author: ALDERMAN, Justice. ENGLAND, Justice,

text:
    STATE of Florida, Petitioner, v. Tony Howard WEBB, Respondent.
    No. 59346.
    Supreme Court of Florida.
    May 14, 1981.

      Jim Smith, Atty. Gen., and Andrea T. Mohel and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Fourth District, in Webb v. State, 384 So.2d 210 (Fla. 4th DCA 1980), which conflicts with Hetland v. State, 387 So.2d 963 (Fla.1980), and Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980). The issue before us is whether information given the police from an apparently anonymous informant under the totality of the circumstances provided a reasonable basis for the stop and, since a valid frisk does not inevitably follow from every valid stop, we must separately determine whether the frisk was reasonable. We hold that the stop was proper because the information in the BOLO carried sufficient indicia of reliability so as to give the pólice officers a reasonable suspicion founded in articulable facts that Webb was the perpetrator of the robberies. We further hold that the frisk was proper since the officers based on the information in the BOLO had reason to believe that they were dealing with an armed and dangerous individual.

The factual basis for the stop and the frisk and for the subsequent arrest is as follows. At a daily briefing session by their superiors, the arresting police officers were told to be on the lookout for an armed robbery suspect who was described as a white male, five feet nine inches, one-hundred thirty pounds, thin build, long blond hair in a ponytail, who had committed two armed robberies at two named drug stores on the two previous days. The officers were further told that the robbery suspect was carrying a black colored gun. They wrote all this information on the back of a “hot sheet” at the time they received it. Approximately six hours after this briefing, the officers saw Webb walking down a street approximately two miles from the scene of the robberies. They stopped him because he matched the BOLO description. Because they had been advised that the robbery suspect was carrying a gun, one of the officers touched Webb’s shirt at the waist and found a concealed, fully loaded .32 caliber pistol. Webb was then arrested for carrying a concealed firearm. Later at a lineup, Webb was not identified as the perpetrator of the armed robberies, and no robbery charges were filed against him. He was, however, charged and convicted of the crime of carrying a concealed firearm.

After a hearing on the motion to suppress held to determine whether the officers at the time of the stop had a reasonable suspicion founded in articulable facts that Webb was the perpetrator of the armed robberies and to determine whether the officers were justified in believing that Webb was armed, the trial court denied Webb’s motion to suppress the gun. The court concluded that the initial stop was reasonable and that the officers would have taken an unnecessary risk of a shooting if they had sought additional information from Webb prior to the frisk.

The district court, relying primarily on St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978), reversed on the basis that the BOLO was unreliable and was insufficient to support a reasonable suspicion on the part of the police officers that Webb was the armed robbery suspect. The district court emphasized that there was no testimony at the suppression hearing concerning the source of the information and that when the police stopped Webb, there was nothing suspicious in his appearance or conduct.

Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), decided over a decade ago, the test for the limited intrusion of a stop and frisk has been reasonableness rather than probable cause. Terry created an exception to the probable cause requirement and thereby granted police officers a greater right to stop and frisk a suspect. To determine reasonableness, the Supreme Court in Terry balanced the limited violation of an individual’s privacy against the opposing interests in crime prevention and detection and the police officer’s safety. To justify a stop, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably justify the stop. The Court announced the following objective standard by which a reviewing court should judge the reasonableness of the intrusion: “[WJould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. at 1880.

A valid stop does not necessarily mean that there can be a valid frisk. Under the Terry exception, a law enforcement officer, for his own protection or the safety of others, may conduct a pat down to find weapons that he reasonably believes or suspects are then in possession of the person whom he has stopped. Weighing this limited right to frisk, the Supreme Court found the State’s proffered justification — the safety of the officer — both legitimate and weighty. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). As pointed out in Terry: “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” 392 U.S. at 23, 88 S.Ct. at 1881. When a Terry stop is made, in order to validly frisk the person stopped, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27, 88 S.Ct. at 1883. However, “[njothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.” Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 343-344, 62 L.Ed.2d 238 (1979).

Four years after Terry, the Supreme Court, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), further explained the test of reasonableness as applied to a stop and frisk based on information from an informant. The Court held that an informant’s tip, bearing sufficient indicia of reliability, could serve as the basis for reasonable suspicion that criminal activity was afoot. The Court, in reaching its decision, expressly rejected the defendant’s argument that reasonable cause for a stop can only be based on an officer’s personal observations. It also held that the frisk was valid since the officer had ample reason to fear for his safety because the defendant was reported by the informant to be carrying a concealed weapon. Citing with approval the decision of the United States Court of Appeals, Eighth Circuit, in United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970), the Supreme Court said: “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. at 146, 92 S.Ct. at 1923.

United States v. Unverzagt involved a stop and frisk based on a tip from an unknown informant who was never located and whose personal reliability had not been established. The circuit court of appeals held that the information from this unknown informant could serve as a basis for reasonable suspicion and that the officers had a limited right under the circumstances to stop the defendant for investigation. The court further held that the information received relative to defendant’s being armed constituted a reasonable basis under Terry for the frisk for weapons.

Until this Court’s decision in Hetland v. State, which expressly adopted in its entirety the decision of the District Court of Appeal, Second District, in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), it was not clear whether under Florida law an anonymous tip could serve as the basis for reasonable suspicion. In Hetland, we held that Florida’s “stop and frisk” law imposes no greater standard than the fourth amendment. Employing the federal standards, we concluded that a valid stop and frisk may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances. We expressly disapproved St. John v. State insofar as it was inconsistent with Hetland.

In Hetland, two deputies were informed by radio dispatch that an anonymous phone call from an unknown female had been received, advising the authorities that a man named Hetland was on his way to a particularly named bar to shoot someone. The caller described Hetland’s features and reported that he was carrying a silver revolver with a black handle. The deputies went to the bar and observed Hetland who fit the caller’s description. Hetland’s conduct, however, was in no way suspicious. They approached Hetland, asked him his name, and, observing the butt of a gun protruding from Hetland’s waistband, one of the deputies reached under Hetland’s shirt and took the revolver. He was then arrested for carrying a concealed firearm. Because of the earlier Second District Court of Appeal decision in State v. Hendry, 309 So.2d 61 (Fla. 2d DCA 1975), the trial court granted Hetland’s motion to suppress the firearm on the basis that it was obtained from him by an unlawful search and seizure. On appeal, the district court expressly receded from its earlier decision in Hen-dry and approved the stop and the frisk.

This Court, through its adoption of the district court’s opinion in Hetland, held that the fact that the information serving as the basis for the police suspicion comes from an anonymous tip does not in and of itself invalidate a stop based on that information. Our adopted opinion in Hetland discusses the indicia of reliability by which an anonymous tip is judged. Rather than looking just to the source of the tip or an after-the-fact statement directed to the reliability of the source as the Fourth District suggests in the present case, Hetland holds that we may also look to the information provided by the tip and determine its reliability by the specificity of the information and its corroboration by prompt police action finding an individual in the general area of a named location who precisely fits the description given in the BOLO. However, as Hetland points out, a vague description would not justify a law enforcement officer in stopping every individual who might possibly fit that description.

