcome the presumption of insanity the defendant was entitled to an acquittal by reason of insanity, and following well-established precedent, this court would have so held — that is before today. The majority’s reliance on Perkins v. Mayo is misplaced. Consistent with this dissent Perkins holds that when one is adjudicated to be insane, the presumption is that he continues in that state and cannot be tried, convicted and sentenced until it is shown that sanity has returned.

I do not here question the wisdom of the majority in the new law which is established by this case. I dissent because until the law is changed by the legislature or the supreme court we are bound by supreme court precedent. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The other points discussed in the majority opinion cannot salvage what was otherwise a faulty prosecution. An incompetent or insane defendant cannot waive his right to a hearing by failing to object to the physicians’ reports. Alexander v. State, 380 So.2d 1188 (Fla. 5th DCA 1980) is the most recent of a line of cases which dispel this notion. At issue in Alexander was whether a person who had been adjudicated incompetent and had never been adjudicated competent could waive a competency hearing. There the defendant had been convicted for larceny of a dwelling with a knife. Unknown to the trial court and defense counsel, the defendant had been adjudged incompetent without a subsequent finding that his competency was restored. However, prior to trial, the court ordered examinations by two psychiatrists after the defendant complained of hearing voices all day and night. The doctors reported to the court that the defendant was competent to stand trial. After becoming aware of the psychiatric findings as contained in the reports, defense counsel stated “... I do not choose to go ahead with the evidentiary hearing ... we will proceed to trial.” Upon learning later of the defendant’s prior adjudication of insanity, defense counsel filed a motion for post-conviction relief on the grounds that the defendant was not competent to stand trial. The trial court denied the motion because it found that the defendant, through counsel, had waived his right to an evidentiary hearing and therefore was precluded from asserting that his rights had been violated. The appellate court held that “a defendant who is presumptively incompetent is not sui juris until so declared by the court, so he cannot waive a competency hearing.” In the present case, the trial court’s failure-to afford the defendant a hearing after considering the psychiatric reports was error. The legal status of a defendant cannot be adjudicated from incompetent to competent without a hearing. Alexander v. State; Parks v. State, 290 So.2d 562 (Fla. 4th DCA 1974).

I am also unable to agree with my colleagues’ application of Lopez v. State, 405 So.2d 484 (Fla. 3d DCA 1981) and McKnight v. State, 319 So.2d 647 (Fla. 3d DCA 1975) to the instant case. It is undisputed here that there was no agreement between the court and the parties that the issue of insanity could be tried on the written medical reports, therefore, Lopez and McKnight are inapposite.

The majority suggests that the state might have been ambushed by the defense’s do-nothing tactic. Again I disagree. It was the state, weeks before commencement of the trial, which first brought to the court’s attention the defendant’s psychiatric history:

PROSECUTOR: Excuse me, Judge. As Mr. Wells has been before the system before and I believe has already been found not guilty by reason of insanity, we would request evaluations at this time.
THE COURT: Really?
PROSECUTOR: Yes, Judge. He has a rather lengthy history.

The next day counsel for the defendant filed a Notice of Intent to Rely upon the Defense of Insanity. The defendant’s “utilizing the state’s procedural inadequacies” consisted of nothing more than silently waiting for the state to carry its burden— the right of a defendant in any criminal prosecution.

      . In Parks the defendant had previously been adjudged incompetent. Thereafter, without a hearing, the defendant was deemed competent based on an ex parte letter from the Florida State Hospital. He was tried and convicted. In remanding for a hearing the court held “the question of a defendant’s sanity is a legal question and not a medical question, although based upon other evidence, and it must be ‘legally decided’.”


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    In the Interest of, T. C., a child.
    No. 81-1469.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Randolph Ferguson, Miami, for appellant.
    Jim Smith, Atty. Gen., and Gerald B. Curington and James A. Peters and William Hall, Asst. Attys. Gen., and Dean C. Kowal-chyk, Certified Legal Intern, for appellee.
    Before SCHWARTZ and NESBITT, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

The natural mother appeals an order permanently committing her daughter to the Department of Health and Rehabilitative Services (HRS) for purpose? of adoption.

The mother contends that the evidence as to the grounds warranting a permanent commitment order; to wit: (a) abandonment; (b) neglect; or (c) abuse, as those terms are defined in Section 39.01, Florida Statutes (1979), was not sufficient, under the clear and convincing standard, to support the order appealed from. In the Interest of D. A. H., 390 So.2d 379 (Fla. 5th DCA 1980); In the Interest of C. K. G., 365 So.2d 424 (Fla. 2d DCA 1978). We agree.

There is no suggestion advanced here that the mother is guilty of either neglect or abuse. This leaves only the ground of abandonment as an arguable basis for the order of permanent commitment. It is true that this three-and-a-half-year-old child has spent only fifteen weeks of her entire life in the custody of her natural mother. The mother has left the child with HRS on three separate occasions due to her financial inability to support the child. Although the mother is capable of functioning at an intellectual level in the upper two percentile of the population, psychiatric testimony revealed that her emotional immaturity and instability have prevented her from developing sufficient skills and maintaining steady or permanent employment. She earns approximately $7,000 a year, receives no child support from T. C.’s father, and has the additional responsibility of supporting a son fathered by another long-departed parent.

Each time the child has been placed in foster care, the mother has diligently visited the child at the times allotted. The child has a birth-related brain injury which affects her speech center. Otherwise, she is a normal, healthy, adoptable child. It is undeniable that the foster parents have provided her a stable atmosphere where she is developing favorably. The mother’s visits apparently upset the child and exacerbate her disability. It is understandable that the social workers at HRS are frustrated by the mother’s inability to support the child despite their assistance. Consequently, had this been a contest between natural parents competing for child custody, there is abundant evidence from the foster parents, psychiatrists, and social workers that the trial court’s determination would have been correct as being manifestly in the child’s best interest.

Nonetheless, with regard to the petition and order under review, neglect, abuse, or abandonment could be the only grounds for terminating the natural mother’s rights to the child. § 39.41, Fla.Stat. (1979); State v. M. T. S., 408 So.2d 662 (Fla. 3d DCA 1982). Therefore, absent clear and convincing proof of abandonment, the finding of the trial court that an order of permanent commitment would be in the child’s best interest is immaterial. In the Interest of D. A. H., supra.

From a sociological and common sense standpoint, the trial court’s order is correct. Nonetheless, the Department of Health and Rehabilitative Services, as well as the court, is bound to follow the legislative direction and procedural bases prescribed for entry of orders of permanent commitment. State v. M. T. S., supra.

For the foregoing reasons, the order of permanent commitment is reversed.

Reversed.

      . The legislature has by the adoption of Section 39.41(l)(f) 1. d., Florida Statutes (1980 Supp.), made noncompliance with the performance agreement established by Section 409.168, Florida Statutes (1980 Supp.), a new and additional ground for the termination of parental rights. However, the petition for permanent commitment of T. C. was filed well within the statutory grace period for preparation of the new performance agreements, Section 409.-168(3)(a)5., Florida Statutes (1980 Supp.), and this cause proceeded to determination without such an agreement.


author: PER CURIAM. FERGUSON, Judge

text:
    James O. ANDRADE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1491.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt and Penny H. Hershoff, Asst. Attys. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Yu, 400 So.2d 762 (Fla.1981); Sands v. State, 414 So.2d 611 (Fla. 3d DCA 1982); Jones v. State, 412 So.2d 38, 39 (Fla. 3d DCA 1982); Cavalluzzi v. State, 409 So.2d 1108 (Fla. 3d DCA 1982); Vetter v. State, 395 So.2d 1199 (Fla. 3d DCA 1981); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); United States v. Fry, 622 F.2d 1218 (5th Cir. 1980).

FERGUSON, Judge

(dissenting).

I would reverse. See dissent in Laurenzano v. State, 402 So.2d 1304 (Fla. 3d DCA 1981).


author: PER CURIAM.

text:
    Don TILZER, Fern J. Tilzer, Jeri J. Tilzer and Barbara Tilzer, Individually and as Trustees, Appellants, v. Anna TILZER, Appellee.
    No. 81-1882.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Whitman, Wolfe & Gross and John W. Salmon, Miami, for appellants.
    Joe N. Unger, Max M. Hagen, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

The final judgment is affirmed with regard to the finding of undue influence. See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), aff’d after remand, 289 So.2d 410 (Fla. 4th DCA 1974); Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927); Lee v. Patton, 359 So.2d 519 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979).

