source: Caselaw Access Project

author: SCHWARTZ, Judge. HUBBART, Judge

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Walter R. MAIER, Jr., Appellee. Thomas James BUSIELLO, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-227, 79-695.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Jan. 28, 1980.

      Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for the State.
    Milton E. Grusmark, Miami, for Walter R. Maier, Jr., and Thomas James Busiello.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Although it is of course dangerous and forbidden to eat of its fruit, we hold in these cases that one may safely have a meal in a structure partially constructed with lumber made from the poisonous tree. The facts which give rise to the use of this outrageous, but we think appropriate, extension of the all-too-familiar metaphor follow.

On July 11, 1977, in their Coral Gables home, Mr. and Mrs. Shultz were robbed at gunpoint by two men, Maier and Busiello, who took several items of jewelry and other valuables and then fled. Mr. Shultz had had a recent eye operation and could make no identification. Mrs. Shultz, on the other hand, got a good look at and was able to describe them both. For a period immediately after the crime, however, the identity of the offenders remained unknown.

On July 16, 1977, Suffolk County, New York police officers, serving a warrant on a totally unrelated charge, arrested Maier at a condominium in which he and Busiello were living in Long Island, New York. In the course of that arrest, the officers seized pieces of jewelry from a bedroom in the apartment. The trial judge held below, and the state now concedes, that the seizure was unlawful and in violation of the Fourth Amendment. The effect of that determination is the focus of these appeals. This is so because the taking of the jewelry led directly to the identification of Maier and Busiel-lo as the perpetrators of the Coral Gables burglary and armed robbery.

Indisputably, this occurred in an entirely fortuitous fashion. As a matter of routine, the Suffolk County authorities sent descriptions of the jewelry they had seized across the police teletype to several, apparently randomly selected, cities throughout the country. The teletype information came to the attention of Coral Gables police Sgt. James Butler, one of the officers investigating the Shultz robbery. Butler thought he recognized some of the described items as having been taken from the Shultzes and requested the Suffolk County police to forward photographs of the jewelry and of the persons who had occupied the apartment from which it was taken. The New York authorities complied with these requests. On August 24, 1977, the Coral Gables police showed Mrs. Shultz first the written descriptions, and then the photographs of the jewelry seized from the condominium. She positively identified several items as having been taken from her home during the robbery. As a result, about two weeks thereafter, on September 13, 1977, the officers displayed to Mrs. Shultz a photographic lineup which contained the pictures of Mai-er and Busiello obtained from Sufflok County. The lower court specifically determined — and no attack is made here on that finding — that the photo lineup itself was fairly conducted and was not improperly suggestive. Upon viewing the photo display, Mrs. Shultz quickly and with certainty identified the pictures of both Maier and Busiello as those of the offenders in question.

Based upon her identification, Busiello and Maier were charged in a three-count information filed in the Dade County Circuit Court with the armed robbery of the Shultzes, the armed burglary of their home, and the possession of a firearm in the commission of those felonies. After pre-trial discovery, both defendants moved to suppress (a) the jewelry seized in Suffolk County, New York; (b) Mrs. Shultz’s September 13, 1977 out-of-court identifications at the photo lineup and (c) her in-court identification of defendants as those who had burglarized and robbed her. The trial judge suppressed the jewelry as the product of an illegal search; this ruling was concededly correct and is not before us. The out-of-court identification was also suppressed as to both defendants, solely on the basis of the ruling that their photographs would not have been obtained “but for” the clue to their relevance provided by the identification of the illegally seized jewelry. Concerning the in -court identifications by Mrs. Shultz, the trial judge reached a different conclusion as to each of the respective defendants. He concluded that Mrs. Shultz was able to identify Busiello entirely independently of the photo lineup, based solely on her recollection of him at the scene of the crime; the motion to suppress the in-court identification of Busiello was therefore denied. As to Maier, he determined that the photo lineup, while not suggestive, “sparked [Mrs. Shultz’s] memory so that she is presently in a position to have a recollection regarding the identification of the defendant,” which she would not have had if she had not been shown the offending photos. He therefore suppressed the in -court identification of Maier as also tainted by the unlawful seizure of the jewelry.

After the denial of his motion to suppress the in-court identification, Busiello pled nolo contendere, specifically reserving the right to review the propriety of that ruling. In Case no. 79-695, Busiello seeks review of the judgment and sentence entered against him upon the court’s acceptance of that plea. Case no. 79 — 227 is an appeal by the state from the order suppressing the in-court and out-of-court identifications of Maier. Treating both cases together, we hold that the photographic lineup was not “tainted” by its tenuous connection with the illegally seized jewelry and that neither the out-of-court nor, therefore, the in-court identifications of the defendants were subject to suppression. Accordingly, we affirm Busiello’s conviction and reverse the order suppressing the identifications of Maier.

The contentions of both Maier and Busiello are entirely based upon a single simple fact: if the jewelry had not been illegally seized, the police would not have become aware of the defendants’ existence and they would not have been identified by Mrs. Shultz; and upon the claim that any evidence which would not have existed but for a violation of the Fourth Amendment must be suppressed as “fruit of the poisonous tree.” Primarily because the law is directly contrary to that contention, their arguments for suppression must be rejected. There is simply no blanket “but for” test which results ipso facto in the exclusion of all testimony which is causally related to an illegal search or seizure. To the contrary, such testimony should be admitted when, as the Supreme Court held in Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963):

[T]he connection between the lawless con''duct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312. We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959). [e. s.]

As it was similarly and recently stated in United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 277 (1978):

Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a ‘per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness-testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).

In applying these principles to the cases before us, we must of course focus upon the underlying reason for the existence of the exclusionary rule: to deter government officials from constitutional violations by denying them the use of improperly obtained evidence. See Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956). It is apparent that this policy is more-than-sufficiently vindicated by the exclusion from evidence of the illegally seized jewelry itself, see People v. Griffin, 59 Cal.App.3d 532, 130 Cal.Rptr. 648, 652 (1978), and, on the other hand, would not be furthered in the slightest by precluding evidence of Mrs. Shultz’s independent identifications of the defendants as the robbers. Surely, the Suffolk County police officers who actually committed the illegal act will not be rendered any less likely to do it again by their knowledge of such a result. United States v. Ceccolini, supra, at 435 U.S. 280, at 98 S.Ct. 1062, at 55 L.Ed.2d 279. Moreover, there is no evidence of a collusive pre-search communication between Coral Gables and New York or of knowledge by the Suffolk County officials of the fact that the Coral Gables offense had even taken place. There was certainly no indication of a deliberate or purposeful desire illegally to secure the jewelry as a means of solving that crime. Compare United States v. Edmons, 432 F.2d 577 (2d Cir. 1970). Under these circumstances, it is plain that the eye-witness identification of the defendants was not the result of an “exploitation” of the illegal seizure of the jewelry, see also United States v. Ceccolini, supra, at 435 U.S. 280, at 98 S.Ct. 1062, at 55 L.Ed.2d 268; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and that the connection between that identification and the adventitious, if unlawful, discovery of a clue to the suspects’ identity was so “attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939).

The overwhelming weight of authority supports this holding. The case of Commonwealth v. Crutchley, 242 Pa.Super. 496, 364 A.2d 381 (1976) is almost identical factually to this one. There, the illegal seizure of credit cards, which had been stolen in a robbery, led directly to the investigating police officer’s suspicion that Crutchley was one of the two men involved and to the defendant’s subsequent identification by the victim at a photo lineup. Citing and relying upon the likewise similar case of Lockridge v. Superior Court of Los Angeles County, 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683 (1970), cert. denied, 402 U.S. 910, 91 S.Ct. 1387, 28 L.Ed.2d 652 (1971), the court held that the identification testimony was properly not suppressed below. It stated at 364 A.2d 383-384, in language directly applicable here:

We are satisfied that Mr. Mastronardo’s [the victim’s] identification was based on his personal observation of appellant at the scene of the robbery. Here, clearly, the evidence did not derive from the ‘exploitation’ of any illegality, but instead from a source wholly independent of the illegal search.
* * * * * *
The illegal police action in the case at bar occurred during the investigation of a crime totally unrelated to the crime for which the identification was necessary. It was ‘pure happenstance’ that the police uncovered the credit cards during the illegal search of appellant’s apartment for narcotics. The trial judge suppressed the direct product of the illegal search, i. e., the credit cards. . . . While the illegally seized credit cards led to the connection of appellant with the ‘Seven-Eleven’ robbery, we find that the identification evidence presented by the Commonwealth at trial was so independent of the seizure as to be untainted by any illegality and therefore not within the ‘fruit of the poisonous tree’ prohibition.