The decision of the District Court of Appeal, First District, in Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980), decided prior to our adoption of the district court’s decision in Hetland is consistent with Hetland. In Byrd, patrolling officers had received information over the radio based on an unverified informant’s tip that a white female had been abducted by two black males and had been placed in a white Lincoln Continental automobile at a certain location in Tallahassee. They later received a BOLO pertaining to a purse snatching in this same area by two black males similar to the description of those in the first BOLO. The officers stopped a white Continental, and, while questioning the driver, one of the officers saw what he thought was a purse in the back seat of the Continental. Upon gaining Byrd’s consent to check the purse, the officers opened the car door and saw marijuana roaches in an open ashtray. They thereupon arrested Byrd and searched the automobile. Byrd argued that his initial detention was invalid because it was based upon an unverified anonymous tip. The First District held that the articulable facts which the officers should be able to point to at a suppression hearing to show that they were warranted in believing that criminal activity was afoot need not be directly observed by the police officer. Because the automobile and its occupants fit the specific description furnished in the BOLO and because the detaining officer was able to articulate facts at the suppression hearing based on the BOLO which gave rise to his suspicion that Byrd was involved in criminal conduct, the court held that the stop was valid.

Since rendering its decision in the present case, the Fourth District has modified its view regarding BOLOs based on anonymous tips. Adopting the rationale of Hetland and State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 832 (Fla. 1978), in Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 770 (Fla.1980), it held that, based upon an anonymous call to police advising that defendant was on a certain street corner attempting to sell drugs, the police had a perfect right, and perhaps a duty, to investigate the call. The court, although finding the stop valid, held that the frisk was invalid because there was no information to suggest that Isham was armed. It further stated, however, that had the anonymous tip included information that Isham was armed, the frisk would have been justified. See also Romanoff v. State, 391 So.2d 783 (Fla. 4th DCA 1980), wherein the Fourth District upheld a stop and a frisk based on information from an anonymous tip contained in a BOLO.

In Hetland we were confronted with the issue of whether a stop was valid and we utilized the standards announced by the Supreme Court of the United States to hold that it was. Also, through adoption of the district court opinion, we held that for the same reason the stop was valid, so was the frisk. The standard for evaluating the reasonableness of a frisk is whether the officers were justified in believing that the suspect was armed and dangerous. If the tip bears sufficient indicia of reliability and it relates that the suspect is armed and dangerous, then the officer, acting on the tip, is justified in his belief that the suspect is carrying a weapon and may frisk him. For the same reasons that we held that there need not be personal observation by the law enforcement officer of criminal conduct, we also hold that what is required for a valid frisk is not probable cause but rather a reasonable belief on the part of the officer that a person temporarily detained is armed with a dangerous weapon.

The Florida stop and frisk law does employ the term probable cause as the basis for a valid frisk, but this term is not utilized in the same sense that the term is used when referring to arrests or search warrants. This is evident from the bill’s title. It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute. Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided. To determine legislative intent, we must consider the act as a whole — “the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject.” Foley v. State, 50 So.2d 179, 184 (Fla.1951) (emphasis added). In determining legislative intent, we must give due weight and effect to the title of section 901.151, Florida Statutes (1977), which was placed at the beginning of the section by the legislature itself. The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent. Berger v. Jackson, 156 Fla. 251, 768, 23 So.2d 265 (1945).

Applying these rules of statutory construction to section 901.151, Florida Stop and Frisk Law, there is no doubt that the legislature intended to adopt the federal standards for stop and frisk, and not any stricter standards. This was made abundantly clear in its title where the legislature says that section 901.151 is:

AN ACT relating to “stop and frisk”; authorizing a law enforcement officer to temporarily detain and question a person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a criminal offense; permits search of the person detained, to the extent necessary, to disclose if said person is armed, when the officer reasonably believes that said person is armed with a dangerous weapon; provides that said person shall not be detained more than is reasonably necessary for such search unless an arrest is made; providing an effective date.

Ch. 69-73, Laws of Florida. (Emphasis added.)

Viewing section 901.151 in the context of its stated purpose to permit officers to temporarily detain and question persons under circumstances reasonably indicating criminal activity, past, present, or imminent, and to frisk where they have reasonable belief that the person detained is armed, it would be unreasonable and contrary to the legislature’s intent to require an officer, before he may frisk a person whom he reasonably believes is armed with a dangerous weapon, to have the same probable cause that would be required for an arrest or for a search warrant. If the officer has “probable cause” to believe that a suspect is carrying a concealed weapon, he need not limit his search of the suspect to the frisk allowed under Terry. Under those circumstances, he could immediately arrest and completely search the suspect. It is evident that the Florida stop and frisk law does not require probable cause in the same sense that probable cause is required for a search warrant or for an arrest.

Thus we hold that so long as an anonymous tip upon which a BOLO is based contains sufficient indicia of reliability, then a stop and a frisk based on the tip will be valid. We note, however, that the validity of a stop and frisk can only be decided in the concrete factual context of each individual case. Sibron v. New York.

Applying the standards of reasonableness for a valid stop and frisk to the present case, we hold that the police officers were justified in relying on the BOLO as a basis for their articulated reasonable suspicion that Webb was the robbery suspect about whom they had been alerted to be on the lookout for earlier the same day and as a basis for their reasonable belief that Webb was armed and dangerous. The trial court so found, and its rulings on the motion to suppress are clothed with a presumption of correctness and must be accepted if the record contains evidence to support them. McNamara v. State, 357 So.2d 410 (Fla.1978). The evidence at the suppression hearing and the inferences derived therefrom interpreted in a manner most favorable to sustain the trial court’s findings support the trial court’s ruling that the stop and frisk of Webb under the totality of the circumstances was reasonable, and the district court erred in reversing the trial court’s order denying the motion to suppress.

The Fourth District believed this case to be controlled by its prior decision in St. John v. State because there was no testimony at the suppression hearing concerning the source of the information contained in the BOLO. This is contrary to our holding in Hetland. It also noted that the officers personally observed nothing suspicious in Webb’s conduct at the time of the stop. We held in Hetland that an officer’s personal observation of suspicious conduct is not a prerequisite to the officer’s having a reasonable suspicion founded in articulable facts.

The apparently anonymous information in the BOLO upon which the officers acted in the present case bore sufficient indicia of reliability. The description of the robbery suspect, which the officers immediately wrote down, was specific, and the information was corroborated when the officers acted promptly and found Webb who matched the description in the same general vicinity where the two robberies had occurred on the two previous days. Based on this information bearing sufficient indicia of reliability to warrant a stop, they were justified in believing that he was armed. Facts were articulated at the suppression hearing upon which the officers founded their suspicion. Under the totality of the circumstances, we hold that the stopping and the frisking of Webb was valid and that the trial court correctly denied the motion to suppress.

To hold otherwise would place in jeopardy the lives of police officers who have made a valid stop and who have reason to believe that the suspect is armed. As Justice Harlan stated in his concurring opinion in Terry v. Ohio, “[t]here is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” 392 U.S. at 33, 88 S.Ct. at 1886. Upon the information known to the officers, failure to have stopped Webb would “have been poor police work indeed,” Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. at 1881, and failure to frisk could have cost the officers their lives.

Accordingly, the decision of the district court is quashed, and the cause is remanded with directions to reinstate the trial court’s order denying the motion to suppress and to affirm the judgment of the - trial court.

It is so ordered.

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

ENGLAND, J., concurs with an opinion, with which SUNDBERG, C. J., concurs.

McDONALD, J., dissents.

ENGLAND, Justice,

concurring.

Reasonable men could possibly differ as to whether the anonymous tip and surrounding circumstances bore sufficient indi-cia of reliability to justify Webb’s “stop” in this case. The specificity of the information given is important, as are the time and space relationships between the tip and the stop.