The remaining points raised on appeal lack merit.

Affirmed.


text:
    Donny Ray CONEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2148.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Smith & Snyder, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

We affirm the defendant’s conviction for resisting an officer in the lawful exercise of his legal duty upon a holding that under Section 843.01, Florida Statutes (1981), a • person may be convicted by showing an offer to do violence, see Scullock v. State, 377 So.2d 682 (Fla.1979), and the defendant’s acquittal on a separate count of aggravated battery upon the officer is not legally inconsistent with such a conviction. Courson v. State, 414 So.2d 207 (Fla.3d DCA 1982).

Affirmed.


text:
    George ROBINSON, individually and as Personal Representative of the Estate of Jean Robinson, Deceased, Appellant, v. ALLSTATE INSURANCE COMPANY, Morris Beck, Eugene Willard, Joyce Simmons, Charles Kreiker, Eutychus Rolle and Industrial Fire and Casualty Insurance Company, Appellees.
    No. 81-2183.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Alan Goldfarb, Miami, for appellant.
    Adams, Ward, Hunter, Angones & Adams and Steven Hunter, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The trial court dismissed the complaint when the plaintiff failed to appear for the taking of his second deposition. We find that dismissal was entirely too drastic a remedy to impose upon the plaintiff where the plaintiff allegedly had difficulty getting to the United States from Jamaica, the deposition was set after the cut-off date for completing discovery, and it was only eleven days prior to trial. See Santuoso v. McGrath & Associates, 385 So.2d 112 (Fla. 3d DCA 1980); Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980).

Reversed and remanded.


text:
    Victor STEPHEN d/b/a Victoria Line, Appellant, v. L. P. EVANS MOTORS OF WEST PALM BEACH, INC. and Proprietors Insurance Company, Appellees.
    No. 81-2264.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.

      Donald F. Geffner, Miami, for appellant.
    Daniel Mones and Frank M. Marks, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

Under the guise of purchasing a used Mercedes Benz from L. P. Evans Motors of West Palm Beach (Evans), two thieves were given a test drive at which time they overpowered the sales representative and stole the vehicle. Later, a third party shipped the same vehicle to Haiti aboard the defendant’s shipping line. Evans, joined by his insurer, commenced the present action on the theory that the defendant’s failure to obtain a certificate of right of possession as required by Section 319.36, Florida Statutes (1979) imposed liability upon the shipping line for the loss of the vehicle. From an adverse summary judgment, the shipping line appeals. We affirm.

Unquestionably, Section 319.36, supra, imposed a duty upon the defendant to obtain a certificate of possession of title. Because we find that the statute was enacted to protect owners of vehicles from the loss of their goods, we hold that it was negligence per se not to abide by the statute. See deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973). We reject the defendant’s argument that its activities were only a remote cause of the plaintiff’s damages. To the contrary, we find that the defendant’s acts directly and in natural and continuous sequence produced the damage incurred by the plaintiff. See Florida Standard Jury Instruction (Civil) 5.1(a). The duty imposed on the defendant by Section 319.36, supra, presupposes a theft of the vehicle prior to its presentment at the shipping line. It cannot be argued then, that that very theft precluded the defendant’s liability.

Consequently, we find that the summary judgment must be affirmed.

      . We find that appellant’s contention that there was an issue of fact as to the identity of the vehicle because of an alleged discrepancy in the serial numbers to be without merit.

      . The statute as originally enacted by Chapter 70-289, Section 1, Laws of Florida, clearly expressed this result. It provided:
      (1) The legislature of Florida hereby finds that larceny of motor vehicles has become a widespread criminal activity in this state, such activity being perpetrated not only by individuals but also by organized groups who consider theft of motor vehicles to be a lucrative everday business. The enforcement of larceny statutes and recovery of stolen motor vehicles has been rendered a monumental task because of the ease with which such vehicles may be shipped out of the state to places where no certificate of title is required for their sale or transfer. The legislature declares that it is in the strong public interest of this state that its police power be exercised in order to protect motor vehicle owners and to aid law enforcement officers by rendering it extremely difficult for a person to transport a stolen motor vehicle out of this state via ship.


text:
    Jose Miguel GONZALEZ, Appellant, v. Juan Carlos GARCIA, Appellee.
    No. 82-12.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellant.
    Hershkowitz & Kirschner, Miami, for ap-pellee.
    Before BARKDULL, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Relying on Chapman v. Dillon, 404 So.2d 354 (Fla. 5th DCA 1981) the trial court refused to give a jury instruction on the Florida “no fault” threshold. Although the trial court may have been within its discretion at the time of the ruling, after the Supreme Court of Florida quashed the above cited opinion in Chapman v. Dillon, 415 So.2d 12 (Fla.1982), the denial of the instruction requested was error; therefore, the final judgment under review is reversed and remanded to the trial court for a new trial on all issues. Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Zobac v. Southeastern Hospital District of Palm Beach County, 382 So.2d 829 (Fla. 4th DCA 1980); Weissman v. State Farm Mutual Automobile Insurance Company, 349 So.2d 749 (Fla. 3d DCA 1977).

Reversed and remanded with directions.


author: SCHWARTZ, Judge. DANIEL S. PEARSON, Judge, FERGUSON, Judge (specially

text:
    James WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-77.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

We again reject the claim that a sentence involving a longer period of imprisonment which is imposed as a result of a motion filed by the defendant to correct the original sentence under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) runs afoul of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Willis v. State, 413 So.2d 1290 (Fla. 3d DCA 1982).

It may also be observed that seeking Vil-/ery-related relief is always a matter of voluntary choice, with the possible consequences of that action fully and previously known to the movant. In this case, moreover, the trial court both specifically informed Williams what the corrected sentence would be and afforded him the opportunity, which he rejected, to withdraw the Villery motion if he wished to do so. Thus, both as a general rule and in this specific instance, an appellate consideration of the Pearce claim would seem to be barred by the doctrine of invited error. 3 Fla.Jur.2d Appellate Review § 294 (1978).

Affirmed.

DANIEL S. PEARSON, Judge,

specially concurring.

I concurred in Willis v. State only because the post- Villery change of sentence was from five years probation with a special condition of three years incarceration to five years imprisonment; I concur here because the change is from fifteen years probation with a special condition of eight years incarceration to twelve years incarceration. In both cases, it can be fairly assumed (in the absence of some contrary showing which was neither made in Willis nor here) that the correction will not increase the defendant's actual time spent in prison and at most exchanges probation for parole.

But, as this court noted in Herring v. State, 411 So.2d 966, 970 n.11 (Fla. 3d DCA 1982):

“The genesis of Villery was the complaint that lengthy imprisonment as a condition of probation denied the prisoner parole consideration. The court in Villery undoubtedly assumed that a change from probation to an equal amount of incarceration would not result in any actual additional incarceration for the prisoner, who would theoretically be released on parole no later than he would be released on probation. However, where that is not the case, and a prisoner is ‘punished’ for exercising rights granted by Villery, a due process issue under North Carolina v. Pearce, supra, is presented. The imposition of a penalty upon a defendant for successfully pursuing a nonconstitutional rather than constitutional right is no less a violation of due process. North Carolina v. Pearce, supra, 395 U.S. at 724, 89 S.Ct. at 2080.”

Thus, I think the majority goes too far in laying down an apparent ironclad rule that a change of sentence made because of Villery can never violate North Carolina v. Pearce. Surely, it is not difficult to envision a situation in which a trial court places a defendant on fifteen years probation with a special condition that he be incarcerated for eighteen months, and upon the defendant’s motion to correct the sentence under Villery, imposes a fifteen-year period of incarceration. I believe that such a demonstrably more severe sentence would present a due process issue under North Carolina v. Pearce, requiring the trial court to affirmatively show that the increase was occasioned by non-vindictive reasons.