In several cases, the actual photograph identified by a witness was secured only after and as a direct result of an unlawful but unrelated arrest of the defendant. Although this situation is less attenuated than the one before us, in which there is no claim that the pictures of Busiello and Maier were themselves illegally obtained, it has been consistently held that the illegal arrest does not render the identification or even the photograph itself inadmissible. The leading authority on this point is People v. McInnis, 6 Cal.3d 821, 826, 100 Cal.Rptr. 618, 494 P.2d 690 (1972), with which we entirely agree. As the court stated at 100 Cal.Rptr. 621, 494 P.2d 693:

To hold that all such pictures resulting from illegal arrests are inadmissible forever because they are ‘fruits of the poisonous tree’ would not merely permit the criminal ‘to go free because the constable has blundered’ (Cardozo, J., in People v. Defore (1926) 242 N.Y. 13, 21, 150 N.E. 585, 587) but would allow the criminal immunity because another constable in another jurisdiction in another case had blundered.

Accord: People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372 (1973); People v. Griffin, 59 Cal.App.3d 532, 130 Cal.Rptr. 648 (1976); State v. Price, 27 Ariz.App. 673, 558 P.2d 701, 705 (1976) (“We fail to see how the purpose of deterring unlawful police conduct would be furthered by suppressing the testimony of known victims of the armed robberies.”); see also, United States v. Ceccolini, supra.

For these reasons, we hold that the out-of-court identifications of both defendants by Mrs. Shultz should not have been, suppressed. It follows, a fortiori, both that the in-court identification of Maier is likewise admissible and that there was no error in declining to exclude the in-court identification of Busiello.

The order of suppression as to Maier, which is under review in Case no. 79-227, is reversed and the cause is remanded with directions to deny the motion to suppress the identifications in question.

The conviction and sentence of Busiello, under review in Case no. 79-695, are affirmed.

HUBBART, Judge

(concurring).

I concur in the opinion and judgment of the court and would add only that a different question would be presented if, unlike this case, the defendants had been identified by Mrs. Shultz from photographs taken of the defendants after having been unlawfully arrested by the police in New York. No such issue, however, is involved in this case as the defendants make no contention that the photographs in question were the product of an alleged unreasonable seizure of their persons in New York. It is, accordingly, my view that the court’s approval of People v. McInnis, 6 Cal.3d 821, 100 Cal.Rptr. 618, 494 P.2d 690 (1972), on this issue is dicta and not an authoritative holding of the instant case. Indeed, Mclnnis was a 4-3 decision with the dissenters presenting at least a colorable' position which I am not prepared, in this case, to reject in favor of the majority position. I would reserve judgment on this issue for another day. See 3 LaFave, Search and Seizure § 11.4, 664-666 (1978).

Beyond that, I think the court is clearly correct in finding that the excluded evi-deuce herein was sufficiently removed from the illegal search and seizure of the jewelry in New York so as to be purged of the primary taint under the fruit of the poisonous tree doctrine. Although the “but for” test is a helpful starting point in applying this doctrine, it is not, as the court properly concludes, the sine qua non of our analysis here. If the “but for” test is satisfied, as it is in this case, we must still inquire whether there are any circumstances which act to dissipate or purge the taint of the initial illegality as to the evidence sought to be excluded. Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Admittedly, this is scarcely a “bright line” test which can be applied with scientific accuracy, but it seems eminently sound, notwithstanding its vagueness, so that the courts may avoid carrying the fruit of the poisonous tree doctrine to extremes which little serve the purposes of the exclusionary rule when weighed against the societal cost for its imposition. Brown v. Illinois, 422 U.S. 590, 608-609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring).

The instant case is a good example. It surely makes little sense, in terms of deterring future illegal police action, to exclude the pre-trial identification of the defendants from photos which were lawfully seized from them merely because those particular photos would not have been shown to Mrs. Shultz “but for” the illegal search in New York. The societal cost of applying the exclusionary rule to free people from criminal prosecution-, notwithstanding evidence of their guilt, outweighs, in my judgment, whatever minimal deterrent value lies in applying the exclusionary rule to such an extreme. That is, no doubt, a judgment call but, I think, a reasonable one under the circumstances based on the analysis set forth in the court’s opinion. We must keep the reach of the exclusionary rule within sensible bounds and I think the court has done so in this case.

      . The parties agree that Mrs. Shultz’s identification is the only evidence against Busiello and that the denial of the motion to suppress it was therefore dispositive of the case so as to permit its review on a nolo plea. Brown v. State, 376 So.2d 382 (Fla.1979).

      . There is no contention, as in, e. g., People v. McInnis, 6 Cal.3d 821, 100 Cal.Rptr. 618, 494 P.2d 690 (1972) and People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372 (1973), discussed infra, that the photographs of the defendants used in the lineup were themselves improperly secured. The sole claim is that information about the illegally seized jewelry led to the defendants’ becoming suspects in the case and thus to the use of the photos in the lineup.

      . It should be pointed out that the principle that one must demonstrate proper standing to object to an unlawful search itself demonstrates the absence of an absolute rule which precludes the use of unlawfully seized evidence for any purpose. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

      . See note 2, supra.

      . The only basis for suppressing the in-court identification of Maier was the effect of what the trial court held to be the unlawful photographic • lineup. Our holding that the out-of-court identification was not tainted, without more, requires reversal of that conclusion. Hence, we need not consider the validity of the holding below that the photo lineup, while not suggestive, so jogged the recollection of Mrs. Shultz that she could not have identified Maier at the trial absent the lineup, and that any such in-court identification was therefore also to be excluded. We observe, however, that there is no reason to believe that her recollection of Maier at the scene of the crime would not have been similarly “sparked” by seeing him at the trial. Since the photo lineup was not suggestive so as to cause either a likelihood of mis-identification or a reliance upon anything but Mrs. Shultz’s memory of Maier when the offense took place, it is difficult to follow the logic of suppressing a proper identification merely because the witness had made a similarly fair identification at an earlier time. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

      . Busiello contends that his in-court identification should be suppressed because, if the jewelry had not been illegally seized, he would not have been arrested and would therefore not have been in court to be identified. Even if our ruling as to the out-of-court identification were otherwise, we would have no difficulty in rejecting this contention, which takes the rejected “but for” test to its logical, not to say absurd, extreme.

      . I do not fault defense counsel for failing to make this contention as apparently the record will not support it. First, there is no clear showing that the photographs identified by Mrs. Shultz were taken after the defendants had been arrested in New York even assuming such arrests were unreasonable. Second, it appears clear that the defendant Maier was lawfully arrested in New York pursuant to an arrest warrant on an unrelated charge. Finally, the trial court made no finding on this record that the arrest of either defendant was'unreasonable in New York; it held that the warrant-less search of the defendants’ New York apartment was unreasonable solely because it was conducted without valid consent.


author: HUBBART, Judge.

text:
    The STATE of Florida, Appellant, v. Raunel RAMOS, Appellee.
    No. 79-332.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Jan. 28, 1980.

      Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Henry Gonzalez and Russell A. Spatz, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   HUBBART, Judge.

The central question presented for review is whether a police officer’s observation of a person (a) with a bulge protruding from under such person’s clothing which is consistent with, but does not reveal the actual outline of a firearm, (b) wearing unseasonably long and heavy clothing on a hot day, and (c) with a prior arrest record for illegal possession of firearms, constitutes a reasonable basis to temporarily seize such person and conduct a carefully limited search of the outer clothing of such person to discover the presence of weapons under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. We hold that: (1) such a temporary seizure and limited search of the person is reasonable within the meaning of the above constitutional provisions, and (2) the discovery and seizure of a concealed firearm in such a limited search constitutes a reasonable basis for a subsequent arrest of the person for carrying a concealed firearm, and a full-blown search of such person incident thereto, within the meaning of the above constitutional provisions. We, accordingly, reverse the order under review which suppressed the evidence seized in this cause in both the limited and full-blown search.

I

The facts pertaining to the above issue are as follows. On June 3,1978, at approximately 3:00 p. m., Detective Orlando Martinez of the Miami Police Department, attached to the robbery division, was on duty at a car lot located at 1565 Flagler Street, Miami, Florida. It was an extremely warm day and his purpose in being at the car lot was to have his police car serviced as it was not cooling well. While there, he observed the defendant Raunel Ramos waiting for his pickup truck to be washed in a car wash facility at the rear of the car lot. At first, Detective Martinez saw only the back of the defendant, but was attracted to the defendant because he was wearing unusually long and heavy clothing for the weather. The defendant had on a dark brown leisure suit with a long-sleeved shirt and coat and was standing under a hot sun. At that point, the defendant turned to face Detective Martinez who, in turn, recognized the defendant as having a prior criminal arrest record for illegal possession of firearms. A few minutes later, the defendant again turned revealing the presence of a bulge under his clothing which was consistent with, but did not reveal the actual outline of a firearm. Under the circumstances, Detective Martinez thought the defendant might be armed, radioed this information to his police dispatcher and asked for a backup police unit.