Based on testimony at a suppression hearing, the trial judge thought the indicia were reliable and that, I submit, ought to end the matter in this case. The fact that appellate judges think otherwise is irrelevant, for by no stretch of imagination can it be said the trial judge abused his discretion to evaluate the evidence and rule on the reliability of the tip. See McNamara v. State, 357 So.2d 410, 412 (Fla.1978).

SUNDBERG, C. J., concurs.

      . At the time the district court decided the present case, it did not have the benefit of our decision adopting the decision of the District Court of Appeal, Second district, in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979).

      . At the suppression hearing, there was no testimony concerning the source of the description of the robbery suspect. We assume, for purposes of disposition of this cause, that the tip was anonymous because the State did not prove otherwise.

      .The fact that Webb, after his arrest, was not charged with the robberies in no way affects the validity of the stop and frisk that resulted in his arrest for carrying a concealed firearm.

      . The Supreme Court explained that as a practical matter, the type of police conduct with which it was dealing in Terry — “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” — could not be subjected to the warrant requirement. Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879.

      . See. e. g. State v. Hendry, 309 So.2d 61 (Fla. 2d DCA 1975), and St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978).

      . This is confirmed in the following historical note by the legislative reference bureau:
      Senate Bill 125, Chapter 69-73, reiterates the circumstances under which a law enforcement officer may reasonably temporarily detain a person suspected of breaking the law, or about to break the law, as enunciated in the case of Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and is given the short title “Florida Stop and Frisk Law.” While this statute does nothing more than set forth the circumstances under which a reasonable stopping, detaining and searching of a suspect may be carried out by a law enforcement officer, it will serve as a guideline to better inform lawmen how to successfully start a preliminary investigation into a crime that is being committed or is about to be committed. This act is effective October 1, 1969.
      Florida Legislative Service Bureau, 1969 Digest of General Legislation (July 1969).

      . Validating a frisk based on information obtained from an unknown informant, the United States Court of Appeals, First Circuit, in Ballou v. Massachusetts, 403 F.2d 982 (1st Cir. 1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969), acknowledged the problems that could arise with the use of anonymous tips as the basis for justifiable suspicion for a stop and frisk but countered:
      [T]o the argument that tips may stem from informants motivated by spite or desire for revenge, we observe that even “reliable” or paid informers may be so motivated and that the critical question is the accuracy of the tip, to be assured both by its specificity and capability of being substantially corroborated by observation. Finally, of course, there is the possibility that an unscrupulous officer could manufacture a tip which would allow him to do what he otherwise could not do. But even in cases of tips from “reliable” informers, there is ordinarily no verification of the police testimony of reliability; there is always the necessity of relying to some extent on the good faith of law enforcement officials. This is true even where an officer testifies, as in Terry, to having observed unusual conduct on the street. In all such cases, of course, the testimony of the police is subject to cross-examination. Each case must, in the final analysis, be decided on its own facts.
      403 F.2d at 986.

      . State v. Hetland, 366 So.2d 831, 839 (Fla.2d DCA 1979), approved, 387 So.2d 963 (Fla.1980).

      . The district court thought the time of the stop “remote” from the prior robberies and the place of the stop “distant”. Webb v. State, 384 So.2d at 211. Those conclusions are not supported by the record. No evidence was presented as to the range of the apprehending officers’ “beat” in metropolitan Ft. Lauderdale. One of the two drugstores previously robbed was said to be about two miles from the place of Webb’s stop. A conclusion by appellate judges that the stores were “distant” from the stop simply is not warranted. As regards the time being “remote”, the arresting officer testified that the subject of the BOLO had committed one drugstore robbery the day before and one the day before that. The time was clearly not remote.


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    Doretha PENNINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1302.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Richard L. Jorandby, Public Defender and Wilbert Stevenson, Jr., Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

ON PETITION FOR REHEARING

Appellant was sentenced to three years probation with a special condition that she participate in a drug rehabilitation program as directed by her probation supervisor. Later, appellant violated her probation and was sentenced to five years imprisonment with credit for one hundred three (103) days time previously served. No credit was allowed appellant for the time spent in the drug rehabilitation program. The propriety of the court’s denial of her motion to vacate and set aside her sentence because of the failure to allow her credit for the time spent in the drug rehabilitation program was the sole question presented on appeal. We affirmed that decision without opinion.

On petition for rehearing it is suggested that we should state our reasons for affirming because the Second District Court of Appeal in two cases has held to the contrary on the same point of law. We would respond by suggesting that the judges were of one mind and the question involved was so clear that an extended discussion of the issue was not warranted. In that posture this case seemed a classic for a per curiam affirmed decision without opinion. Newmons v. Lake Worth Drainage District, 87 So.2d 49 (Fla.1956). This should particularly have been obvious to appellant from our holding in Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977), wherein we held that time spent in the state mental hospital was not to be credited upon appellant’s sentence because the statute mandating credit refers only to “credit for all of the time he spent in the county jail before sentence.” Thus, it is clear we do not agree with the two Second District cases cited by appellant.

Accordingly, the Petition for Rehearing is DENIED.

LETTS and MOORE, JJ., concur.

      . Graham v. State, 366 So.2d 498 (Fla. 2d DCA 1979); Johnson v. State, 334 So.2d 334 (Fla. 2d DCA 1976).

      . Sec. 921.161, Florida Statutes (1975).


author: SHARP, Judge.

text:
    Kilven TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. MM-216/T1-26.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    James B. Gibson, Public Defender and Ronald K. Zimmet, Chief, Appellate Division, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

As a result of a “plea bargain” appellant entered a nolo contendere plea to two counts of burglary and attempted burglary. He was adjudicated by the circuit court and committed for two years to the Department of Offender Rehabilitation of Florida. He specifically reserved his right to appeal the court’s denial of his motion to dismiss on the grounds the court lacked jurisdiction to adjudicate and sentence him as an “adult” because he was only 14 years old at the time the offenses were committed, and the juvenile court order of transferal “waiving” him over to the adult criminal system contained no findings of fact nor statement of reasons to justify the transfer.

The transfer order, dated June 14, 1978, was a “form” containing blanks to be filled in with the defendant’s name, the crimes with which he was charged, and the date. The printed form portion of the order recited “there is probable cause to believe that said child is guilty of such offenses and that it is in the best interest of the public welfare that said child be transferred to the custody of the Sheriff of Marion County, Florida, to be dealt with as an adult.. . . ”

At the waiver hearing the attorneys stipulated that probable cause was established on two charges of burglary and larceny of firearms. The Waiver Hearing Report filed by the Department of Health & Rehabilitative Services detailed the defendant’s antisocial behavior and poor background and the parties agreed to its accuracy. The defendant had a long history of criminal offenses, commencing when he was eleven years old. They included armed robbery, assault and battery, larceny and criminal mischief. He was placed on probation and committed for a 6 month period to a state training school. The counselor said the defendant’s prognosis for rehabilitation in a state training school was “poor” but she recommended against waiver because of the defendant’s young age, small size, immaturity, and low intelligence. She felt he was unable to understand the seriousness of his offenses. The state argued the defendant was “hiding behind” the juvenile system and was contemptuous of society and authority as shown by his school record and his criminal behavior. Appellant confessed to stealing firearms, but refused to say what he did with them.