Finally, the majority’s view that the exercise of the right to correct a Villery violation where the defendant is forewarned what the new sentence will be is “invited error” itself flies in the face of North Caro lina v. Pearce, which precludes the imposition of a penalty upon a defendant who pursues a right granted him by law. The Supreme Court of Florida in Villery declared certain sentences invalid. It did not license courts to act vindictively if a defendant chooses to pursue the right which Villery grants. Even as a court is without power to put a price on an appeal, North Carolina v. Pearce, supra, 395 U.S. at 724, 89 S.Ct. at 2080, it is without power to put a price on the exercise of the right to have an illegal sentence set aside. If a defendant’s choice is fettered by a court’s announcement that the sentence will be more severe, he cannot be accused of inviting error simply because he chooses to challenge the right of the court to impose the higher sentence. Since, as I have said, no increased sentence violative of North Carolina v. Pearce appears in this case, I concur in the result.

FERGUSON, Judge (specially

concurring).

I concur in the results. The theory of “invited error” has no application here. A trial court’s resentence to correct an illegal sentence is either correct or it is fundamentally incorrect. In this case the resentence simply does not violate North Carolina v. Pearce.


text:
    C. C., a juvenile, Petitioner, v. The Honorable Ralph B. FERGUSON, Jr., Judge of the Eleventh Judicial Circuit in and for Dade County, Juvenile Division, Respondent.
    No. 82-875.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for respondent.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

After petitioner was acquitted of a charge of grand theft, the state filed a new petition for delinquency based on facts arising out of the same incident as those involved in the charge for which petitioner was acquitted.

The second petition was more than 45 days after petitioner was arrested for the events which led to the first charge.

The trial court lacks jurisdiction to entertain the second petition, therefore, the petitioner is entitled to a writ of prohibition, absolute. Thomas v. State, 374 So.2d 508 (Fla.1979); T. R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978).

It is assumed that it will not be necessary to issue the writ in fact and that the respondent will discharge the petitioner upon receipt of this opinion and decision.


author: BASKIN, Judge.

text:
    Catherine JOHNSON, Petitioner, v. The Honorable Arthur I. SNYDER, Judge of the Circuit Court of the Eleventh Judicial Circuit, Respondent.
    No. 82-1025.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Pollack, Komorowski & Headley, John Li-pinski, Miami, for petitioner.
    Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., for respondent.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for Catherine Johnson as amicus curiae.
    Before BARKDULL, NESBITT and BASKIN, JJ.

       Judge Barkdull participated in the decision in this case but did not hear oral argument.

   BASKIN, Judge.

During the pendency of proceedings on charges of first-degree murder, the trial court declared defendant Catherine Johnson insolvent. The court ruled that, although she met the criteria for appointment of the public defender, defendant Johnson was not entitled to discovery costs because her family had obtained private counsel to represent her. Defendant Johnson filed a petition for writ of mandamus or common law certiorari asking this court to review the trial court’s ruling.

Treating her petition as one seeking a writ of certiorari, Robbins v. Pfeiffer, 407 So.2d 1016 (Fla. 5th DCA 1981); Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980); see Florida Rule of Appellate Procedure 9.040(c), we hold that the trial court departed from essential requirements of law. We therefore grant the writ.

Florida Rule of Criminal Procedure 3.111(b)(4) states:

“Indigent” as used herein shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himself or his family; “partially indigent” as used herein shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to himself or his family, (emphasis added).

Florida Rule of Criminal Procedure 3.220(k) provides:

Costs of Indigents. After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the county.

Rules of procedure and related cases contradict respondent’s contention that an insolvent defendant must accept the services of the public defender in order to obtain reasonable costs for discovery. Similar questions have been decided adversely to respondent’s assertions. For example, appellate costs have been provided for insolvent defendants regardless of the fact that friends or relatives have paid related costs, United States ex rel. Reis v. Leppig, 256 F.Supp. 881 (1966), aff’d sub nom. Buchanan v. United States ex rel. Reis, 379 F.2d 612 (5th Cir. 1967); Rastralli v. State, 76 So.2d 270 (Fla.1954); Lawrence v. State, 76 So.2d 271 (Fla.1954); or that a defendant has no remaining funds, Arline v. State, 277 So.2d 791 (Fla. 1st DCA 1973); see also Baker v. State, 42 So.2d 768 (Fla.1949).

Respondent’s contentions have been rejected in other jurisdictions as well: e.g., People v. Worthy, 109 Cal.App.3d 514, 167 Cal.Rptr. 402 (1980) (experts); Anderson v. Justice Court of San Benito County, 99 Cal.App.3d 398,160 Cal.Rptr. 274 (1979) (investigators and experts); Puett v. Superior Court, 96 Cal.App.3d 936, 158 Cal.Rptr. 266 (1979) (necessary investigative services); English v. Missildine, 311 N.W.2d 292 (Iowa 1981) (investigative services); see also Note, Right to Aid in Addition to Counsel for Indigent Criminal Defendants, 47 Minn.L. Rev. 1054 (1963). Defendant Johnson’s needs fall within the clear provisions of the rules and case law requiring the trial court to allow reasonable discovery costs. For these reasons, we quash the order and remand the cause for a determination as to the amount of reasonable discovery costs to be granted to defendant Johnson.

Writ granted; order quashed; remanded with directions.


text:
    Wilson SAINTIL, Petitioner, v. The Honorable Arthur I. SNYDER, Judge of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 82-1026.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Brian W. Pariser, Miami, for petitioner.
    Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for respondent.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, as amicus curiae.
    Before BARKDULL and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

As in Johnson v. Snyder, 417 So.2d 783 (Fla. 3d DCA 1982), we hold that the fact that an indigent defendant is represented by a private attorney retained by his family or friends rather than the public defender or other counsel appointed by the court provides no basis for departing from the requirements that the county pay the reasonable costs of defense. Sections 939.07, 914.06, 914.11, Florida Statutes (1981); Fla.R.Crim.P. 3.220(k). Accordingly, the petition for mandamus is granted and the respondent judge is ordered to determine after hearing whether the petitioner is in fact indigent and, if so, to order that such costs be borne and paid by Dade County.


text:
    Victor JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1467.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Victor Jones, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


author: COWART, Judge.

text:
    MYSTERY FUN HOUSE, INC., David A. Siegel and Jack McElyea, Appellants/Cross-Appellees, v. MAGIC WORLD, INC., and Christopher Crutcher, et al., Appellees/Cross-Appellants.
    No. 81-394.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      William B. Mesmer, Orlando, for appellants/cross-appellees.
    Aldo Icardi, P. A., Winter Park, for ap-pellees/cross-appellants.
   COWART, Judge.

Cross-appellant Magic World was a lessee under a written lease containing a provision for reasonable attorney’s fees to either party prevailing in an action to enforce any terms of the lease. Magic World sued the lessor, cross-appellee Mystery Fun House, for damages for constructive eviction and prevailed. The trial judge entered final judgment on the jury verdict in favor of Magic World but declined to allow attorney’s fees. Magic World seeks review of this point. While there is a legal question as to whether an action for constructive eviction is an action “to enforce” the terms of a lease, that point is not dispositive. The trial court was correct in denying Magic World’s motion for attorney’s fees because attorney’s fees were an element of damages under the contract which should have been considered and awarded by the jury. As was stated in Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2d DCA 1976),

In a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury.
Id. at 1194.

See also Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977), cert. denied, 362 So.2d 1051 (Fla.1978); Riess v. Goldman, 196 So.2d 184 (Fla. 3d DCA 1967); Ronlee, Inc. v. P. M. Walker Co., 129 So.2d 175 (Fla. 3d DCA 1961). Since Magic World did not present any evidence for the jury as to a reasonable attorney’s fee and did not request an instruction that the jury consider an attorney’s fee as an element of damages, Magic World waived that issue. Where a jury fails to allow attorney’s fees, there is no authority for the trial judge to assess attorney’s fees over and above the jury verdict. Commodore Plaza at Century 21 Condominium Association, Inc. Therefore the trial court did not err in denying the post-trial motion for attorney’s fees.

Interestingly, consolidated for trial with the constructive eviction action was an action in which cross-appellant Christopher Crutcher recovered compensatory damages against cross-appellees Siegel and McElyea for assault and battery. On this appeal, Crutcher claims that the trial judge erred in directing a verdict for Siegel and McElyea on the issue of punitive damages. We agree. All other Florida district courts of appeal have held that evidence of an intentional assault and battery without legal justification, as a matter of law, is sufficient evidence of malice to justify submitting a claim for punitive damages to the jury. Therefore it was error for the trial court to direct a verdict against Crutcher on the issue of punitive damages and this cause is reversed as to that matter and remanded for trial on that issue alone.

AFFIRMED in part; REVERSED in part.