About this time, the defendant got in his truck and drove to a nearby laundromat. Detective Martinez followed the defendant in a police car. Upon arriving at this location, Detective Martinez was joined by Officer Luis Soler of the Miami Police Department who arrived in another police car. Officer Soler briefly conferred with Detective Martinez and then approached the defendant who was about to get into his pickup truck having just paid for and picked up his laundry at the laundromat. The defendant still had a large bulge under his leisure suit. Officer Soler stopped the defendant and advised him that he wanted to ask him a few questions and to check his clothing for firearms. Whereupon Officer Soler patted the outside of the bulge of the defendant’s clothing which revealed the presence of a firearm. Officer Soler ordered the defendant to put his hands on the top of the truck and retrieved a .45 caliber firearm. The defendant was thereupon placed under arrest by Officer Soler for carrying a concealed firearm and a complete search of his person was made which revealed the presence of a vial of cocaine, nine live rounds of .38 caliber ammunition, a fully loaded clip with the .45 caliber firearm.

The defendant was subsequently charged by information with carrying a concealed firearm [§ 790.01(2), Fla.Stat. (1977)] and possession of a controlled substance, to wit: cocaine [§ 893.13(l)(e), Fla.Stat. (1977)]. The defendant through counsel entered a plea of not guilty and filed a motion to suppress all of the evidence seized by the police from his person on the ground that such evidence was obtained as a result of an unreasonable search and seizure. The parties then submitted depositions of Detective Martinez and Officer Soler to the trial court as constituting the evidence on the motion to suppress. Those depositions revealed the existence of the above-stated facts. After reviewing these depositions and hearing argument of counsel, the trial court entered an order suppressing the evidence. The state appeals that order, which appeal we have jurisdiction to entertain. § 924.071, Fla.Stat. (1977).

II

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution guarantee to the people the right “to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” By their very terms, these constitutional provisions protect every person against “unreasonable searches and seizures” of their “persons.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). “[A] police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968). Unlike the search of private premises, however, there is no general constitutional requirement that a police officer obtain a search or arrest warrant before he may seize and search a person. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); State v. Perez, 277 So.2d 778 (Fla.1973). Compare: Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977).

A person has been seized within the meaning of the above constitutional provisions “whenever a police officer accosts an individual and restrains his freedom to walk away . . .”. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1968). There are, in turn, two types of police seizures of a person which act to restrain personal liberty. The first is a temporary detention on the street for investigatory purposes; the second is formal arrest which necessitates a trip to the police station for booking or for further questioning. Both are serious invasions of personal privacy and should not be lightly undertaken. “Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of the citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969).

A temporary detention on the street is, however, a less intrusive invasion of privacy than a formal arrest and, therefore, may be constitutionally accomplished based on articulable or founded suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Ingram v. State, 264 So.2d 109 (Fla.4th DCA 1972); Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971); § 901.151, Fla.Stat. (1977). A formal arrest, on the other hand, involves a more intrusive invasion of personal privacy, and, consequently, requires a greater evidentiary showing in order to be reasonable, to wit: probable cause to believe that the person arrested has committed a felony. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brown v. State, 62 So.2d 348 (Fla.1952); § 901.15, Fla.Stat. (1977).

The right to conduct a search subsequent to a reasonable police seizure of a person depends, in part, on the nature of the seizure. If the seizure is a formal arrest, the police have an automatic right, without any further evidentiary showing, to conduct a full-blown search of the person arrested and the physical area into which he might reach in order to grab a weapon or destroy evidentiary items. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), affirming State v. Gustafson, 258 So.2d 1 (Fla.1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); § 905.21, Fla.Stat. (1977). Indeed, such a scope of search is essential for the police to perfect the arrest and prevent the destruction of evidence by the arrestee. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). On the other hand, if the seizure is a temporary detention for investigation, there is never any right to conduct such a full-blown search of the person detained, as such is not necessary to accomplish the detention. The police may only conduct a carefully limited, self-protective search of the outer clothing of such person to discover the presence of weapons; moreover, this limited search does not automatically follow upon a valid temporary detention, but can only be accomplished based on ar-ticulable or founded suspicion that the person detained is armed. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Lundy, 334 So.2d 671 (Fla.4th DCA 1976). Such a showing is made, however, where the basis for the prior valid temporary detention is articulable or founded suspicion of criminal activity involving an actual or potential threat of violence. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Brooks, 281 So.2d 55 (Fla.2d DCA 1973); State v. Woodard, 280 So.2d 700 (Fla.2d DCA 1973). This limited basis for, and scope of search is tailored specifically for the police to accomplish the temporary detention, freeze the criminal situation and investigate further without unnecessarily endangering the police officer involved.

Ill

In the instant case, we deal with a temporary detention of a defendant on the street followed by a carefully limited, self-protective search of the outer clothing of his person for the purpose of discovering the presence of weapons. Subsequent to this stop and frisk, a concealed firearm was seized from the defendant which, in turn, formed the basis for an arrest of the defendant for the felony of carrying a concealed firearm and a subsequent full-blown search incident thereto. This full-blown search revealed the presence of cocaine, a firearm clip, and ammunition. The trial court suppressed the firearm seized in the limited search and the cocaine, firearm clip, and ammunition seized in the full-blown search apparently on the theory, urged by the defendant, that the initial temporary stop of the defendant was not based on articulable or founded suspicion of criminal activity, and that the invalid stop, in turn, tainted the subsequent frisk, arrest and full-blown search. We cannot agree.

It is well-settled in this state that the presence of a bulge under a person’s clothing which is consistent with, but does not reveal the actual outline of a firearm or other weapon constitutes, when coupled with other incriminating circumstances, ar-ticulable or founded suspicion of criminal activity for the police to temporarily detain the person involved and thereafter conduct a carefully limited, self-protective search of the outer clothing of the person involved for concealed weapons. McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Francois, 355 So.2d 127 (Fla.3d DCA 1978); Williams v. State, 294 So.2d 37 (Fla.3d DCA 1974); State v. Woodard, 280 So.2d 700 (Fla.2d DCA 1973); Thomas v. State, 250 So.2d 15 (Fla.1st DCA 1971). These decisions rest on sound ground as the police must be able, based on limited evidentiary showings, to act swiftly to disarm people carrying concealed weapons on the street; the possession of these firearms all too often leads to crimes of violence including murder. The governmental interest in suppressing the illegal possession of firearms is too great in this area to impose artificial restrictions on police conduct; yet, at the same time, a blanket authority to stop and frisk cannot be countenanced herein as important privacy interests are involved. A delicate balance must be struck.

In the instant case, the police observed the defendant with a bulge under his clothing which was suspiciously consistent with the presence of a firearm. This suspicion was further supported by the fact that (a) the defendant was wearing unseasonably long and heavy clothing which tended to indicate that this clothing was being used to hide something on his person from public view, and (b) the defendant had a prior criminal arrest record for illegally possessing firearms. Under these limited circumstances, we believe the police had an articu-lable or founded suspicion to believe that the defendant was carrying a concealed firearm. Although insufficient to constitute probable cause for arrest, it was certainly no inchoate or inarticulated hunch that caused the police to act as swiftly as they did in this case. As such, the stop and frisk of the defendant in the instant case was reasonable.

After the firearm was obtained from the defendant pursuant to a reasonable stop and frisk, it is clear that the police had probable cause to arrest the defendant for a felony, to wit: carrying a concealed firearm, and to thereafter conduct a full-blown search of the person of the defendant wherein they discovered cocaine, a firearm clip, and ammunition. The seizure of this additional evidence was reasonable as it was made incident to a valid arrest of the defendant. Moreover, no search or arrest warrant was obtained for the defendant and none was required.

The trial court committed reversible error in granting the defendant’s motion to suppress the evidence seized by the police from his person. All of this evidence was reasonably seized from the defendant consistent with his right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. The order under review must, accordingly, be reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: PER CURIAM.

text:
    CERTIFIED INVESTMENTS, INC., a Florida corporation, Appellant, v. DADELAND NATIONAL BANK, a National Bank Corporation, Appellee.
    Nos. 79-556, 79-626.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Jan. 31, 1980.
    Hugh F. Quinn, South Miami, for appellant.
    Holtzman & Krinzman and Richard N. Krinzman, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See, Fleming v. Otis Elevator, 107 Fla. 557, 145 So. 201 (1933); Buckley Tower Condominium, Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1977), cert. den. 348 So.2d 945 (Fla.1977); Moore v. Purvis, 194 So.2d 67 (Fla. 3d DCA 1967); Scocozzo v. General Development, 191 So.2d 572 (Fla. 4th DCA 1966).


text:
    Olivio ORTIZ and Carmen Ortiz, his wife, Appellants, v. TANDY CORPORATION d/b/a Radio Shack and Aetna Casualty and Surety Company, Appellees.
    No. 79-849.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Greene & Cooper and Joan M. Bolotin, Mark J. Feldman, Miami, for appellants.
    Preddy, Kutner & Hardy and Michael J. Parenti, III, Miami, for appellees.

      Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

There being no material questions of fact, defendants were entitled to a final summary judgment as a matter of law. See Genaust v. Illinois Power Company, 62 Ill.2d 456, 343 N.E.2d 465 (1976).