At the time the waiver hearing was held in this case, section 39.09(2)(c), Florida Statutes (1977) stated:

The court shall conduct a hearing on all such motions for the purpose of determining whether a child should be transferred. In making its determination the court shall consider:
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
4. The prosecutive merit of the complaint, i. e., whether there is evidence upon which a grand jury may be expected to return an indictment.
5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged crime are adults who will be charged with a crime.
6. The sophistication and maturity of the juvenile, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.
7. The record and previous history of the juvenile, including previous contacts with the Division of Youth Services, other law enforcement agencies, and courts, prior period of probation or prior commitments to juvenile institutions.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if he is found to have committed the alleged offenses, by the use of procedures, services, and facilities currently available to the court.

The record shows evidence was submitted .on most of these points. Section 39.09(2)(f) further provides: “When a child is transferred for criminal prosecution, the court shall set forth in writing its reasons for the transfer.” The order in this case contains no .such statement of reasons beyond the conclusions in the printed form.

The waiver order in this case precludes effective appellate review, and it fails to comply with the requirements of the statute. Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979). The court should state its reasons for transferring the child in each case. Each case will be different, and the court may give greater weight to some of the statutory criteria than to others. The later version of section 39.09(2)(e), Florida Statutes (1979), is even more demanding. The court entering a transfer order under the newer statute is required to “include consideration of, and findings of fact with respect to, each of the foregoing criteria.” (Emphasis supplied.) It also mandates that the court “render an order including a specific finding of fact and the reasons for decision to impose adult sanctions.” Although not retroactively applicable to this case, this later statute is indicative of legislative intent that the court must state its actual reasons for transfer, and failure to do so cannot be overlooked as a technical or formal defect.

For the reasons stated herein, we reverse the order of transferal and remand this cause for a period of 60 days to the trial court for the purpose of stating in an order the reasons supporting the waiver. Pending final review of such new order as may be entered, the defendant’s convictions and sentence shall not be affected.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . § 39.02(2), Fla.Stat. (1977).

      . This is apparently the only, although “roundabout,” method of appealing a transfer order. We do not have jurisdiction to review the transfer order under Florida Rules of Appellate Procedure 9.140(b). R.J.B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980). The practical effect is to postpone the appeal of a transfer order so long that when finally reviewed by an appellate court it well may be moot or without much meaning. We hope that the Florida Appellate Rules Committee will give consideration to this problem.

      . State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980); Stafford v. State, 380 So.2d 538 (Fla. 5th DCA 1980).


author: SHARP, Judge. DAUKSCH, Chief Judge,

text:
    Leonard E. SALAZAR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-775/T2-27.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 2, 1981.
    Anthony F. Gonzalez and Bennie Lazzara, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

A jury found Salazar guilty of importing marijuana and conspiracy to import marijuana. The jury heard and considered Salazar’s confession given to the Crystal River police at the police station. Prior to the trial, Salazar moved to suppress the confession because it was not freely or voluntarily given and because it was given as a result of his unlawful arrest. The trial court denied the motion, and the issue on appeal is whether or not it erred in so ruling.

When a defendant challenges the admissibility of his confession because of fifth and fourth amendment violations, the state has the burden of making an initial showing that no constitutional rights were violated. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) require the state or prosecution to show, where there has been an unlawful arrest followed by a confession, that the confession was not caused or produced by the unlawful arrest. The giving of proper Miranda warnings alone is insufficient. The court must also consider (1) the temporal proximity of the arrest and confession; (2) any intervening circumstances which do not break the chain of events between the confession and the arrest, and (3) the purpose and flagrancy of the police misconduct. If the link between the confession and the unlawful arrest is not sufficiently “attenuated,” then the confession must be excluded because it is “fruit from the poisonous tree.” However, if there is no unlawful arrest or if the defendant willingly agrees to a “search,” a later confession does not create a fourth amendment violation.

At the suppression hearing the prosecution presented sufficient evidence to show Salazar confessed after adequate Miranda warnings were given, and without threat or promise of immunity or lenient treatment. Salazar had been in the police chiefs office for approximately 30 minutes before he made his confession. Outside in the lobby were 14 to 20 other “Latin males.” They had been picked up by the police because of their proximity to a van, small boats in a barge canal, and a stranded shrimp boat, the Lady Rhonda, which had run aground nearby, and which was loaded with marijuana. Salazar indicated he did not want to talk with these other persons, nor did he want to be seen by them, and he remained apart from them at his choice. The police officers testified Salazar was not under arrest at the time his confession was given.

At the trial, Salazar renewed his motion to suppress his confession, and the trial court again denied the motion. The evidence at the trial showed that the Marine Patrol of the sheriff’s department boarded the Lady Rhonda, after being invited aboard by the sole occupant of the stranded vessel, a Latin male with a disabled leg. The boat was loaded with marijuana. Other Latin males were observed by the police with a van, trucks and smaller boats at a nearby barge canal. They had no fishing gear, and their presence appeared “suspicious.” When the Lady Rhonda’s cargo was positively identified as marijuana, the police began “rounding up” all persons of Latin heritage or origin in the area. At least one luckless, but innocent hitchhiker was “caught” in this “round-up.” We do not condone such “gestapo” tactics, but Salazar was not picked up in this manner.

Chief Pellam testified that the following morning he received a call from the police in a neighboring town, Inglis. The caller said there was a white male in a phone booth at the Withlacoochee Motel, who had no luggage and no apparent reason for being there. Pellam sent Officer Worsham to talk with the man, and to bring him to Crystal River to talk with them, if he was willing to come. Worsham testified he met Salazar at the motel restáurant, where he was drinking coffee with a local police officer. Salazar explained he had been fishing with a group of people on the canal, and they had left him. He was trying to telephone his wife. Worsham asked Salazar if he would accompany him to the Crystal River Police station: “I requested that he come and he said yes he would.” Worsham said he did not arrest Salazar and the state concedes it lacked probable cause to arrest Salazar at that point.

This is a “close” case. Dunaway and Brown both involved defendants who were clearly seized and subjected to unlawful arrests. At the suppression hearing, the police officers said Salazar had not been arrested and he was in the police chief’s office at his choice, because he did not want to be seen by other suspects. Salazar offered no testimony to show he had been arrested or unlawfully seized. At the trial, evidence was presented to show Salazar agreed to accompany Worsham to the police station voluntarily. Again, Salazar did not deny or counter that testimony.

Technically, the state should have presented all of this evidence at the suppression hearing. However, we shall consider all of it in reviewing the trial court’s ultimate conclusion at trial that the confession was admissible, because, in all fairness to the state and prosecution, Dunaway and Mendenhall had not been decided at the time of the suppression hearing, and the police “misconduct” in this case was not admitted nor clearly established as in Brown and Dunaway. See Williams v. U. S., 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). We conclude on balance that this case is more similar to Mendenhall, than to Brown, and accordingly, it is

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion this appellant was illegally detained in what the parties have agreed was a round-up of all Latin looking men. I would reverse the order denying the suppression of the confession in accordance with Dunaway.

      . U.S. Const. amend. V; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1969).

      . U.S. Const. amend. IV; Dunaway v. New York, 442, U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

      . Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Reddish v. State, 167 So.2d 858 (Fla. 1964); Cason v. State, 373 So.2d 372 (Fla.2d DCA 1979), cert. denied, 383 So.2d 1202 (Fla. 1980); State v. Dixon, 348 So.2d 333 (Fla.2d DCA 1977); cert. denied, 355 So.2d 517 (1978).