ORFINGER, C. J., and COBB, J., concur.

      . See, e.g., Parsons v. Weinstein Enterprises, Inc., 387 So.2d 1044 (Fla. 3d DCA 1980); Ford Motor Credit Co. v. Johns, 269 So.2d 54 (Fla. 1st DCA 1972); Joab, Inc. v. Thrall, 245 So.2d 291 (Fla. 3d DCA 1971); Holland v. Glass, 213 So.2d 320 (Fla. 4th DCA 1968); Wrains v. Rose, 175 So.2d 75 (Fla. 2d DCA 1965); Bryson v. Swank, 166 So.2d 833 (Fla. 3d DCA 1964), cert. denied, 172 So.2d 596 (Fla.1965). These cases are to be distinguished from Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936), which involved the apprehension by a store of a suspected shoplifter and therefore the resulting assault and battery may have had some “legal justification.” However, this is not to imply that no assault on suspected shoplifters can support an award for punitive damages. See, e.g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) (punitive damages allowed where suspected shoplifter was accosted by security guard).


author: ORFINGER, Chief Judge.

text:
    Walter L. BURRIS, Individually, Appellant, v. JACOBSON, INC., a Michigan corporation, Appellee.
    No. 81-585.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    A. Guy Neff of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Bryan C. Hugo, Longwood, for appellee.
   ORFINGER, Chief Judge.

Appellant Burris appeals the entry of a final summary judgment against him in an action brought on a charge account, contending that an issue of fact existed as to his individual liability on that account. We agree and reverse.

The forepart of the application for the charge account shows the applicant to be Oak Tree Homes. The end of the document is signed by Walter L. Burris, with no indication that it is signed other than as an individual. The record discloses a previous 30-day charge account with appellee in the name of Oak Tree Homes, Inc., and the book transfer of the balance existing in that account to the account in question, an extended pay account payable at $800.00 per month.

Burris affirmatively pleaded that he signed the application as an agent for Oak Tree Homes, Inc. Both parties moved for summary judgment. The trial court denied Burris’ motion, finding that “[tjhere exists a genuine issue of material fact on the question of individual liability of Burris upon examination of his signature as it exists on the open account agreement ... . ” However, the trial court then granted Jacobson’s motion for summary judgment on the same issue, finding no ambiguity in the application for the charge account.

We agree that there was an issue of material fact created by the charge account application because it is ambiguous, and the parol testimony considered by the court in the form of affidavits of interested witnesses only served to emphasize the conflicting inferences, Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976). Under these circumstances, a summary judgment is improper. See Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla. 2d DCA 1979).

Since the cause must be returned to the lower court for trial, we should observe that the court relied on section 673.403(2), Florida Statutes (1981), as support for holding Burris individually liable. That statute refers to “instruments,” which are defined in section 673.102(l)(e) as “negotiable instruments.” The application for a charge account is not a negotiable instrument, so the statute does not apply here.

The summary final judgment against appellant Burris is reversed, and the cause is remanded for trial.

REVERSED and REMANDED.

DAUKSCH and COBB, JJ., concur.

      . Jacobson’s filed suit against Oak Tree Homes, Inc., and against Burris, individually, for the same account and the same balance due, and recovered judgment against both. Oak Tree Homes, Inc., did not appeal the judgment. Burris contends for the first time on appeal, that both the principal and the agent cannot be held responsible for the same debt, relying on Winter v. International Motel Brokers, Inc., 388 So.2d 232 (Fla. 5th DCA 1980). This issue has not been preserved for appellate review, and consequently we do not address it.

      . Nevertheless, cases interpreting that statute point to the issue created by such ambiguities and to the admissibility of parol evidence to help clear up such ambiguities, and thus are helpful here. E.g., see Havatampa Corp. v. Walton Drug Co., Inc., 354 So.2d 1235 (Fla. 2d DCA 1978).


author: PER CURIAM. COWART, Judge,

text:
    STATE of Florida, Appellant, v. Jessie James JONES, Gregory Stubbs, Joseph Chester and Damon Richardson, Appellees.
    No. 81-661.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
    Anthony Paul Mario, Jr., of Mario & Green, Cocoa, for appellees.
   PER CURIAM.

At approximately 10:30 P.M. on Saturday night, January 24,1981, a BOLO report was issued concerning an armed robbery of Mann’s Jiffy Pood Store, a convenience food store on South A1A in Melbourne Beach, Florida. The BOLO stated that two blacks on foot had robbed the store and gave a general description of the men and their clothing. Three Indialantic policemen heard the report and concluded that there were only two reasonable ways of leaving the beachside community: one of the ways was five miles from the site of the robbery, the other was twenty miles. The officers also presumed that the suspects needed a car in order to successfully flee the island community. The police headed for a key intersection located near the closest route for any robbers to leave the island community.

At that point, the police saw a car containing four blacks pass by that intersection. The intersection was two to three miles away from the scene of the robbery and the car was spotted approximately two to three minutes after the BOLO report. The defendant’s car was headed north away from the Jiffy Market. The car made a sharp left turn, in which no signal was used, with the wheels screeching. The vehicle was travelling approximately five to ten miles per hour above the speed limit, and its speed fluctuated throughout the ensuing chase, occasionally dipping below the speed limit.

The officers followed the car in an unmarked police car, staying approximately two to three car lengths behind. After seeing the driver of the car suspiciously look frequently in his rearview mirror, and observing three of the passengers drop down out of sight, the police stopped the vehicle. The officers testified that they knew there was only one black family living in the island community, and that the occupants of the car were not members of that family. They also testified that it was very unusual to see any blacks in the community on a weekend night. The only blacks normally seen in the community were there only in the daytime on construction jobs. When the officers stopped the car, they saw a sawed-off shotgun on the floor of the vehicle, and discovered money taken from the Jiffy store in a brown bag. Shortly thereafter, the victim of the robbery at the Jiffy store was brought to the scene and made a positive identification of two of the defendants as the men who had robbed her some half hour before.

At a subsequent hearing on a motion to suppress all tangible evidence obtained as a result of the stop, defense counsel argued that there were insufficient facts to constitute a founded suspicion that the appellees had committed the robbery and argued that they had been stopped merely as a result of the officers’ “hunch” and because of the fact that they were black. Based upon this argument, the trial court granted appellees’ motion to suppress and the state has timely filed this appeal.

We believe that the dispositive case in regard to this appeal is the recent United States Supreme Court case of United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In the majority opinion in Cortez, Chief Justice Burger wrote:

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); United States v. Brignoni-Ponee, 422 U.S., supra, at 878, 95 S.Ct., at 2578; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 541 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra, 392 U.S., at 16-19, 88 S.Ct. at 1877-1879.
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, supra, 443 U.S., at 51, 99 S.Ct., at 2640; United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581. The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said, “[tjhis demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Id., 392 U.S., at 21, n. 18, 88 S.Ct., at 1880, n. 18 (emphasis added). See also, Brown v. Texas, supra, at 661-663, 99 S.Ct. at 1400-1401; United States v. Brignoni-Ponce, 422 U.S., at 884, 95 S.Ct. at 2581. (Emphasis added.)

101 S.Ct. at 694-95. In our view, the police in the instant situation formulated common sense conclusions, based upon the whole picture and a reasonable suspicion that the occupants of the automobile stopped had engaged in wrongdoing. Based upon that whole picture, the detaining officers had a particularized and objective basis for suspecting these particular persons of criminal activity, and the trial court was in error in granting the motion to suppress. Accordingly, that ruling is reversed and this case remanded for trial.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

This case involves the sufficiency of the circumstances to constitute reasonable grounds (probable cause) to believe, or to create a reasonable or founded suspicion, that appellees had committed a crime, justifying municipal police officers pursuing ap-pellees outside their geographic jurisdiction, stopping their vehicle and detaining them.

The night store clerk at Mann’s Jiffy Food Store, a convenience food store on south A1A in Melbourne Beach, Florida, was robbed at gunpoint at about 10:30 p. m. on a Saturday night by two black males who fled on foot. The clerk immediately called the police, who announced that fact over the police radio, requesting officers to be on the lookout for the robbers.