Affirmed.


text:
    Roger YOST, Herbert W. Abramson and Ivan Phillips, on behalf of themselves, and all other shareholders of Congress International Development Corporation, Appellants, v. CONGRESS INTERNATIONAL DEVELOPMENT CORPORATION, Howard Sonn, Stuart E. Wilson, Eugene Snidow and H & M Cattle Company, Inc., Appellees.
    No. 79-904.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Savitt, Kotzen & France and Howard J. Lubel, North Miami Beach, for appellants.
    Schatzman & Schatzman and Arnold Schatzman, Miami, Robert L. Gossett, Hollywood, for appellees.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The order dismissing this stockholder’s derivative action is reversed upon a holding that (a) the complaint herein does not allege sufficient facts to show on its face that the action is barred by the statute of limitations, Green v. Bartel, 365 So.2d 785 (Fla.3d DCA 1978); Tullo v. Horner, 296 So.2d 502 (Fla.3d DCA 1974), (b) the dissolution of Congress International Development Corporation does not bar the instant action, § 607.297, Fla.Stat. (1977); and (c) the plaintiffs should be given leave to amend their complaint upon remand to join Clear Lake Village, Inc. as an indispensible party plaintiff to this action. Alario v. Miller, 354 So.2d 925 (Fla.2d DCA 1978).


text:
    James D. EMERY et ux., Appellants, v. Jose MILTON and Paragon Investment Corporation, a Florida corporation, d/b/a Joseph Enterprises, a partnership, Appellees.
    No. 79-905.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied Feb. 6, 1980.

      Nelson & Nelson and Stephen H. Nelson, Hialeah, for appellants.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The final judgment appealed from is affirmed upon a holding that (a) specific performance on this contract to convey real property did not lie for failure of the plaintiff purchasers to tender the purchase price as required by the contract, Robinson v. Abreu, 345 So.2d 404 (Fla.2d DCA 1977); 29A Fla.Jur. “Specific Performance” 757-758 (1967); and (b) the defendant sellers did not repudiate the contract so as to excuse the plaintiff purchasers’ above failure to tender the said purchase price; see Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); 29A Fla.Jur. “Specific Performance” 764-766 (1967).


text:
    JEROME ALEXANDER COSMETICS, INC., a corporation, Appellant, v. JOHN ROTH AND ASSOCIATES, INC., a corporation, Appellee.
    No. 79-1829.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Lapidus & Stettin and Ellen Marsha Mandel, Miami, for appellant.
    Krongold & Bass and Paul H. Bass, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. Professional Patient Transportation, Inc. v. Fink, 365 So.2d 209 (Fla. 3d DCA 1978); Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977).


text:
    Ivy LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2098.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.

      Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See Smith v. State, 375 So.2d 864 (Fla. 3d DCA 1979).

Affirmed.


text:
    Edward Lowell THOMPSON, a/k/a Edward Thompson, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2314.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Edward Lowell Thompson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, Edward Lowell Thompson, a/k/a Edward Thompson pursuant to Fla.R. App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: COBB, Judge.

text:
    David Donald ROUCH, Appellant, v. STATE of Florida, Appellee.
    No. 78-489/T4-68.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 1980.
    Richard L. Jorandby, Public Defender, and Michael Salnick and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

This appeal is from a conviction of two counts of armed robbery based on a nolo contendere plea with reservation of right to appeal the trial court’s denial of appellant’s motion to suppress a confession.

In Brown v. State, 376 So.2d 382 (Fla.1979), the court cited the reasoning of the District Court of Appeal, Third District, “that under State v. Ashby, 245 So.2d 225 (Fla.1971), a conditional nolo plea is permissible only if the legal issue to be appealed is dispositive of the case,” and held “that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea.”

Following the example of the supreme court in Brown, supra, this cause is remanded to the Circuit Court for Orange County to give appellant the opportunity to withdraw his plea of nolo contendere and plead anew if he so desires.

REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    Frank BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2189/T4-242.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

This appeal is from a conviction of burglary of a dwelling and grand theft based on entry of a nolo contendere plea with reservation of right to appeal the trial court’s denial of appellant’s motion to suppress inculpatory statements. This cause is remanded to give appellant the opportunity to withdraw his plea of nolo contendere and plead anew if he so desires. See Rouch v. State, 378 So.2d 1302 (Fla. 5th DCA 1980); Brown v. State, 376 So.2d 382 (Fla.1979).

REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    Darrell Lorenzo JONES, Appellant, v. STATE of Florida, Appellee.
    No. 78-826/T4-90.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender and Jon May, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for Appellant and representing to this Court that no reversible error appears. On June 20, 1979, the Fourth District Court of Appeal, before which this appeal was originally filed, gave the Appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The Court has reviewed the brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the judgment of conviction is hereby

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and UPCHURCH, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: ANSTEAD, Judge.

text:
    Dorothy KELLY, Appellant. v. Marvin F. STEVENSON, as Executor of the Last Will and Testament of B. F. Stevenson, deceased, and Buckeye Holding Co., a Florida corporation, Appellees.
    No. 78-1549.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    George L. Moxon of Law Offices of George L. Moxon, Fort Lauderdale, for appellant.
    Robert J. O’Toole, Fort Lauderdale, for appellees.
   ANSTEAD, Judge.

This is an appeal from a judgment entered upon a verdict directed against the appellant and is the second appearance of this ease before this court. In Kelly v. Buckeye Holding Company, 297 So.2d 869 (Fla. 4th DCA 1974) this court reversed a final summary judgment entered against the appellant. That opinion contained a concise statement of the case and this court’s disposition:

The cross-complaint filed by Kelly against Buckeye alleged, in effect and inter alia, that she was the equitable owner of the subject property by having paid the whole consideration thereon; that she permitted title to the property to be taken in the name of Buckeye based upon certain alleged representations made by Martin upon which Kelly relied; that Martin and Buckeye refused to re-convey the property back to her and that they “have or are attempting to convert said property to their own use after trust”. The cross-complaint sought an accounting and damages occasioned by the subject property not having been re-conveyed back to her. A review of the pleadings, depositions and answers to interrogatories on file together with other papers and affidavits reflects the existence of genuine issues of material fact with respect to the ownership of the subject property and in particular the presence (or nonpresence) of a breach of trust or fiduciary relationship between the parties and suggestions of fraudulent inducement. The existence of these disputed material issues of fact precludes a determination in a summary proceeding and would necessitate a full hearing on the merits. (Id. at 870)

Upon trial after remand a directed verdict was entered after the appellant presented substantially the same evidence that had been before the court when the previous summary judgment was entered. The trial court announced that the directed verdict was based on the appellant’s failure to file her claim within the applicable statutory period. We believe the trial court erred. Although appellant’s testimony contained substantial conflicts, she presented competent substantial evidence that the appellees had agreed, orally and in writing, to hold title to the subject property for her in trust and that she filed her action for damages within three years of the time she actually discovered that appellees had breached that trust by claiming title adverse to her. Matthews v. Matthews, 222 So.2d 282 (Fla.2d DCA 1969).

Accordingly, the judgment of the trial court is reversed with directions for further proceedings in accordance herewith.

LETTS and HERSEY, JJ., concur.


text:
    B. S. MERRITT, Appellant, v. BANKERS TRUST COMPANY, a New York Corporation, Appellee.
    No. 78-1885.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Michael J. Padula and Brian L. Kimber of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellant.
    Frank J. Sinagra of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for appellee.
   PER CURIAM.

The trial court concluded appellee to be a holder in due course. Section 673.302, Florida Statutes (1971). While the evidence was conflicting, the record supports the trial court’s decision. Sections 673.303, 674.-208, Florida Statutes (1971).

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Martin C. SAUNDERS, Appellee.
    No. 78-1966.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.

      David H. Bludworth, State’s Atty., and Stephen M. Brewer and Debra E. Pole, Asst. State’s Attys., West Palm Beach, for appellant.
    Robert E. Gordon and Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal by the state from an order dismissing an information filed against the appellee charging him with perjury and tampering with evidence.

The appellee was served with a subpoena duces tecum to appear at the state attorney’s office and produce a knife believed to be evidence in a pending sexual battery case filed against his son. Prior to issuance of the subpoena the state learned of appel-lee’s possession of the knife and received a description thereof from the appellee’s wife and daughter. Subsequently, the appellee responded to the subpoena and produced a knife which he asserted to be the one sought by the state. The state claims it was not the knife described by the wife and daughter, hence the perjury and tampering charges.

Appellee filed a motion to dismiss alleging that he was entitled to receive Miranda warnings from the state attorney prior to testifying and that, in the absence thereof, no charges could be filed against him based upon his testimony. Upon the state’s stipulation that no Miranda warnings were given, the trial court granted the motion. We reverse.