        . U. S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

      . U. S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

      . Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).


text:
    Terry Lee KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 80-885.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Knight was convicted of armed robbery and was sentenced immediately after his jury trial to a thirty (30) year “split” sentence consisting of fifteen (15) years in prison and fifteen (15) years thereafter on probation. Two weeks after the trial, the State requested that the court retain jurisdiction over the first one-third of the sentence pursuant to section 947.16(3), Florida Statutes (1979). The court entered an order retaining jurisdiction, and Knight appeals the order and judgment.

Section 947.16(3) provides that where a defendant is convicted of certain specified crimes, a trial judge may “at the time of sentencing” enter an order retaining jurisdiction over the defendant for the first one-third of the maximum sentence imposed for the highest felony charged and proven. Florida Rule of Criminal Procedure 3.800 provides that a court may reduce a legal sentence imposed by it within sixty (60) days. Retention of jurisdiction over an offender under section 947.16(3) is not a “reduction” of sentence, but rather it constitutes a modification which enhances the severity of the sentence.

We therefore conclude that the order seeking to retain jurisdiction over Knight was entered without jurisdiction. If such an order is going to be entered, it must be done at the time of sentencing. The order retaining jurisdiction is reversed. Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980); Petters v. State, 350 So.2d 558 (Fla. 2d DCA 1977).

Further, in view of Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), we remand this cause to the trial court for correction of the “split sentence” consistent with the dictates of the Florida Supreme Court. In all other respects the judgment is affirmed.

REVERSED in part and REMANDED.

COBB and COWART, JJ., concur.


author: DOWNEY, Judge.

text:
    HIGHLANDS INSURANCE COMPANY, Jack Adler, as Receiver for Galt Ocean Terrace Hotel, d/b/a Galt Ocean Terrace Condominium Apartments, Appellants, v. Albert J. GILDAY, Appellee.
    No. 79-1805.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied June 2, 1981.

      Larry Klein, West Palm Beach, for appellants.
    Howard L. Conklin, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The defendants, operator and insurer of a condominium-hotel, appeal from a final judgment entered pursuant to a jury verdict awarding plaintiff Albert Gilday $135,-000 for injuries he suffered when a stranger assaulted him in the condominium-hotel ground floor public men’s room.

Appellee was a business invitee of the Cocktail Lounge located on the ground floor or lobby of the hotel. During the course of the evening he left the lounge and went to the men’s room. While in the men’s room he was attacked by an unidentified male and beaten and robbed. Appellee sued the hotel and its insurer and received a verdict for $135,000.

Appellants contend that the trial court erred in entering judgment for appellee since appellants could not be held liable upon the evidence adduced because appellee failed to prove that appellants had notice or knowledge of the danger involved and failed to adequately protect against it. Appellants also assert the trial court erred in the admission of evidence for the purpose of proving notice or knowledge.

The owner or operator of a hotel has a duty to exercise reasonable care for the protection of its patrons. Wood v. Camp, 284 So.2d 691 (Fla.1973); Phillips Petroleum Co. of Bartlesville, Okl. v. Dorn, 292 So.2d 429 (Fla. 4th DCA 1974). However, such owner or operator is not an insurer of the safety of its patrons. Black v. Heininger, 163 So.2d 3 (Fla.2d DCA 1964). Nor is the owner or operator liable for the conduct of another on his premises which causes injury to a business invitee unless the owner or operator has notice of the danger involved and an opportunity to protect against it.

The parties to this appeal seem to be in agreement on the foregoing principles; they disagree on whether the hotel had sufficient notice to require it to furnish security to protect its patrons against an attack such as appellee suffered. Thus, the focal point in this case is: did the appellant hotel have sufficient information to put it on notice of a need for security measures?

The only proof (of any consequence) adduced by appellee on this point was 1) testimony that a former female employee who, upon being dismissed, stated that she would “have people brought down from Chicago to burn all of you,” and 2) testimony concerning the number of criminal complaints that had been received in Police Zone 15, which included the hotel property in question. Objection to the admission of such testimony was overruled. In our judgment the reception of the testimony concerning complaints in Police Zone 15 was error, and absent that testimony, the evidence was insufficient to take the case to the jury.

Helen Horn, records supervisor for the Ft. Lauderdale Police department, testified from a computer printout that during the twenty month period preceding the incident in question the police department received complaints of 387 crimes, including assaults, robberies, homicides, and breakings and en-terings in Zone 15, an administrative police zone within which appellant’s hotel is located. The zone in question runs from Sunrise Boulevard (the equivalent of N.E. 10th Street) to N.E. 42nd Street and from the Atlantic Ocean on the east to the intracoas-tal waterway on the west. A map of Fort Lauderdale, received into evidence over objection, indicates Zone 15 is approximately three miles long and one-half mile wide. The printout reflected only complaints and it did not specify the location thereof. However, Ms. Horn, at appellee’s request, was able to learn that four of the three hundred and eighty-seven complaints involved the appellant hotel, viz., (1) the incident involving appellee, (2) the threat made by the disgruntled employee, (3) the loss of a key by one of the appellant hotel’s guests, and (4) an alleged breaking and entering on the hotel premises. We hold that this evidence was not probative of this litigation’s fundamental question — notice to the appellant hotel that there was a necessity to protect its guests against criminal attacks.

Our conclusion is supported by the following holding in Relyea v. State, 385 So.2d 1378, 1383 (Fla. 4th DCA 1980):

In order to impose a duty upon a landowner to protect an invitee from criminal acts of a third person a plaintiff, invitee, must allege and prove that the landowner had actual or constructive knowledge of prior, similar criminal acts committed upon invitees. The landowner is not bound to anticipate criminal activities of third persons where, as here, the wrongdoers were complete strangers to the landowner and to the victims, and where the incident occurred precipitously. Totten [v. More Oakland Residential House, Inc., 63 Cal.App.3d 538, 134 Cal.Rptr. 29 (1976)]. See also, Shipes v. Piggly-Wiggly St. Andrews, Inc., 238 S.E.2d 167 (S.C. 1977). Appellants simply failed to allege or prove that any prior assaults upon persons had been committed in the area of the abduction and murder, or for that matter, anywhere on the campus. In fact, the proof showed there had not been one serious crime against a person since the school was founded in 1963. The reported incidents involved minor larcenies from automobiles and school buildings, hit and run complaints for minor automobile damage, and miscellaneous incidents such as malicious mischief. These facts do not give rise to the foreseeability of violent assaults which, in turn, may give rise to a duty to protect.

Therefore, we hold the trial court erred in admitting Ms. Horn’s testimony into evidence.

Having failed to prove adequate notice to appellants, appellee failed to prove a breach of duty by appellants, and thus the motion for directed verdict at the close of appellee’s case should have been granted.

REVERSED AND REMANDED with instructions to enter judgment for the appellants.

LETTS, C. J„ and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Manuel NOYA and Ana Nilda Noya, his wife, and Nestor Davila and Sonia Davila, his wife, d/b/a Las Guitarras Restaurant, Respondents.
    No. 80-1286.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      Janet Brown of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for petitioner.
    Joseph A. Rosier, Altamonte Springs, for respondents.
   SHARP, Judge.

Petitioner, Insurance Company of North America, seeks review by certiorari of the trial court’s order requiring petitioner to produce, pursuant to a subpoena duces te-cum, various documents for which petitioner asserts it has a “work-product” privilege and an attorney-client privilege. The trial court ruled it would protect petitioner’s attorney-client privilege by conducting an “in-camera” inspection of the materials, but that petitioner had waived its “work-product” privilege for the balance of the subpoenaed documents by failing to file objections to the subpoena duces tecum or moving for a protective order prior to the deposition. We have jurisdiction, and we grant the petition.