Sergeant Philip B. Williams, a police officer in the City of Indialantic, heard the BOLO and, observing an Oldsmobile carrying four black occupants, followed it out of Indialantic across Indian River and into the City of Melbourne, where he eventually pulled the vehicle over. The occupants (ap-pellees) were required to exit, and a sawed-off firearm and the stolen money were found in the vehicle. Appellees were arrested and the store clerk was brought to the scene of the arrest. She identified two of the appellees as the robbers. At a subsequent hearing on motion to suppress all tangible evidence obtained as the result of the stop, defense counsel argued that there were insufficient facts to constitute a founded suspicion that appellees had committed the robbery and that they were stopped merely as a result of the officer’s “hunch” and because they were black. The trial court granted appellees’ motion to suppress and the State filed this appeal.

Both the state and federal constitutions protect private citizens from unreasonable searches and seizures. Detentions, including brief investigatory stops of vehicles, are seizures of a person for fourth amendment purposes. The purpose of the constitutional proscription is to impose a standard of “reasonableness” upon the discretion of law enforcement and other governmental officials to safeguard the privacy and security of individuals against arbitrary invasion. There must be reasonable grounds to believe that the person has committed a crime in order for an investigatory stop of such person not to be an arbitrary invasion of that person’s constitutional rights. The police officer’s level of suspicion need not rise to the level of probable cause; a “founded suspicion” or “reasonable suspicion” is sufficient. All factors should be taken into account; this includes police reports, modes and patterns of criminal activity and all reasonable inferences and deductions made by trained police officers. Additional factors such as the implications of time, day of the week, location, physical appearances, behavior and activity, are also to be considered.

Before considering the facts and circumstances in this case in more detail, a consideration of the broad picture and of the nature of the problem here and a definition of some concepts and terms may be helpful.

Pure legal questions normally arise in an argument in which a rule of law is the major premise and the facts of the particular case are the minor premises; a conclusion is urged and reached by an analysis of the validity of the resulting syllogistic type of deductive argument. In legal arguments there are usually differences of opinion as to the applicable rule of law or as to the true facts in the particular case or as to the soundness and propriety of the application of the correct rule of law to the true facts. However, whatever the dispute as to content, because of their form, it is an unquestioned principle of logic that in all legal and other such deductive arguments the truth and correctness of the two premises provide absolute support for, and guarantee in a mathematical fashion, the certain truth and soundness of one correct conclusion. The doctrine of stare decisis is based on the assumption of an authoritarian major premise.

However, cases involving degrees of probative value of circumstantial evidence, such as those involving whether or not certain facts reach a certain standard or level of probative value, as in this case, present arguments that are not deductive but inductive, in which the premises provide some, but never absolute, support for the conclusion. As Chief Justice Burger explains in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), “The process does not deal with hard certainties, but with probabilities.” Id., 101 S.Ct. at 695. The legal question of whether a law enforcement officer had, or did not have, probable cause to believe (or whether he was justified in having a founded or reasonably based suspicion of) the truth of a certain factual conclusion refers, not to the truth or accuracy of his conclusion (as shown by hindsight based on additional facts or later events), but to the inductive strength of the officer’s factual basis and of the reasonableness of his deductions, that is, with the degree of support that the circumstances (the particular set of premises) provide for his particular hypothesis or conclusion. The basic characteristic of an inductive argument is that, even if all of its premises are true, it is still possible for the conclusion to be false, because the premises provide only partial support for the conclusion. This partial support can range from strong, almost absolute support at one extreme, to weak, almost nonexistent support, at the other.

Since the premises of a valid deductive argument themselves absolutely necessitate (imply) the conclusion, the addition of new premises to such an argument does not affect the support which the two basic premises provide for the conclusion. The addition of premises (additional probative facts) to an inductive argument, however, may strengthen or weaken support for a particular conclusion. Inductive arguments are evaluated in terms of their relative strength; that is, whether one is stronger or weaker than another, and not by any determination that it must provide but one absolutely correct and certain conclusion. Inductive arguments are usually evaluated in terms of their relative inductive strength by comparing the ways in which the particular or unobserved case or proposed hypothesis or conclusion is similar to (bears a positive analogy to) or different from (bears a negative analogy to) premises composed of a class of known (observed) cases or instances. The greater the positive analogy between the observed and unobserved cases, the stronger the enumerative induction; the greater the negative analogy, the weaker the enumerative induction, other things remaining unchanged. As it relates to a police officer having reasonable grounds to believe or suspect that a particular person has committed a crime, much of what the officer draws upon as a premises of “observed cases” comes from his knowledge obtained by training and experience relating to the motives and methods of criminals. Those matters constitute the major premise of the inductive argument and the various facts in the case collectively constitute the minor premises from which a conclusion is drawn.

The word probable means it is “more likely than not” that a particular categorical statement or proposition is, or will be, true or that a particular event has, or will, occur. If absolute truth or certainty is assigned a probability of 1 and absolute falsity or impossibility is 0, then all probability lies between 0 and 1 and the sum of all inconsistent statements or alternatively possible events cannot exceed l. An event, not impossible, but less than likely to occur is a mere possibility; an event more likely than not to occur is “probable.” Multiple events, each of which alone constitutes but a possibility, can aggregate to indicate probability. This is why each set of additional facts suggesting the same conclusion (additional premises) increases the strength of an inductive argument. “Probable cause” means having reason, based on facts, to believe that a particular proposition is true or that a particular event has occurred or will occur. Suspicion is belief in a possibility not based on the existence of a factual premises sufficient to support a reasonable inference of probability. Suspicion can be “bare” when it is based on circumstances inferring only a weak possibility. Suspicion can be “reasonable” or “founded” when it is based on evidence and deductions indicating a strong possibility, but either (1) the evidence is, or (2) the implications are, too weak to support an inference of probability.

Now to the further facts in this case and to an examination, analysis and evaluation of the police officer’s knowledge, experience, facts, deductions and conclusion. Sergeant Williams is entitled to an assumption that he knows what trained police officers and others know as to the actions and reasoning of usual “reasonable and prudent” robbers, as well as any other personal knowledge and experience shown by the evidence. The education, experience and business of police officers is knowing their own community and criminals’ activities, objectives, methods and thinking (modus operandi) and motives better than the criminal knows them.

Sergeant Williams knew that Melbourne Beach was south of and adjacent to India-lantic and that both small seaside cities are located on what is effectively a very long, very narrow, island separated from the mainland in Brevard County by the Indian River. No heavily traveled highway connecting large centers of population goes through this area. One main road, State Road A1A, runs north and south through both cities and up and down the island. There is no bridge across the river from Melbourne Beach and none to the south except one near Wabasso in an adjoining county over twenty long desolate miles away. From the robbery scene, the nearest causeway and bridge across the river is two or three miles north at State Road 516 (also known as Fifth Avenue) and runs from Indialantic across the river into the City of Melbourne. When Sergeant Williams heard the BOLO, he reasoned that the robbers would probably flee on foot only a short distance and would probably have a get-away car and would probably attempt to escape the crime scene to avoid apprehension and that they would probably do this quickly, but cautiously, and that they would probably do so by way of the nearest route off of the island. On the basis of these assumptions and deductions, Sergeant Williams promptly positioned himself and other officers at the intersection of State Road A1A and 516 (Fifth Avenue) where, within two or three minutes after receiving the BOLO, he saw the Oldsmobile carrying appellees approach the intersection on State Road A1A from the south (from the direction of the crime scene) and, without giving a traffic signal, make a sharp (the car s tires “chirped”) left turn onto to State Road 516 and head west toward the mainland at which time the officer commenced following (pursuing) it. The speed of the Oldsmobile constantly changed between the speed limit of 35 m. p. h. and 42 or 43 m. p.