As a general rule, Miranda warnings need not be given to a witness subpoenaed by the state attorney’s office to give testimony in the investigation of a pending case against another individual. State v. Newsome, 349 So.2d 771 (Fla.2d DCA 1977). There are no circumstances in the record which require the application of any different rule here. A case was pending against appellee’s son, not appellee. Having received information from the appellee’s wife and daughter that he had possession of relevant evidence in the case, the state attorney had a legitimate interest in securing production of such evidence by subpoena. In doing so the state was not required to anticipate that the appellee would subsequently appear and intentionally produce the wrong knife. Nor was the state required to give Miranda warnings on the basis of such anticipation so as to in effect warn the appel-lee that if he did give a false statement, the false statement might later be used against him to prove that he had given a false statement. In United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed. 212 (1976), the United States Supreme Court held that the failure to give Miranda warnings to a witness called to testify before the grand jury concerning criminal activities in which he may have been involved does not insulate him from a perjury prosecution. In doing so, the Supreme Court clearly established that perjury is not a permissible response even when a witness’ constitutional rights have been violated. Accordingly, even if appellee had been entitled to Miranda warnings, and we do not believe he was under the circumstances herein, he would not be entitled to dismissal of the perjury and tampering charges subsequently filed.

This cause is hereby reversed with directions for further proceedings in accord- ' anee herewith.

LETTS and HERSEY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    John TALBOT, Appellant, v. George William TALBOT, Personal Representative of the Estate of George W. Talbot, Jr., Deceased, Appellee.
    No. 78-2203.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Rehearings Denied Feb. 4, 1980.
    Richard S. Thayer and Stanley Cheff of Richard S. Thayer, P.A., Boca Raton, for appellant.
    Andrew F. O’Connell of O’Connell & Cooper, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The trial court dismissed appellant’s action with prejudice on the grounds that the three year statutory limitation period in effect at the time the cause of action accrued had expired. Shortly after the cause of action accrued and well before the three year period expired, the limitation period was increased by the legislature to four years. We believe the appellant was entitled to file his action within the enlarged four year period. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978).

Accordingly, the order of dismissal is hereby reversed with directions for further proceedings in accordance herewith.

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    Robert W. JONES and Beulah N. Jones, his wife, Appellants, v. SOUTHEAST LIFE INSURANCE COMPANY OF FLORIDA, Appellee.
    No. 78-2275.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Robert M. Hustead of Florida Rural Legal Services, Inc., Homestead, for appellants.
    Paul H. Bass of Krongold & Bass, P. A., Coral Gables, for appellee.
   PER CURIAM.

This is an appeal from an order dismissing appellants’ complaint with prejudice. Upon review of Count I of the complaint we are of the view that such count states a cause of action for breach of a contract of insurance. Rucks v. Old Republic Life Insurance Company, 345 So.2d 795 (Fla. 4th DCA 1977). Because the cause of action is not clearly stated and also because it is improperly combined with other causes of action we believe that the appellants should be permitted to file an amended complaint for breach of contract.

Accordingly, the trial court’s order of October 3, 1978, is affirmed as to all portions of the complaint except Count I; and this cause is hereby remanded with directions that appellants be granted leave to file an amended complaint for breach of contract.

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    David NORD, Appellant, v. STATE of Florida, Appellee.
    No. 78-2485.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Richard L. Jorandby, Public Defender, Thomas E. Zamorano, Legal Intern, Polly M. Shull and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978).

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    Linda Saulsby SMITH, a/k/a Linda Smith, and Michael Lauren Smith, an infant, by his next friend, Linda Saulsby, a/k/a Linda S. Smith, Appellants, v. Arthur James Hardy SMITH, and “DOES” I through X Inclusive, Appellees.
    No. 79-576.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Robert J. Compton of Law Offices of Robert J. Compton, Fort Lauderdale, for appellants.
    Robert M. Bulfin of Law Offices of Carl W. Turner, Fort Lauderdale, for appellees.
   PER CURIAM.

This cause is hereby dismissed for lack of appellate jurisdiction. See Fischer v. Trafalgar Towers Association No. 2, Inc., 372 So.2d 528 (Fla.4th DCA 1979).

ANSTEAD, LETTS and BERANEK, JJ., concur.


author: SHIVERS, Judge.

text:
    Melvin BOYNTON, a/k/a Freddy Boynton, Appellant, v. STATE of Florida, Appellee.
    No. NN-132.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1980.
    Rehearing Denied Feb. 4, 1980.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellant brings this appeal from his conviction of first degree murder and raises several points. We find two that present reversible error.

These reversing points relate to failure of the prosecution, after proper demand, to comply with the rules of criminal procedure by (1) failing to disclose the name of the witness, Bill Pheil, who testified over defense counsel’s objection, and (2) failing to disclose the substance of the testimony of the witness, Linda Pryor, whose testimony was allowed over objection.

The trial court had discretion to determine whether the non-compliance with Florida Rule of Criminal Procedure 3.220 would have resulted in harm or prejudice to the appellant. However, the trial court’s exercise of discretion could only have been made after the court had made an adequate inquiry into all the surrounding circumstances. If the court had then determined the non-compliance had not prejudiced defendant’s ability to properly prepare for trial, the circumstances establishing non-prejudice must have affirmatively appeared in the record. See Richardson v. State, 246 So.2d 771 (Fla.1971).

Here, the inquiry as to the failure to furnish the name of witness Bill Pheil was inadequate in extent as it dealt with the late notification of the witness’ name and the substance of his testimony. No inquiry was made into the effect of the breach on the preparation of the defendant’s case. No finding was made that the preparation of the appellant’s defense was not prejudiced.

Here, the prosecutor informed defense counsel that Linda Pryor would be a state witness. The prosecutor failed to disclose the substance of witness Linda Pryor’s testimony. He also failed to disclose that Linda Pryor would testify to numerous oral statements attributed to appellant.

A “Richardson inquiry” should have been made in each case to assess the impact the respective non-disclosures had on the ability of the appellant to prepare for trial.

Where such a “Richardson inquiry” is not made, no appellate court can be certain errors of this type are harmless. An appellate court cannot now review the cold record and determine that the error is harmless. McClellan v. State, 359 So.2d 869 (Fla.App. 1st DCA 1978).

We reverse and remand for a new trial.

McCORD and LARRY G. SMITH, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Steven W. FUSILIER, Appellee.
    No. 79-877.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1980.
    George A. McKendree of Miller, McKen-dree & Somers, Tampa, for appellant.
    Mac A. Greco, Jr., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

We reverse on the authority of State Farm Mutual Automobile Insurance Company v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), and State Farm Mutual Automobile Insurance Company v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), and remand the cause for further proceedings.

REVERSED and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Daniel MADISON and Glynnis Mitchell, Appellants, v. STATE of Florida, Appellee. Carol O’DONNELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-2429, 78-2731.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Rehearing Denied Feb. 20, 1980.
    John D. O’Donnell, of Panza, O’Donnell & Jacobson, Fort Lauderdale, for appellant, Mitchell.
    Joel Hirschhorn, P. A., Miami, for appellant, Madison.
    Jon H. Gutmacher, Fort Lauderdale, and Michael Trent, Pompano Beach, for appellant, O’Donnell.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I feel compelled to concur in the majority’s affirmance of the trial court’s order denying a motion to suppress, on the authority of Gustafson v. State, 243 So.2d 615 (Fla. 4th DCA 1971).


text:
    Henry STEPHENS, Sr., Appellant, v. Jean STEPHENS, Appellee.
    Nos. 79-883, 79-907.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.
    Rehearing Denied Jan. 31, 1980.
    Nelson & Nelson and Stephen H. Nelson, Hialeah, for appellant.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellee.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The judgments under review by this appeal and cross-appeal are affirmed upon a holding that: (a) the award of attorneys fees was well within the trial court’s discretion to set as such is supported by competent evidence in this record, Krasner v. Krasner, 339 So.2d 674 (Fla.3d DCA 1976); and (b) the set-off awarded as to child support arrearages herein was permissible on this record as such represented expenses laid out by the husband for the proper support of the children. Jimenez v. Jimenez, 309 So.2d 38 (Fla.3d DCA 1975); Warrick v. Hender, 198 So.2d 348, 351 (Fla. 4th DCA 1967); § 61.13(4), Fla.Stat. (1977).


text:
    Richard K. FINK, Sidney L. Syna, Fink and Syna, a partnership, and Fink and Syna, P. A., a Florida corporation, Appellants, v. GULF INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 79-1290.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.
    Carhart & McGuirk and James McGuirk, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. Prescott v. Mutual Benefit Health and Accident Association, 133 Fla. 510, 183 So. 311 (1938); Williams v. Mutual of Omaha, 297 F.2d 876 (4th Cir. 1962).


text:
    BREVARD COUNTY SCHOOL BOARD and The Hartford Insurance Group, Appellants/Cross-Appellees, v. Doris James KING, Appellee/Cross-Appellant.
    No. QQ-110.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1980.
    Rehearing Denied Feb. 4, 1980.
    Donna C. Wyatt, of Cooper & Rissman, P.A., Orlando, for appellants/cross-appel-lees.
    John Marshal Rest, of Billings, Frederick, Wooten & Honeywell, P.A., Orlando, for appellee/cross-appellant.
   PER CURIAM.