The scope of permissible discovery in civil cases is set by Florida Rule of Civil Procedure 1.280(b):

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: . .. parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, .... (Emphasis supplied)

Rule 1.280(b)(2) provides that a party’s “work-product” — documents and materials “prepared in anticipation of litigation or for trial” can be reached only if the party seeking discovery makes a showing that he needs the materials to prepare his case and “that he is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.” Respondent made no such showing in this case. Absent such a showing, and an order of the court designed to “protect against disclosure . . . the mental impressions, conclusions, opinions or legal theories of any attorney or other representative of a party,” such materials are outside the scope of discovery, and not reachable by the discovery process.

Don Mott Agency, Inc. v. Pullum, 352 So.2d 107 (Fla. 2d DCA 1977), is not controlling because that case dealt with materials for which no privilege was asserted. The respondent in Don Mott argued the discovery sought should be limited because it was “unreasonable and oppressive” and designed to annoy, embarrass, and be unduly expensive, although otherwise it was within the permissible scope of discovery. Rule 1.140(b) and (c) expressly require a party to file timely motions to quash, or for a protective order, or written objections, in order to limit discovery of documents and materials otherwise within the scope of discovery. Failure to take such timely action waives these objections, but it does not bar a party from asserting a privilege or exemption for matters outside the scope of permissible discovery.

For the reasons stated in this opinion, the petition for writ of certiorari is granted, and the lower court’s order is amended to delete the requirement that petitioner produce the materials for which it asserts a “work-product” privilege.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . Fla.R.App.P. 9.030(b)(2)(B)

      . Fla.R.Civ.P. 1.280(b)(1).

      . Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977); cert. denied, 358 So.2d 135 (Fla. 1978); Southern Millcreek Products Co., Inc. v. Delta Chemical Co., 203 So.2d 53 (Fla. 3d DCA 1967); Winn Dixie Stores, Inc. v. Belcher, 144 So.2d 863 (Fla. 2d DCA 1962).

      . Don Mott v. Pullum, 352 So.2d 107 (Fla. 2d DCA 1977).


author: ORFINGER, Judge.

text:
    Arthur James EASTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1783/T4-722.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    Rehearing Denied April 20, 1981.

      Richard L. Jorandby, Public Defender and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted after a jury trial of attempted robbery. He raises two points on appeal: (1) that irrelevant testimony was admitted which prejudiced the jury against him and (2) there was error in the refusal of the trial court to give the requested jury instruction on minimum and maximum penalties. We reverse.

The victim of the attempted purse-snatching, while testifying for the State, was asked if she had brought her purse with her to court that day. When she responded in the negative, she was asked why. The court agreed with the defense objection that her reason for not bringing her purse was irrelevant; the prosecutor then asked for a bench conference. We are not privy to what took place at the conference because the record reflects that it was held out of the hearing of the reporter. Following the conference, the prosecutor again asked a similar question, to which there was no further objection. The witness replied that because of the incident, she was afraid to carry a purse and would never carry one again. The failure to object to testimony precludes appellate review of any alleged error in the admission thereof. Castor v. State, 365 So.2d 701 (Fla. 1978).

Since this case will to be re-tried, we must observe that the questioning was improper. The State argues that it was necessary to show the victim’s fear to satisfy the dictates of the robbery statute, but be that as it may, the victim’s fear on the day she testified was irrelevant. What would have been relevant was her fear at the time of the robbery, and the question in issue did not address that point.

The Supreme Court has now held that the giving of the penalty instruction is mandatory when requested, Tascano v. State, 393 So.2d 540 (Fla.1980), and that defendants who have preserved this issue for appeal have the benefit of that decision. The record shows that the instruction was requested by appellant and denied by the court. Appellant objected to the refusal of the court to give the instruction, thus preserving the point for appeal, and has raised it here as a point on appeal. We give the appellant the benefit of Tascano as we are required to do and we reverse for a new trial.

REVERSED and REMANDED for a new trial.

COBB and SHARP, JJ., concur.

      . § 812.13, Fla.Stat. (1979).


author: PER CURIAM.

text:
    Francis Jarad SCHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-94.
    District Court of Appeal of Florida, Second District.
    April 3, 1981.
    Rehearing Denied May 18,1981.
   PER CURIAM.

Appellant appeals the denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 which primarily raised the issue of ineffective assistance of counsel. We affirm.

Appellant had also filed what he styled as “Supplemental Grounds for Post-Conviction Relief” asserting failure to receive proper credit for time served in jail following his arrest.

It not being clear from the record before us that appellant brought the supplemental question of proper credit for time served to the attention of the trial court, our affirmance is without prejudice to that question being presented in the lower court by a further motion pursuant to rule 3.850.

OTT, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    John Stein RICE, a/k/a Richard Price, Appellant, v. STATE of Florida, Appellee.
    No. 80-1111.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied June 3, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, and Douglas N. Duncan, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980).

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Joseph DALEY, Roque Cavazos and Jeromy Angsten, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1568, 78-1653 and 78-1654.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Thomas G. Murray and William M. Moran of Moran & Gold, P. A., Miami, for appellant-Daley.
    Robert A. Huth, Jr., Fort Lauderdale, for appellant-Cavazos.
    James W. Reilley and Jordan Bell of Reil-ley, Bell & Weinberg, Chicago, Ill., for appellant-Angsten.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann and Charles W. Musgrove, Asst. Attys. Gen., West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

DOWNEY, Judge.

I

On May 21, 1980, this court entered a judgment with opinion reversing the judgments of conviction (entered pursuant to nolo contendere pleas) of the appellants. Daley v. State, 387 So.2d 971 (Fla. 4th DCA 1980). In addition, we certified to the Supreme Court of Florida, as being one of great public importance, the question whether a defendant had automatic standing to challenge the legality of a search or seizure if he is charged with an offense that includes, as an element of that offense, possession of the seized material at the time of the contested search and seizure.

On January 14, 1981, the Supreme Court of Florida entered an opinion (State v. Daley, 392 So.2d 1327, Fla., in which the Court remanded the cause to this court for reconsideration in light of United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

We have reconsidered this cause in light of the foregoing decisions of the Supreme Court of the United States and hold that the appellants did not have automatic standing to question the propriety of the search for and seizure of the marijuana involved in this case. In addition, we hold that appellants at the hearing on the motion to suppress evidence did not demonstrate that they had standing (a reasonable expectation of privacy) to question the search and seizure. Appellants gave no evidence as to standing nor did they, with one exception, proffer any evidence as to standing.

The one exception was appellant Daley. In an attempt to show standing, Daley made a proffer that, among other things, he “was legitimately on [the premises when the marijuana was seized at the time in question] pursuant to authorization of a person who possessed legal authority to allow [him] to enter onto these premises” and that “[a]t no time did [he] abandon the contraband which the police subsequently found in the residence in question....” Even had the circuit court accepted the proffer into evidence, and Daley does not argue on appeal that the court’s refusal to accept the proffer was erroneous, the assertions in the proffer are insufficient to demonstrate that Daley had standing to question the search and seizure. We therefore hold that the circuit court’s denial of appellants’ motions to suppress the marijuana was proper. State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980).

II

In our May 21,1980, opinion, we also held that the circuit court erred in denying the appellants’ motions to suppress certain statements. The circuit court’s refusal to suppress the statements was not dispositive of the charges against the appellants. See Brown v. State, 376 So.2d 382 (Fla.1979). By now holding that the circuit court’s refusal to suppress the marijuana for appellants’ lack of standing was proper, we have ruled on a dispositive issue. Brown v. State, supra. The circuit court’s ruling as to appellants’ statements is thus moot, and we therefore recede from the May 21, 1980, holding relative to appellants’ statements.