Under these circumstances, the police officer had ample reason to believe that the robbers, whoever they were, would more likely than not (probably) pass through the intersection of State Road A1A and 516. This deduction serves, of course, to create a suspicion of guilt as to a large group of persons, being all persons going through this intersection. Obviously, his first deduction and resulting suspect group includes a large number of innocent persons. The likelihood of any one randomly selected member of this suspect group actually being one of the robbers is small — a bare or remote possibility. A first narrowing of these suspicions can be done with the time factor. The factors here relating to time and distance, as relating to the motives and objectives of the perpetrators, suggests that the time when it would be most probable (more likely than not) that persons passing through this intersection would include the robbers would commence four to five minutes after the robbery, continued for five to ten minutes, and then taper off and, in the absence of unusual circumstances, substantially end ten or fifteen minutes later. Thus time substantially narrows the original suspect group and greatly increases the possibility and probability that the narrowed suspect group will contain the robbers. The next narrowing relates to the direction of travel. Of all persons passing through the intersection during that time frame, we can further eliminate from suspicion all except those who approach from the south and turn west. Since persons approaching an intersection from each of four directions can do any of three things (turn right, turn left or go straight through) this second narrowing alone eliminates eleven out of twelve of the possibilities preceding it and again greatly enhances the possibility that the further narrowed suspect group will contain the robbers. There is now a reasonable working police hypothesis that possibility and suspicion is great that the fleeing robbers will be included within those persons now remaining in the suspect class, being all persons who during this narrow span of time approached this particular intersection from the south and turned west. The next factor is unfortunate because it relates to race and suggests a defense argument that the officer’s consideration of that factor must necessarily be arbitrary and discriminatory as based on bias or prejudice. Not so. The officer, as well as the robbed night clerk, testified at the suppression hearing as a matter of fact that, while black persons are frequently seen in the area during regular weekday work hours, because they did not live in the area and because of the absence of places and activities they prefer, they are rarely seen in this area during weekends or after 6:00 p. m. at night. In fact Sergeant Williams personally knew that in all of Melbourne Beach and Indialantic there resided but one black family and the officer knew the members of that family were composed of an elderly lady and her grandchildren and that the occupants of the Oldsmobile were not of that family. The mere fact that the robbers were black is in and of itself immaterial, but color is one of the most common ways of distinguishing between objects otherwise similar and here the fact that the robbers were black serves to eliminate from the possibility and suspicion of guilt all persons not black, which in this instance eliminates over ninety-nine percent of all local residents that might remain in the previously narrowed suspect group. In fact, the officer’s special knowledge of the one black resident family, coupled with the exclusion of all other (white) residents, eliminated from the suspect group all residents of Melbourne Beach and Indialantic. The officer noted that the Oldsmobile had a Palm Beach County tag.

This police officer’s specialized knowledge, gained from training, education and experience relating to the usual conduct of criminals and his personal knowledge of the geographic, demographic and ethnologic features of the community he served, plus a few meaningful facts promptly relayed to him and certain deductions here examined, enabled him, by inductive analogy and generalization, to formulate a hypothesis or conclusion pointing a strong finger of probability at a select group of suspects. That group was out-of-town black males in a vehicle approaching from the south and turning west at the intersection of State Road A1A and 516 in the City of Indialantic in a narrow window of time centered about 10:35 p. m. on Saturday, January 24, 1981. Appellees clearly fell into that very small, exclusive group. Based on the whole picture — a reasonable hypothesis reasonably inferred or deducted from objective facts constituting circumstantial but probative evidence — Sergeant Williams had ample probable cause to suspect appellees of having committed this robbery, a felony. His fresh pursuit and seizure of them was not arbitrary but was based on facts and logical deductions and was reasonable, justified and lawful. In overview, this was just not a good time and place for members of a highly distinguishable small minority group to commit a robbery and the police officer did a good job. Upon this analysis of the facts in this case in accordance with legal authority I agree that the order suppressing evidence seized as a result of the apprehension, seizure, arrest and search of appellees should be reversed and the cause remanded.

      .U.S.Const.amend. IV; Art. I, § 12, Fla.Const. The fourth amendment has been applied to the states via the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and both the Florida and federal provisions have been construed as providing identical protection. State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), affirmed, 387 So.2d 963 (Fla.1980) (adopting opinion of the district court of appeal). Additionally, Florida’s stop and frisk statute, § 901.151, Fla.Stat. (1979), has been interpreted as imposing these same constitutional standards. State v. Hetland. Section 901.151 provides, in part:
      Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

      . United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Hetland.

      . Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

      . Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Codie v. State, 406 So.2d 117 (Fla. 2d DCA 1981); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980), cert. denied, 398 So.2d 1352 (Fla.1981); State v. Gamble, 370 So.2d 428 (Fla. 3d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

      . U. S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

      . State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).

      . See I Wigmore on Evidence § 30 at 415 (3d Ed. 1940).

      . This basic truth is what makes a fallacy of defense counsel’s argument before the trial court that appellees could possibly have been mere innocent travelers on a public road. Unlike proof beyond a reasonable doubt in a purely circumstantial case where the evidence must exclude every reasonable hypothesis of guilt, a showing of probable cause proceeds only on the probability that facts and reasonable deductions combine to cause a reasonable person to believe that it is more likely than not that a particular hypothesis is correct — not that it cannot possibly be erroneous.

      . Wigmore calls these subordinate tests “method of agreement” and “method of difference.” I Wigmore on Evidence § 33 at 422 (3d Ed. 1940).

      . The probability that any particular (favorable) event will occur can often be determined by dividing the number of possible favorable events by the total number of equally possible events. If all possible events are not equally probable, probability can be determined by relative frequency (by dividing the number of observed favorable events by the total number of observed events) or by establishing the initial probability of any single event based on the knowledge, training and experience of a particular observer. Although this latter is subjectively based, it can still be reasonable, as based on facts and reasoning from logic and experience, or arbitrary, as when based on mere emotion, sentiment or bias. An event which is equally likely to occur or not occur, such as the probability of getting a head on a single toss of a coin, stands at the point of indifference or .5.

      . See, e.g., Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), reversed, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . Unfortunately, trial counsel continually prevented this officer from explaining to the court the specifics of his training and experiences and how they provided his knowledge as to “known” cases and how that specialized knowledge constituted the unarticulated premises for the inferences he drew from the particular facts in this case. An officer’s lack of opportunity or ability to articulate his deductions does not dismiss their validity, but only denies others the opportunity to ascertain them for analysis and evaluation.

      . The confines and isolation and light use of SR A1A to the south obviously make it a less preferable escape route than to the north.

      . The early day English robber could hope to avoid the resulting “hue and cry” on foot, but the modern day robber needs a get-away car to rapidly leave the scene of the crime to avoid the rapid communication and transportation facilities of present day law enforcement officers, who can normally be expected to converge on the crime scene promptly after alarm.

      . Robbers being followed by an unknown vehicle would subconsciously want to flee rapidly but would know they should drive within the speed limit to avoid suspicion or arrest on traffic charges. An experienced police officer could reasonably read appellees’ actions as resulting from a nervous, subconscious speeding up being constantly corrected and checked by a conscious awareness of the necessity to avoid speeding and suspicion. Even a honey bee with no reasoning powers guarding her hive can detect the robber bee in flight because it, being laden with guilt and apprehension rather than pollen and nectar, approaches a landing too high, too slow and too hesitantly.

      . See § 901.25(1), Fla.Stat. (1979). Since we find probable cause existed before it occurred, we have not considered appellees’ final suspicious act which occurred in the City of Melbourne, when all three passengers ducked down below the vehicle’s windows and out of sight.