The claimant, a 49-year old teacher’s aide with a high school education, received an anatomical impairment rating of 10% based solely on physical complaints arising out of a compensable accident that occurred on February 20, 1975. Dr. Jesse Ledbetter treated her from the date of accident until June of 1975 and reported that as of April 11th she was able to return to work. She, however, remained unemployed and, on May 9th and June 5th, Dr. Ledbet-ter repeated his suggestion that she return to work. The claimant changed doctors and, on July 9, 1975, she was seen by Dr. Diaz who initially suspicioned a herniated disc. Objective testing was negative, but on August 18, 1975, the doctor advised the claimant to remain out of work for another 3-6 months. Her complaints continued and by January of 1976, Dr. Diaz felt that there was possible psychological overlay. Claimant moved to Texas and began seeing Dr. DeYoung who, on May 24th, advised her that there was nothing physically preventing her from returning to work. On June 10, 1976 she was involved in a non-compen-sable automobile accident and underwent a laminectomy for neck and shoulder problems incident thereto. She chose not to follow through with suggested psychological treatment and, on December 10, 1977, Dr. Kornblit opined that she had reached a point of maximum medical improvement with 10% permanent partial disability of the body as a whole, in spite of the cervical laminectomy. The factual situation is such that the record will support the deputy’s finding that a job search was not required from February 20, 1975 until December 10, 1977. We can, however, find no evidence justifying claimant’s failure to seek a job subsequent to December 10th. Pain alone does not necessarily indicate a loss of wage earning capacity, nor is it an excuse for not seeking a job. Knittel v. Terminal Transport Co., IRC Order 2-3114 (February 28, 1977). The claimant has not demonstrated a loss of wage earning capacity in excess of her anatomical rating. Accordingly the record will not support the deputy’s finding of permanent total disability. This is borne out by claimant’s refusal to test her em-ployability despite repeated suggestions by her physicians that she return to work.

The decretal portion of the deputy’s order correctly adopts the stipulated date of maximum medical improvement, therefore, any finding to the contrary is harmless error. The issue of apportionment argued in the main brief and by cross-appeal has not been treated in light of this reversal.

The order is reversed and the cause remanded to the deputy with directions that he reconsider his order in accordance with this opinion.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    Ernest Lee SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 79-751.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1980.
    Jack O. Johnson, Public Defender, Bar-tow, and Susan G. Sexton, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand so that the lower court may strike the portion of the revocation order finding that appellant failed to pay monthly supervisory fees, because there was no proof that appellant had the financial ability to make the payments. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979). We otherwise affirm the order of revocation, and the judgment and sentence.

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.


text:
    Johnny W. TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. NN-319.
    District Court of Appeal of Florida, First District.
    Jan. 15, 1980.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant pleaded guilty to the offense of aggravated battery in January 1978 and, without adjudication, was placed on probation for one year, on condition that he serve 90 days in the county jail. Upon his release from jail, appellant violated terms of his probation by assisting in a burglary. The court then revoked his probation, adjudicated him guilty of aggravated battery, and again placed him on probation for a period of four years, on condition that he serve nine months in the county jail. Appellant contends this amounted to an extension of the original term of his probation, and that such an extension is unauthorized by section 948.06(1), Florida Statutes (1977). We find the probationary sentence, pronounced after revocation of the prior probationary sentence, could originally have been the sentence imposed and is proper. Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978).

AFFIRMED.

ROBERT SMITH, LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    James Michael DONOVAN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. SS-134.
    District Court of Appeal of Florida, First District.
    Jan. 15, 1980.
    James Michael Donovan, petitioner, pro se.
    Michael H. Davidson, Gen. Counsel, Gainesville, for respondent.
   PER CURIAM.

The response to the order to show cause having been considered, the order is discharged and the petition for writ of mandamus, or in the alternative, a writ of prohibition, is denied.

LARRY G. SMITH, SHAW and WENT-WORTH, JJ., concur.


text:
    Diego I. OJEDA, Petitioner, v. Louie WAINWRIGHT, Respondent.
    No. SS-238.
    District Court of Appeal of Florida, First District.
    Jan. 15, 1980.
    Diego I. Ojeda, petitioner, pro se.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The response to the order to show cause having been considered, the order is discharged and the petition for writ of habeas corpus, is denied.

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


text:
    Frederick CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1301.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The defendant was found guilty after a jury trial upon an information charging him with possession of heroin and cocaine. On this appeal, he presents three points for reversal of the judgment and sentence. The first urges error upon the trial court’s denial of motions for mistrial. The motions were made upon the ground that the prosecutor commented on acts of the defendant which amounted to evidence of non-existent collateral crimes. The second urges error in the failure to grant a mistrial based upon claimed inferences in the prosecutor’s closing argument concerning the defendant’s silence at trial and at the time of arrest. The third point claims error in the imposition of a general sentence.

We consider the governing question on this appeal to be whether the harmless error rule may be applied to violation of the. collateral crimes rule as established by Williams v. State, 110 So.2d 654 (Fla.1959).

In the course of his opening statement, the court allowed the prosecutor to tell the jury, over the defendant’s objections and motions for mistrial, that the defendant “. . . did not appear for one of his Court appearances after being notified, and the State, or the Court, was unable to bring him before the Court again until early January of this year [1977].” We note that no proof of such defaults on the defendant’s' part was ever presented to the jury. The trial court could not have known that the State would not produce such evidence. We mention the comment because of its relevancy to further comments and the defendant’s motions for mistrial.

Police officers testified that they initially arrested the defendant after they saw him running with a brown paper bag in his hand, following an extensive chase, when they pulled him from beneath a truck where the bag, which contained narcotics, was also located.

The officers also testified that between February 1975 and January 1977, they attempted to detain the defendant approximately sixteen times, but that on all such occasions, the defendant had escaped them by running. There was no testimony or evidence to tie these flights by the defendant to the currently-prosecuted crime or to an alias issued by any court. The defendant objected to this testimony and renewed his motion for mistrial.

Evidence of the defendant’s guilt in this case was overwhelming. He was caught after fleeing from the police, hiding and then concealing the bag of narcotics which he had been carrying. It is well settled that a criminal conviction will not be reversed where the evidence of guilt is full and complete and there is no clear demonstration of a violation of substantial rights of the defendant with injury therefrom. See Ennis v. State, 300 So.2d 325 (Fla.1st DCA 1974); and Matera v. State, 218 So.2d 180 (Fla.3d DCA 1969).

We hold that in the absence of any evidence tying the sixteen occasions, or any of them, on which the defendant fled from police officers, to the prosecution of the instant case, the Williams rule was violated because the clear implication of the evidence was that the defendant was engaged in criminal conduct from which he was consistently fleeing the police. Cf. the principles in Matthews v. State, 366 So.2d 170 (Fla.3d DCA 1979); and Dibble v. State, 347 So.2d 1096 (Fla.2d DCA 1977).

Having held that error appears in the record, we turn to the question originally announced, of whether such a violation of the rule of evidence established in the Wi7-liams case may, under the circumstances of this particular case, be held to have been harmless. We believe that it is harmless and, accordingly, we hold that where the proof of guilt is clear and convincing so that even without the collateral evidence introduced in violation of the Williams rule, the defendant would clearly have been found guilty, then the violation of the rule may be considered harmless. See Hamilton v. State, 356 So.2d 30 (Fla.3d DCA 1978); Gordan v. State, 288 So.2d 295 (Fla.4th DCA 1974); Keel v. State, 243 So.2d 630 (Fla.4th DCA 1971). The record in this case fully supports such a determination by this court. The proof of the defendant’s guilt was full, and it was established without substantial refutation on any point. There was, in fact, no real defense presented by the defendant. We, therefore, hold that the error in the introduction of evidence was not reversible.

The contention that the prosecutor commented upon the silence of the defendant is strained and could not reasonably have been given the meaning attributed to it. . We, therefore, find no error on this point. See e. g., Whitney v. State, 132 So.2d 599 (Fla.1961); Jones v. State, 355 So.2d 198 (Fla.3d DCA 1978); and Francis v. State, 343 So.2d 932 (Fla.3d DCA 1977).

The remaining point relating to the general sentence imposed upon the two counts of which the defendant was found guilty would present reversible error under authority of Dorfman v. State, 351 So.2d 954 (Fla.1977); except for the fact that the rule announced in that opinion is not retroactive to invalidate sentences rendered pri- or to the time of its announcement “. . . where a challenge to the general sentence has [not] been made and properly preserved as a question for appellate review.” Gonzalez v. State, 367 So.2d 1008, 1011 (Fla.1979). No such challenge was made in the present case.

The judgment and sentences are affirmed.


text:
    Clarence WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-623.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The point presented on this appeal urges that a defendant who has received a split sentence — a four and a half year prison sentence, with the first year and a half of the sentence to be served in prison and the final three years to be served on probation —cannot, upon violation of probation, be sentenced to more than the remainder of the original sentence. This point has been decided in State v. Jones, 327 So.2d 18 (Fla.1976). See also State v. Holmes, 360 So.2d 380 (Fla.1978).