III

Untreated in our earlier opinion was the question whether the circuit court’s denial of each appellant’s motion to dismiss was proper.

Although that question is also a disposi-tive issue (Brown v. State, supra), and all three appellants reserved the right to raise the question on appeal from the judgments of conviction, only appellant Daley argued that question on appeal. Since appellants Cavazos and Angsten did not address that question in their appeals, we summarily affirm the circuit court’s denial of their motions to dismiss. Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958).

We have examined the argument relative to the denial of Daley’s motion to dismiss and have concluded it does not demonstrate error.

Accordingly, we vacate the judgment and opinion filed May 21, 1980, and affirm the judgments appealed from.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: HENDRY, Judge.

text:
    ROLF’S MARINA, INC., a Florida corporation, Appellant, v. RESCUE SERVICE & REPAIR, INC., a Florida corporation; Edward T. Gagnon and Jean Gagnon a/k/a E. Jean Gagnon, his wife, Appellees.
    No. 80-1385.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Rehearing Denied June 3, 1981.
    Robert S. Appleton (Marathon); John A. Finn, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Benjamine Reid, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

Appellant, ordered to choose between inconsistent forms of relief, elected a remedy which proved to be legally unavailable. We reverse that portion of the final order which dismissed appellant for failure to state a legal claim, and remand with leave to appellant to pursue its formerly abandoned positions. We affirm the entry of judgment of foreclosure.

Appellant is a Florida corporation chartered to operate an existing Key Largo marina and marine repair service, which was purchased from appellees for cash, a motor home, and a purchase money second mortgage. The contract for sale warrantied that the land upon which the business was located was zoned to allow such an enterprise; in fact, it was not. Appellant’s eventual action sounded in contract for recision, reformation or damages; and in tort, seeking damages for fraudulent misrepresentation.

Upon oral motion on the day of trial, the circuit court properly ordered appellant to make an election between recision or damages, Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla.3d DCA 1974), cert. denied, 298 So.2d 416 (Fla.1974); appellant chose the former. At trial, it was established that appellant had inadvertently affirmed the contract for sale by his tender, months after the zoning problem came to light, of an annual mortgage payment. Since, by that ratification, appellant barred itself thereafter from seeking contractual recision, Jones v. Watkins, 105 Fla. 25, 140 So. 920 (1932); Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089, 1092-93 (Fla.3d DCA 1979); it is clear that the remedy elected was illusory. The law does not mandate so harsh a result:

[F]or an action to constitute “election of remedies”, there must be two or more available remedies open to plaintiff at the time he institutes the first action. Gibson v. American Ins. Co., 146 Fla. 171, 200 So. 357. The remedies sought must not only be inconsistent but they must also be coexistent. If the remedy sought in the first instance does not exist at the time it is sought, then there is no election of remedies. The parties are not bound unless, at the time of the first suit, there are two remedies then available from which an election may be made. If, in the first instance, plaintiff proceeds upon an assumed remedy which does not exist at the time, and such effort proves abortive, he is not precluded from resorting to another remedy.

Perry v. Benson, 94 So.2d 819, 821 (Fla. 1957); Restatement of Contracts § 383 (1932); criticized in Dobbs, Remedies 20 (1973).

Upon remand, appellant may seek damages for the contractual breach, Tabatchnick’s II, Inc. v. Davis, 386 So.2d 37 (Fla.3d DCA 1980); Hustad v. Edwin K. Williams & Co.-East, 321 So.2d 601, 603 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 41 (Fla. 1976); or for the alleged fraud, Storrs v. Storrs, 130 Fla. 711, 178 So. 841, 844 (1937) (rehearing), after remand, 139 Fla. 270, 190 So. 512 (1939), Williams v. McFadden, 23 Fla. 143, 1 So. 618, 621-22 (1887). (In the context of the tort claim, we direct the trial court’s attention to the recent decision of the Florida Supreme Court in Bessett v. Basnett, 389 So.2d 995 (Fla.1980).)

Affirmed in part, reversed in part, and remanded.


author: PER CURIAM. SHAW, Judge,

text:
    Orlando Hyatt HOUSE and Scott Wetzel Services, Inc., Appellants, v. Dora E. COAKLEY, Appellee.
    No. XX-189.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Rehearing Denied June 2, 1981.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.

SHAW, J., dissenting with opinion.

SHAW, Judge,

dissenting.

The deputy commissioner ordered the employer/carrier to pay for Dr. Farrar’s treatment of the claimant and the medical services related to such treatment. There is no evidence that Dr. Farrar was authorized by the employer/carrier to treat the claimant. The award is based on a finding by the deputy that the claimant was referred to Dr. Farrar by Dr. Hood, an authorized physician. The record does not support the finding. There is no evidence that Dr. Hood was authorized by employer/carrier to treat the claimant. Having no authorization himself, Dr. Hood was never in a position to refer the claimant to Dr. Farrar at carrier expense. I would, therefore, reverse that part of the compensation order which orders payment for Dr. Farrar’s bills and related medical services.


text:
    Ray Anthony COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2646/T4-327.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Rehearing Denied May 28, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980).

ORFINGER and SHARP, JJ., and WALKER, GRISSIM H., Associate Judge, concur.


text:
    G & J INVESTMENT CORP., INC., a Florida Corporation, Appellant, v. Frank SMITH and the City of Ormond Beach, Florida, Appellees.
    No. 79-339.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Rehearing Denied May 18, 1981.

      R. Stuart Huff, Coral Gables, for appellant.
    Fred S. Disselkoen, Jr., of Duffett, Seps & Akers, Ormond Beach, for appellees.
   ORFINGER, Judge.

Appellant filed a petition in the Circuit Court of Volusia County, seeking the issuance of a writ of mandamus directed to the appellee City and its building inspector to compel appellees to enforce the City’s zoning laws.

In essence, appellant alleged that four radio towers had been built upon its property in 1974 in violation of the City’s zoning ordinance and that because the property had never been rezoned to allow these structures nor had a variance been granted, they existed in violation of law and the City was therefore obligated to compel their removal. The petition suggests that the towers are owned by someone other than appellant, but does not advise the court by what right the owner thereof constructed them on appellant’s property. It is not alleged that they trespass thereon, so we surmise that the owner of the towers claims some right to keep them where they are located.

Based upon the petition, an alternative writ of mandamus was issued and served upon appellees who thereupon filed a motion to quash the alternative writ. After hearing, the trial court entered an order granting the motion to quash the alternative writ because: (a) no appendix had been filed with the petition as required by Rule 9.100(e) when read with Rules 9.100(a), 9.030(c)(3) and Rule 9.020(d), Florida Rules of Appellate Procedure; (b) it appeared that the towers were built upon appellant’s property during appellant’s ownership thereof and that unless the owner of those towers was before the court a complete determination of the equities, rights and liabilities of the parties was not possible. Twenty days were allowed for amendment. Rather than amend, appellant moved the trial court to reconsider, which was rejected. A final order quashing the writ was entered, from which order this appeal follows.