      . For a factually similar recent case, see Plant v. State, 407 So.2d 966 (Fla. 1st DCA 1981). See also State v. Perera, 412 So.2d 867 (Fla. 2d DCA 1982). The law normally contemplates the solution of a legal problem by using an applicable constitutional or statutory provision or prior case adopting a rule or principle of law (stare decisis) as the major or law or authoritative premise, which, when paired with a minor premise composed of the facts in a subsequent case, constitutes a syllogistic deductive argument, the logical effect of which forces a proper conclusion in a later case. This method does not apply or work when the problem requires the analysis and evaluation of an inductive argument, which deals only with relevant facts and relationships in the real world, rather than the presence of an authoritarian major premise (correct because of its authority) and of internal consistency in the reasoning process, as is involved in the usual deductive argument. Problems involving the quantum and quality of evidence (proof), possibilities, probabilities, presumptions of fact, implications, inferences, and their strength, and the sufficiency of one fact as the inferential basis for proof of (belief in) another fact all involve the inductive process, as do questions as to foreseeability and reasonableness, such as reasonable care, reasonable value, reasonable child support, and other matters with a subjective basis.
      Problems requiring use of the inductive process (a concept of logic, a branch of philosophy) are not subject to solution by a deductive argument in which one premise is an authoritative rule of law because law (man-made authority) cannot control the nature of the reasoning process involved in an inductive argument any more than law can control other natural forces and laws such as those of mathematics, physics, science and psychology. Even the implica-tive value of the data in one inductive argument has little, if any, relevancy as to that in any other inductive argument and is certainly not controlling in the other. An inductive argument in one law case, even a factually similar one from a high court whose precedents are binding, cannot constitute a binding premise in a similar subsequent inductive legal argument and is never dispositive of the later case. This truth is what bothered Judge Smith in Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975); see especially note 7 in that case. A law case, such as U. S. v. Cortez, involving an inductive argument, constitutes, at best, but an example, instructive as to the method of correctly evaluating an inductive argument. Unfortunate as it is that analysis of inductive reasoning is difficult because of the highly intricate nature of the probability theory, nevertheless, it is insufficient to merely cite or recite the facts in another, albeit authoritative, case involving an inductive argument and then merely announce a decision in the later case.
      When the law provides a clear rule of law based on objective criteria, its application as the authoritative premises of a deductive argument not only permits the rule to be more uniformly and equally applied but also permits its application to be more closely reviewed. However, when the law has been unable to formulate a definite rule of law or standard or guide and provides only a vague standard based on subjective criteria and opinion, an inductive argument results, there is much disparity in conclusions in similar cases and appellate review is either a difficult analysis or a mere substitution of opinion for that below. The law considers most of the problems it leaves to be solved by the inductive process to be “findings of fact” not subject to judicial review. In the few legal arguments that are inductive in nature, such as “probable cause” in this case, to determine whether the conclusion is well founded, the strength of each of its premises and implications must be analyzed and evaluated because its rationale is reasoning. Courts must use reasoning, not authority, to solve inductive legal arguments, because in such cases law departs from justice as well as common sense when it relies on brute authority as a substitute for careful inductive reasoning based on the particular facts in the case at hand.


author: COBB, Judge.

text:
    Etta B. SHEFFIELD, Appellant, v. Samuel DALLAS, Appellee.
    No. 81-833.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Raymond W. Williams, Jacksonville, for appellant.
    Gerald R. Hart of Spinner & Hart, P. A., Jacksonville, for appellee.
   COBB, Judge.

Edna Dallas Miller died intestate on May 14, 1980. She left 13 heirs. The heirs consisted of one brother, Paul Dallas, and 12 children of deceased brothers and sisters. Seven of the children of the deceased siblings petitioned the court for the appointment of Etta Sheffield, appellant, to be the personal representative of the estate. Letters of Administration were issued to Sheffield on May 22, 1980. On July 31, 1980, Paul Dallas petitioned for the revocation of Sheffield’s Letters of Administration and requested that Letters of Administration be issued to himself, since he was the heir in the nearest degree. Sheffield answered and a hearing was set. However, prior to the hearing the parties agreed that Sheffield would resign as personal representative and that Dallas would be appointed the successor personal representative.

On February 9, 1981, Sheffield filed her petition for resignation and an attached “final accounting,” which included legal fees chargeable to the estate in the amount of $4,452.50. On March 30, 1981, the probate court entered an order appointing Dallas as successor personal representative. On March 31, 1981, the probate court entered an order directing Sheffield to give notice to the surety and to deliver the assets of the estate to Dallas. The order further stated that upon the giving of the notice and the delivery of the assets that the probate court would accept Sheffield’s resignation.

On April 8,1981, Dallas filed his objection to the legal fees contained in Sheffield’s accounting. A hearing was held on May 28, 1981, and the court entered an order reducing the attorney fees to $2,750. Sheffield has appealed this order.

Sheffield contends that her accounting was a final accounting in accordance with Florida Probate and Guardianship Rule 5.400, and that therefore any objection to Sheffield’s accounting should have been filed within thirty days of the date of service. Since the accounting was served on February 2, 1981, and the objection to the accounting was not filed until April 8, 1981, Sheffield contends the objection was untimely.

The accounting filed by Sheffield was not a final accounting under the applicable rule. At the time Sheffield was replaced as personal representative, the estate had not been fully administered except for distribution, as clearly contemplated by the rule. Therefore, the objection to the attorney fee for representing the wrong personal representative — which fee was approximately one-fourth of the entire estate — was not untimely, and it was entirely proper for the trial court to hold the May 28th hearing on the reasonableness of the fee.

Indeed, even in the absence of a timely objection or any objection, it is the statutory (and inherent) obligation of the trial court to review and determine the reasonable amount of compensation to be paid to an attorney for a personal representative in a probate proceeding. § 733.-617, Fla.Stat. (1981).

The trial court properly and diligently discharged its obligation to monitor this estate and protect it from what it factually determined to be an excessive claim for an attorney fee. Indeed, the trial court set out in considerable detail the basis for its reduction of the requested award. Once a probate court has exercised its discretion in setting a reasonable compensation, that decision will be disturbed on appeal only upon a clear showing by the appellant that it is contrary to the manifest weight of the evidence. In Re Estate of Ryecheck, 323 So.2d 51 (Fla. 3d DCA 1975). No such showing has been made by this appeal.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      . Section 733.617, Florida Statutes (1981), provides as follows:
      Compensation of personal representatives and professionals.—
      (1)Personal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative shall be entitled to reasonable compensation. Reasonable compensation shall be based on one or more of the following:
      (a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the service properly.
      (b) The likelihood that the acceptance of the particular employment will preclude other employment by the person.
      (c) The fee customarily charged in the locality for similar services.
      (d) The amount involved and the results obtained.
      (e) The time limitations imposed by the circumstances.
      (f) The nature and length of the professional relationship with the decedent.
      (g) The experience, reputation, diligence, and ability of the person performing the services.
      (2) If a will provides for the compensation of the personal representative either directly or conditionally and there is no contract with the decedent regarding compensation, he may renounce the provisions and be entitled to reasonable compensation. A personal representative also may renounce his right to all or any part of the compensation. A renunciation may be filed with the court.
      (3) If the personal representative is a member of The Florida Bar and has rendered legal services in connection with his official duties, he shall be allowed a fee therefor, determined as provided in subsection (1).


text:
    Stephen T. ROTHSCHILD and House of Rothschild, Inc., a Florida corporation, Appellants, v. Richard E. KISLING, t/a R. E. K. Group, Appellee.
    No. 81-857.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Thomas B. DeWolf of DeWolf, Ward & Morris, P. A., Orlando, for appellants.
    Patrick A. Raley of Law Offices of Thomas Y. Infantino, Winter Park, for appellee.
   COWART, Judge.

In December of 1977, appellee filed suit against appellant seeking damages for appellant’s infringement of appellee’s common law copyright by the unauthorized use of a set of appellee’s building plans. Although the trial court initially found for the appellant, this court reversed that judgment, directed that judgment be entered for appel-lee, and remanded the case to the trial court for determination of the compensatory damages due the appellee. Kisling v. Rothschild, 388 So.2d 1310 (Fla. 5th DCA 1980), review denied, 397 So.2d 779 (Fla.1981). On remand, the trial court awarded the appellee damages in the amount of ten percent of the cost of construction of each of three houses the appellant had built using the plans. We reverse.

There was various testimony at the original trial going towards the damages the appellee had suffered. Appellant testified that if he had acquired the plans from a planning service, the cost would have been between $300 and $500. Alternatively, if he had had an architect prepare the plans from scratch, it would have cost between $1,000 and $1,500. As a third measure, appellant testified that copyrighted house plans were available through mail order for $250 apiece with no limit on the number of times the plans could be used. On the other hand, appellee elicited testimony from an architect, that the architect charged in the vicinity of anywhere from eight to twelve percent of the cost of the structure as his fee for designing a house from scratch. The architect additionally testified that on a $40,000 home, he would probably charge twelve percent because he would not want to do it and it was not the type of work he normally did. It was stipulated that appellant built three homes from the plans and the construction costs of the three houses were $43,500, $45,500 and $49,500. The trial court ultimately awarded damages in the amount of ten percent of the sum of the costs of construction of all three Rothschild houses.

In the previous appeal from this case, this court aligned itself with the majority of jurisdictions when it held appellee had a common law copyright in his architectural plans and designs and that the appellant’s unauthorized use of those plans constituted an infringement. Kisling v. Rothschild, 388 So.2d 1310 (Fla. 5th DCA 1980), review denied, 397 So.2d 779 (Fla.1981). However, the correct measure of damages in such a situation was not addressed.