Affirmed.


author: BARKDULL, Judge.

text:
    Mercedes ALVAREZ, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 79-561.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.

      High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Neil Chonin, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

Mercedes Alvarez, plaintiff in the trial court, appeals from a “final judgment on pleadings”, entered in favor of Metropolitan Dade County in an action for damages.

Alvarez was a paying passenger on a County bus when she was attacked by an unknown assailant. The attack occurred at a location where other passengers had previously been assaulted. Alvarez brought suit against the County, seeking damages on the theories that the County had breached its contract of carriage and had breached, negligently, the duty owed by a common carrier to its passengers.

We affirm. The County would only be liable for the assault of one patron on another patron if the defendant knew that the particular assailant had dangerous propensities. Here, there was no previous notice to the County that the assailant had dangerous propensities. This rule of law was stated in Hall v. Seaboard Air Line Railway Company, 84 Fla. 9, 93 So. 151 (1921). In that case, a female passenger on a train was assaulted in her sleeping compartment. She rang the bell for help and screamed, but it took several minutes for the porter to finally come. The assailant escaped and, after the porter left, the assailant returned and began assaulting the plaintiff again. Again she rang the bell and screamed, but it was several minutes before the porter came. The Supreme Court held that the railroad was not liable for the first attack but, thereafter, was on notice of the person with dangerous propensities and was liable for the second attack. This is still the law in Florida. See and compare the following authorities: Wometco Theatres Corporation v. Rath, 123 So.2d 472 (Fla.3d DCA 1960); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla.2d DCA 1968); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1979); Graham v. Great Atlantic & Pacific Tea Company, Inc., 240 So.2d 157 (Fla. 4th DCA 1970).

Therefore, the final judgment on the pleadings be and the same is hereby affirmed.

Affirmed.

      . As far as the pleadings revealed, the unknown assailant could have entered the bus at any stop along the route, possibly one where there had never been a previous assault. To hold the County liable under the allegations of these pleadings would make the County an insurer, with absolute liability to all passengers.

      . In this connection, also see the following: Langer v. City of New York, 9 Misc.2d 1002, 171 N.Y.S.2d 390 (1958); City of Dallas v. Jackson, 450 S.W.2d 62, S.Ct.Tx (1970); Letsos v. Chicago Transit Authority, A1 Ill.2d 437, 265 N.E.2d 650 (1970); Aime v. Hebert, 282 So.2d 566 (La.App.1973).


text:
    Ramon NIEVES and Delia Nieves, Appellants, v. ALEJANDRO HUMBERTO PEREZ, Individually, and Industrial Fire and Casualty Insurance Company, Appellees.
    No. 79-609.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Jack J. Weiss and Steward M. Gold, Miami, for appellants.
    Broad & Cassel and Anthony S. Paetro, Bay Harbor Island, Goodhart & Rosner, Miami, for appellees.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, 98 (1922); Musachia v. Terry, 140 So.2d 605, 608 (Fla.3d DCA 1962); and see Seaboard Air Line R. R. Co. v. Ellis, 143 So.2d 550 (Fla.3d DCA 1962).


text:
    James Elmer BOUGHEY, Appellant, v. Dorothy Ann BOUGHEY, Appellee.
    No. 79-660.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Hersh & Bernstein and Brian R. Hersh, Miami, for appellant.
    Mason & Meyerson and William John Mason, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Snider v. Snider, 375 So.2d 591 (Fla. 3d DCA 1979); Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976).


text:
    Jacinto VASQUEZ, Appellant, v. DEPARTMENT OF BUSINESS REGULATIONS, Appellee.
    No. 79-897.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.

      Ronald S. Golub, Miami, for appellant.
    David M. Maloney, Tallahassee, for appel-lee. ’
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The appellant, a jockey, because of- a charge of “careless riding,” was suspended for five days by the stewards at the race track where he was working. The suspension was upheld by the Director of the Division of Pari-Mutuel Wagering after a de novo hearing. Following the hearing, the Director issued a penalty which exceeded that given by the stewards in that the Director barred the appellant from the grounds of the track for five days and also fined him $200.00.

On this appeal, it is argued that the actions of the Director were a denial to the appellant of due process of law. It is first urged that there was denial of due process because one of the stewards who found the appellant guilty of careless riding did not view the race, but relied upon films of the incident and the testimony of witnesses presented. We have examined the applicable statute and the regulations to which our attention has been directed by the briefs, and we find no deprivation of due process.

The second point urges that the appellant was deprived of due process because he was obliged to accept a de novo review rather than an “appeal” as provided by the Florida Governmental Reorganization Act, Section 20.16, Florida Statutes (1977). We are unable to agree with the appellant that it was improper for the Director to conduct a de novo proceeding, as such a proceeding is, we believe, authorized by the rules. See Fla.Admin.Code Rule 7E-1-.07; and Section 120.57(1), Florida Statutes (1977). Having conducted a de novo hearing, it was not a denial of due process for the Director to prescribe the proper penalty pursuant to Section 550.02(3), Florida Statutes (1977), and Fla.Admin.Code Rule 7E-1.02(47).

Affirmed.

      . § 550.02(3), Fla.Stat. (1977).


text:
    LOCAL DATA COMPANY and Robert Lee, Appellants, v. INNOVATIVE ELECTRONIC SYSTEMS, INC., Appellee.
    No. 79-899.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Mitchell M. Goldman and Warren M. Sa-lomon, Miami, for appellants.
    Christopher C. Cloney, Fort Lauderdale, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Appellants/defendants, Local Data Company and Robert Lee, seek review of the trial court’s orders denying their respective motions to quash service of process under Florida’s long-arm statutes, Sections 48.193 and 48.194.

We find that the trial court’s denial of the motion was proper as to service on Robert Lee; however, it was improper as to the other defendant. A review of the ap-pellee/plaintiff’s complaint clearly shows that there are insufficient allegations to justify the employment of the method of service prescribed by our long-arm statutes. See, Electro Engineering Products v. Lewis, 352 So.2d 862 (Fla.1977); Seng Co. v. Burke, 366 So.2d 533 (Fla. 3d DCA 1979); P. S. R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978); Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976.)

Accordingly, we affirm the trial court order which in effect found proper service had been executed on Robert Lee. The order relating to service upon Local Data Company must be reversed and remanded with directions that the plaintiff be permitted to amend the complaint to include sufficient allegations to show entitlement to properly secure service by a long-arm statute.

Affirmed in part and reversed and remanded in part.


author: SCHWARTZ, Judge.

text:
    Arnaldo Fernandez BATISTA and Rock & Fill Corporation, a Florida Corporation, Appellants, v. WALTER & BERNSTEIN, P.A., a Professional Association, Appellee.
    No. 79-967.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    G. Frank Quesada, Coral Gables, for appellants.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and J. T. Haley, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The defendants below appeal from a judgment entered against them after a jury verdict for the plaintiff-appellee, a law firm, in an action to recover on an express oral contract for the rendition of legal services. We affirm.

By far the most substantial point raised by the appellants claims error in the trial judge’s refusal to instruct the jury that the plaintiff had the burden of establishing the oral agreement by “clear and convincing” evidence rather than merely the “greater weight” or preponderance of the evidence, as the jury was actually charged in accordance with standard jury instructions 3.7 and 3.9. The law on this issue has very recently and very accurately been described as “rather unclear.” Rossmoor Corp. v. Tri-County Concrete Products, Inc., 375 So.2d 896, 897, n. 2 (Fla. 4th DCA 1979). In resolving the uncertainty, we have concluded that the “greater weight” test applies in an action, like this one, to recover damages for breach of an alleged oral agreement, and that Sultan v. Jade Winds Construction Corp., 277 So.2d 574, 575 (Fla. 3d DCA 1973), and Shell’s City, Inc. v. Westerman, 257 So.2d 276, 279 (Fla. 3d DCA 1971), which indicate otherwise, are not authoritative on the question.

A close analysis of these decisions reveals that the language which suggests, as stated in Sultan at 277 So.2d 576, that “more than a preponderance of the evidence is required to establish an oral contract” is in each case dictum. Furthermore, the force of the statement in the Westerman case was, at the very least, substantially dissipated by the supreme court’s quashal of our decision in that case in Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). Much more important, however, is the fact that both Sultan and Westerman are based entirely upon cases which simply do not support the broad statement of the law for which they are cited. Sultan relies solely, and Wester-man primarily, upon Alexander v. Bess, 123 Fla. 713, 167 So. 533 (1936). The Alexander case, however, as well as the only decision which it cites, Williams v. Bailey, 69 Fla. 225, 67 So. 877 (1915), both involve the right to the specific performance of an oral agreement for the conveyance of an interest in realty. The same is true of another of the three cases cited in Westerman, Miller v. Murray, 68 So.2d 594 (Fla.1953), and of Hi-Acres Groves, Inc. v. Bassett, 338 So.2d 1076, 1077 (Fla. 4th DCA 1976). That the rule expressed in these decisions should not be applied across-the-board to all actions based upon oral contracts is demonstrated by Trickey v. Stone, 152 So.2d 748 (Fla. 1st DCA 1963). There, in a thoughtful and persuasive opinion, the court squarely held that the preponderance of evidence, rather than the clear and convincing test applied in a chancery action based upon an oral partnership agreement. Williams v. Bailey, supra, and Alexander v. Bess, supra, were correctly cited at 152 So.2d 750 as reflecting only a narrow exception to the general preponderance rule that

“. . . where an action is brought to enforce an oral contract pertaining to the conveyance or establishment of an interest in land the evidence must be clear, full, and free from suspicion. Williams v. Bailey, 69 Fla. 225, 67 So. 877; Alexander v. Bess, 123 Fla. 713, 167 So. 533.”

Our conclusion that the greater weight rule governs a damage suit like the case at bar is supported, if not required, by Rigot v. Bucci, 245 So.2d 51 (Fla.1971). Theré the supreme court, referring to the same standard jury instructions which were given in this case, held that “only a preponderance or greater weight of the evidence is required to establish fraud, whether the action is at law or in equity.” 245 So.2d at 53. See also Blaeser Development Corp. v. First Federal Savings and Loan Ass’n of Martin County, 375 So.2d 1118 (Fla. 4th DCA 1979). In so holding, the court specifically overruled another exception to the preponder-anee rule referred to in Trickey v. Stone, supra, under which clear and convincing evidence was required to establish fraud in a chancery case. In Rigot, the court found no “sound reason for any distinction between law and equity so far as the proof requisite to establish fraud is concerned.” 245 So.2d at 52-53. Similarly, we see no basis either in common sense, or, as has been noted, in the authorities, for imposing a higher degree of proof in an action seeking damages for breach of an oral agreement than in one based upon what is, if anything, the more serious and difficult-to-prove allegation of fraud. See also Transammonia Export Corp. v. Conserv, Inc., 554 F.2d 719 (5th Cir. 1977) (preponderance test applicable to oral contract governed by Florida U.C.C.); cf. Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977) (dictum) (“It is elementary that in order to recover on a claim for breach of [an oral] contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, . . .”). For these reasons, we hold, expressly receding from the contrary language in Sultan v. Jade Winds Construction Corp., supra, and Shell’s City, Inc. v. Westerman, supra, that the trial judge was eminently correct in instructing the jury that the plaintiff was required to prove its case only by “the greater weight of the evidence.”

The thrust of the defendants’ remaining points on appeal is the claim that the trial court admitted evidence, and permitted the case to be tried, on a theory which was not reflected in the complaint. We need not consider whether this was in fact the case because (a) even assuming a departure from the pleadings, there was nó abuse of discretion in admitting the evidence in question, Fla.R.Civ.P. 1.190(b); and (b) by failing below to move for a continuance on the ground that they were surprised by the alleged change in theory, the defendants are precluded from now contending that they were prejudiced by the rulings in question. See 6 Wright and Miller, Federal Practice and Procedure, § 1495 (1971), and cases cited at notes 16-17.

Affirmed.

      . See Blaeser Development Corp. v. First Federal Savings and Loan Ass’n of Martin County, 375 So.2d 1118 (Fla. 4th DCA 1979).

      . The third case cited in Westerman, Purvis v. Malloy, 129 Fla. 191. 176 So. 71 (1937), involved the closely related issue of the degree of proof required to establish an oral gift or sale of land between parent and child so as to support an ejectment proceeding.


text:
    Robert D. WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-997.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    George & McQuade and Walter F. McQuade, North Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The defendant takes this appeal from an adjudication of guilt for grand larceny in a non-jury trial. He contends that the evidence was insufficient to convict him of grand larceny. In ancillary points, he urges error upon specific determinations of fact made by the trial court upon the basis that the record does not support these determinations.

In brief, and viewed in the light most favorable to the verdict of the finder of fact, the defendant took money in the form of a check made payable to an inmate of the nursing home operated by the defendant. He then used the proceeds of that check for the payment of the expenses of the nursing home.

It is the defendant’s contention that because the victim may have been properly charged with a portion of the proceeds of the check for his own support and because a portion of the funds are still noted on a record of the nursing home as payable to the victim, there can be no larceny. This position is not effective for reversal on this record because under the facts of this case, the defendant was guilty of grand larceny at the time he converted the victim’s money to the use of the nursing home operated by the defendant. It is not necessary to the crime of larceny that the property which is the subject of the larceny be appropriated to the use of the defendant. See the rule in Ricard v. State, 181 So.2d 677, 679 (Fla. 3d DCA 1966); and Section 812.021(1), Florida Statutes (1977).

We have examined the record in the light of the defendant’s arguments on each of the points presented and find that the record supports the adjudication of guilt.

Affirmed.


author: NESBITT, Judge. SCHWARTZ, Judge

text:
    The STATE of Florida, Appellant, v. Omar De-Jesus MAYOR, Appellee.
    No. 79-1122.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.

      Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Emilio De Le Cal, Miami, for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The state appeals from an order which dismissed its second information filed against appellee on the ground that the prosecution thereon was barred by the defense of former jeopardy.

Appellee, defendant below, was charged by an information filed January 25, 1979, with one count of carrying a concealed firearm, and one count of unlawful possession of a firearm by a convicted felon. Thereafter, on motion of the defendant, a statement of particulars was filed in which it was mistakenly alleged that each offense occurred at 2 p. m. on January 11, 1979. At trial, the testimony established that the commission of the offenses actually occurred at 2 a. m. on January 11, 1979. Claiming that the variance as to the time of the occurrence of the alleged offenses was material, the defendant moved for dismissal upon the ground that the state’s proof departed from the bill of particulars in specifying an incorrect time of day for the offense. The defendant contended that the variance was directly prejudicial to his claim of alibi. In that posture, the trial court had no alternative but to grant defendant’s motion to dismiss. Crowell v. State, 238 So.2d 690 (Fla.3d DCA 1970).

On March 19, 1979, the state filed a second information again charging the defendant in Count I, with carrying a concealed firearm, and, in Count II, with unlawful possession of a firearm by a convicted felon. In addition, the state filed a new discovery response, this one correctly stated the time of the offense as 2 a. m. on January 11, 1979. Defendant moved to dismiss the information on the ground that he had been previously placed in jeopardy for the same offense. The trial court granted defendant’s motion based on former jeopardy and this appeal ensued.

In State v. Beamon, 298 So.2d 376, 379-80 (Fla.1974), the Supreme Court delineated the elements necessary to sustain a plea of former jeopardy; to wit:

(1) there was a former prosecution in the same state for the same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; and (4) that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.

Applying the above criteria to the uncontro-verted facts, the trial court erred in granting the motion to dismiss based on the plea of former jeopardy. The true test is whether the defendant was charged with “the same offense” in the subsequent information as that upon which he was acquitted in the first. In this case, the state did charge, by different informations, two separate offenses occurring at materially different times. The defense of former jeopardy therefore does not apply. In Beamon, the Supreme Court observed:

It is the defendant — not the State — • who is estopped. The defendant is es-topped by virtue of his inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the date of the alleged offense he was acquitted of it in the first trial.

298 So.2d at 378.

Nor can the defendant take refuge in our decision of State v. Witherspoon, 366 So.2d 487 (Fla.3d DCA 1979). In Witherspoon, the majority opinion distinguished Beamon, stating:

In the present instance, the bill of particulars to the first information was essentially correct and the variance was, at most, a matter of two hours. There is no doubt that the same crime is alleged in each of the informations here filed against the defendant.

366 So.2d at 488. In the instant case, the statement of particulars to the first information was admittedly incorrect. The time between the occurrence of the offense charged in the first information and that charged in the second information was some twelve hours. Moreover, the offense upon which the defendant was acquitted was alleged to have occurred during the daylight hours while the offense to which a plea of former jeopardy has been sustained occurred during the “nighttime”. In the vernacular, there is as much difference between the first and second informations as there is between “day and night”. The materiality is apparent. Obviously, the defendant was not charged with “the same offense” in the subsequent information.

It has long been the rule that former jeopardy does not bar prosecution for an offense when a previous accusatory document mistakenly identified one of the essential elements of an offense and acquittal under the prior accusatory document has been obtained. State v. Bentley, 81 So.2d 750 (Fla.1955); State v. Cootner, 60 So.2d 734 (Fla.1952).

For the foregoing reasons, the judgment appealed from is reversed.

SCHWARTZ, Judge

(specially concurring).

In my judgment, this case is not meaningfully distinguishable from either State v. Witherspoon, 366 So.2d 487 (Fla.3d DCA 1979) or State v. Katz, 372 So.2d 201 (Fla.3d DCA 1979). Because, however, I agree with Judge Hubbart’s dissenting opinions in those cases, I concur in the decision to reverse the judgment below.

      . The supreme court has granted petitions for direct conflict certiorari in both Witherspoon and Katz but has not yet ruled on the merits.