When a defendant infringes upon the plaintiff’s common law copyright in an architectural plan, the correct measure of damages has been stated variously as “the fair market value of his set of ... plans,” “the fair value of the ... plans,” “the value of the converted property [plans] at the time and place of the misappropriation plus legal interest,” “the fair reasonable market value of the property converted as of the date of conversion plus interest,” and the “value of the item converted.” While, in general, the various definitions all amount to a “fair market” value, there appears to be at least three different methods for arriving at this figure.

The first method is to determine what the plan’s worth is to the owner. Under this concept, several considerations would be material: (1) the value of the work of the owner in creating the plan, (2) the decrease in the value of the plan to the owner because of the infringement, and (3) any loss of profit the owner would have made from using the plan in the future on account of the infringement. While, in the abstract, such a measure of damages would recompense the owner for the infringement, in practice, finding competent evidence to support these various factors would be difficult, if not impossible.

A second method for determining damages would be to determine the infringed plan’s worth to the infringer. Under this method, a plaintiff would recover the percentage of the infringer’s profit which was attributable to the plan. Unfortunately, this method of computation suffers the same problems as the previous method. While the infringer’s total profit is susceptible to evidentiary proof, the percentage of the profit attributable to the plan is highly subjective and not susceptible to any type of direct proof.

Finally, a third method for determining the fair market value for an architectural plan is to determine what a willing buyer would pay a willing seller for the plan. Under this method, there does not appear to be any clear industry preference between a flat fee or a percentage of the cost of the construction of the building encompassed in the plan. However, there was evidence in the instant case that the percentage of the cost of construction was one permissible method and this method has been used elsewhere. However, while the trial court may not have erred in using the percentage method in determining damages, the trial court did err in not considering the plan’s attribute of uniqueness as a factor in mitigation of the damages. In awarding ten percent of the cost of construction of each home, the trial court stated this court’s previous opinion required him to award some special measure of damages for the plan’s unique character. However, the “uniqueness” of a plan in determining whether it qualifies for common law copyright protection is not necessarily the same as a plan’s “uniqueness” in determining the damages suffered by the infringement. This is best illustrated by contrasting two examples. First, assume the appel-lee had only used the plans to build one home and intended this home to be the only one ever built; then appellant appropriates the plans and builds ten identical homes in close proximity to appellee’s home. In the second example, appellee uses the identical plans to build one hundred similar homes in a housing development; then appellant appropriates the plans and builds an additional ten houses. In both situations the plans may still be sufficiently unique to justify common law copyright protection. However, appellee’s damages in the second situation are arguably much less since the plans themselves have lost much of their unique character with each additional home built. This uniqueness aspect would affect the measure of damages under the percentage method (third method above) in two respects. First, the fact that the appellee built several homes using the plan before the infringement occurred would partially mitigate the award of damages for the initial breach of the appellant. Secondly, while each additional house built by the appellant constituted a separate breach with additional damages, each subsequent breach (actually each subsequent use by anyone) should require some reduction in the plan’s then market value due to the dwindling unique aspect of the plan. Because of the trial judge’s interpretation of our prior opinion which related to liability, this mitigation aspect was not considered by the trial court in the instant case. Therefore, the judgment is reversed for reconsideration in light of this opinion relating to damages.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886, 896 (1964).

      . Nucor Corp. v. Tennessee Forging Steel Service, Inc., 513 F.2d 151, 153 (8th Cir. 1975).

      . Masterson v. McCroskie, 194 Colo. 460, 573 P.2d 547, 551 (1978).

      . Jones v. Spindel, 122 Ga.App. 390, 177 S.E.2d 187, 190 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971), affirmed on appeal after remand, 128 Ga.App. 88, 196 S.E.2d 22 (1973).

      . Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315, 320 (1967).

      . See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966).

        .See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966). This measure of damages is often used in copyright infringement cases involving other types of literary properties. For example, in Smith v. Little, Brown and Co., 273 F.Supp. 870 (S.D.N. Y.1967), affirmed, 396 F.2d 150 (2d Cir. 1968), plaintiff sued defendant for infringement of her manuscript. In this situation, plaintiff was required to show the money the defendant had received from the sale of the book and the defendant was allowed to show the costs incurred in publishing the book. Even when the net profits were arrived at, defendant was allowed to attempt to show that the profit should be apportioned between the plagiarized portion of the published work and the nonplagiarized portion. Accord, Sammons v. Colonial Press,

        Inc., 126 F.2d 341, 346 (1st Cir. 1942); Sheldon v. Metro Goldwyn Pictures Corp., 106 F.2d 45, 51 (2d Cir. 1939), affirmed, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1940).

      . See, e.g., Doup v. Almand, 212 Ark. 687, 207 S.W.2d 601 (1948); Read v. Turner, 239 Cal. App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Jones v. Spindel, 122 Ga.App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971), affirmed on appeal after remand, 128 Ga.App. 88, 196 S.E.2d 22 (1973).

      . See, e.g., Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Masterson v. McCroskie, 194 Colo. 460, 573 P.2d 547 (1978); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964).


text:
    Ronald W. KINLAW, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 81-1336.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Ronald W. Kinlaw, pro se.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee.
   ORFINGER, Chief Judge.

The order of the Unemployment Appeals Commission, upholding the decision of the appeals referee which denied unemployment benefits to appellant, is affirmed.

There is substantial competent evidence to support the referee’s finding that appellant was discharged for misconduct as defined in section 443.101, Florida Statutes (1981). See also Varig Brazilian Airlines v. Florida Department of Commerce, 354 So.2d 921 (Fla.3d DCA 1978). While appellant disputed the employer’s evidence on the issues of misconduct, this court cannot substitute its judgment for that of the agency on disputed issues of fact. Penez v. Florida Department of Labor and Employment Security, 377 So.2d 806 (Fla. 3d DCA 1979).

AFFIRMED.

DAUKSCH and COBB, JJ., concur.


text:
    O. B. LINKOUS and O. B. Linkous Realty, Inc., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION and Board of Real Estate, Appellees.
    No. 81-1343.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.

      Glenn R. Padgett of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellants.
    Frederick H. Wilsen and Salvatore A. Carpino, Tallahassee, for appellee Department of Professional Regulation.
    No appearance for Board of Real Estate.
   COWART, Judge.

This is an appeal of an administrative order suspending appellant’s real estate broker licenses for two years and imposing a $1,000 fine.

We have carefully reviewed the record and find that appellants were subject to disciplinary action for the conduct alleged in the administrative complaint and that the findings of the hearing officer are supported by competent substantial evidence and are hereby approved. However, two points remain.

While section 455.227(2), Florida Statutes (1981), authorizes a fine “in addition to or in lieu of any other discipline,” that section is derived from chapter 79-35, section 5, Laws of Florida, effective July 1, 1979, a date after the conduct which is the basis for the disciplinary action in this case and, therefore, cannot be applied ex post facto. Appellants are subject only to the penalties provided in section 475.25(1), Florida Statutes (1981), which provides:

The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding ten years, may revoke a license, may impose an administrative fine not to exceed $1,000.00 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

Appellant Linkous argues, and we agree, that the listed penalties are a series of phrases separated by the disjunctive article “or” and are thus in the alternative and, therefore, the Board of Real Estate can impose one or the other of the penalties provided, but not two or more for the same conduct. Therefore, while the findings and conclusions of the appellee regulatory agencies are approved, the disposition in this case is reversed and set aside and the cause remanded for reconsideration of a proper disposition within the limits of the statute as here construed.

Appellant Linkous also complains that appellee regulatory agencies should consider only matters in the record submitted by the hearing officer and that, while the hearing officer can act on matters officially noticed, such matters must be part of the record. The hearing officer did not take official notice of the fact that appellant had previously been the subject of a disciplinary proceeding and did not make it part of the record. There is an indication that the appellee regulatory agencies in considering their disposition in this case did consider a certified copy of an entry from a March 13, 1961 meeting of the Florida Real Estate Commission involving some prior disciplinary action against appellant. Since we are reversing the disposition for the matters discussed above, we do caution that appellant is entitled to be given advance notice of all matters that the appellee regulatory agencies will consider at their disposition hearing so that appellant will have a fair opportunity to prepare to respond if he desires.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . § 120.57(l)(b)8„ Fla.Stat. (1981).

      . § 120.57(l)(b)7„ Fla.Stat. (1981).

      .§ 120.57(l)(b)5.c., Fla.Stat. (1981).