Procedurally, appellant says that a mandamus proceeding in the circuit court is governed not by the appellate rules but by Rule 1.660, Florida Rules of Civil Procedure, and this rule does not require an appendix, so the trial court was in error in discharging the writ for that reason. When the action was filed below on March 5, 1979, Rule 1.660, Florida. Rules of Civil Procedure, no longer applied to mandamus actions. The 1977 Rules of Appellate Procedure, effective with proceedings commenced after March 1, 1978 provides, inter alia, that the appellate rules apply to proceedings in the circuit court in the exercise of the jurisdiction described by Rule 9.030(c), and that all conflicting rules and statutes are superseded. Rule 9.030(c)(3) sets forth the jurisdiction of the circuit courts to issue original writs, including writs of mandamus. Rule 9.100 (“Original Proceedings”) specifically applies to the jurisdiction of circuit courts under Rule 9.030(c)(3), and subdivision (e) thereof requires an appendix when the petition seeks an order directed to a “lower tribunal.”

But, says appellant, there is no “lower tribunal” here because this is an original proceeding in the circuit court, which is the first court to hear the case. This argument overlooks the definition of “lower tribunal” in Rule 9.020, Florida Rules of Appellate Procedure, as including the agency, officer, board or body whose order is to be reviewed, and further overlooks the definition of “order” in the same rule as including a decision of the lower tribunal. If, as appellant alleges, the existence of the towers violated the zoning ordinance and the City refused to enforce the ordinance, this was the decision which appellant sought to overturn by compelling action through mandamus. An appendix was required under Rule 9.100(e).

Appellant further says that the trial court should not compel it to sue a party it doesn’t choose to sue, and the trial court therefore erred in requiring the owner of the towers to be joined in the action. It is obvious from what has already been said that the owner of the towers, in addition to its rights of ownership, claims some right to maintain them where they are located. Petitioners attack the existence of the towers only as a violation of a zoning ordinance, not otherwise. The trial court was justified in refusing to decide rights and liabilities of parties not present before the court. It has long been the law of Florida that where is appears that real and substantial interests of third parties not before the court are involved, mandamus will not lie, State ex rel. Harrington v. City of Pompano, 136 Fla. 730, 188 So. 610 (1938); State ex rel. McKinnon v. Wolfe, 58 Fla. 523, 50 So. 511 (1909), unless the claims appear to be unreal and imaginary. State ex rel. Taylor v. Gray, 157 Fla. 229, 25 So.2d 492 (1946). The apparent interests of the admitted owner of four large radio towers can hardly be said to be unreal and imaginary, at least on this record, so appellant fails to demonstrate error.

The judgment appealed from is

AFFIRMED.

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

      . In reviewing the facts the reader must wonder, as we did, why the appellant did not remove the towers without court or City intervention, since they are on appellant’s property and there is no direct allegation that they were constructed or owned by someone else. Since one gleans from certain indirect allegations in the petition and the alternative writ that the towers do belong to someone other than appellants, we surmise that appellant may not be able to compel their removal directly, so it seeks to compel their removal by showing that they exist contrary to the zoning laws. The relationship between appellant and the owner of the towers does not enter into this decision, however, beyond the effect that the existence of someone not a party to this suit may have had on the trial court’s ruling.

      . No exhibits were attached to the petition for alternative writ so no record was presented to the trial court except the bare pleadings.

      . The rule was formally repealed October 9, 1980, effective January 1, 1981 (391 So.2d 165), but in reality it was abolished with the amendments to the Florida Rules of Appellate Procedure which became effective on March 1, 1978.

      .Fla.R.App.P. 9.010.


author: COBB, Judge.

text:
    Reggie HANNAH, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, CHILD SUPPORT ENFORCEMENT PROGRAM, Assignee/Subrogee of Michelle Blackmon, Appellees.
    No. 80-668.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Rehearing Denied May 29, 1981.
    Stephen A. Rappenecker, P. A., Gaines-ville, for appellant.
    Joan H. Bickerstaff, Cocoa, for appellee.
   COBB, Judge.

The parties have agreed that it was error to include court costs as a part of the final judgment because they were not asked for. Accordingly, those portions of the final judgment and the post-decretal order of contempt consisting of court costs are stricken. The other points raised by appellant are without merit, and in all other respects the two orders under review are affirmed.

REVERSED in part; AFFIRMED in part.

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


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Rafael SANCHEZ, Appellee.
    No. 80-966.
    District Court of Appeal of Florida, Second District.
    April 22, 1981.
    Rehearing Denied May 28, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and David Weisbrod and G. P. Waldbart, Asst. Attys. Gen., Tampa, for appellant.

      Law Offices of Robert L. Moore, Miami, and Sharon L. Wolfe and Marc Cooper of Greene & Cooper, P. A., Miami, for appel-lee.
   HOBSON, Acting Chief Judge.

Rafael Sanchez was indicted and charged with conspiracy to deliver a quantity of cannabis in excess of 100 pounds. He filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), which the trial court granted. The State appeals the dismissal. We affirm.

Sanchez’ motion, which the State did not traverse, recited facts derived solely from the sworn deposition of co-defendant, Larry McFarlane, as follows:

1. McFarlane does not speak or understand the Spanish language.

2. McFarlane never spoke to Sanchez in English, nor did Sanchez speak English in McFarlane’s presence. So far as McFarlane knows, Sanchez does not speak English.

3. On or about August 24, 1978, at various locations around Hilton Head, South Carolina, Sanchez was present with other people, including McFarlane.

4. On this occasion, McFarlane conversed in English with co-defendants regarding marijuana off-load sites in the area. Sanchez participated in conversations in Spanish which McFarlane did not understand.

5. McFarlane does not know what was said to Sanchez in Spanish and does not know what Sanchez said to anyone present.

6. When McFarlane heard Spanish being spoken, he did not know what was being said, whether Sanchez was making a remark, a statement or asking a question.

7. McFarlane never spoke to Sanchez directly, but used one of the Spanish speaking individuals present as an interpreter. One exception occurred when Sanchez expressed a desire to leave and McFarlane made arrangements for Sanchez to return to Miami on a private plane.

8. McFarlane does not know why Sanchez was present at Hilton Head.

9.On or about October 26, 1978, McFar-lane was present at a meeting in Miami at which several people, including Sanchez, were present. McFarlane was paid advance money at that time by another individual. McFarlane did not know why Sanchez was present at the meeting except that he engaged in some Spanish conversation. McFarlane does not know what was said in Spanish or to whom the comments were directed.

A motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) should ascertain whether the facts on which the State relies to constitute the crime charged, and on which it will offer evidence to prove it, establish as a matter of law a prima facie case of guilt against the accused. State v. Davis, 243 So.2d 587 (Fla.1971).

Based on the facts as set out in Sanchez’ motion, and viewed in a light most favorable to the State, we hold that the trial court correctly determined that the State failed to establish a prima facie case of guilt against Sanchez.

Sanchez’ physical presence in the general area, without more, is insufficient as a matter of law to establish his participation in the conspiracy. Honchell v. State, 257 So.2d 889 (Fla.1971); Daly v. State, 297 So.2d 842 (Fla. 2d DCA 1974). We affirm the order of dismissal.

AFFIRMED.

BOARDMAN and DANAHY, JJ., concur.


text:
    ALLSTATE ENTERPRISES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. WW-435.
    District Court of Appeal of Florida, First District.
    April 28, 1981.
    Rehearing Denied June 16, 1981.
    Richard C. McFarlain of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and E. Wilson Crump, III, Asst. Atty. Gen. and Robert A. Pierce, Gen. Counsel, Tallahassee, for appel-lee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Allstate Enterprises, Inc. (“Appellant”) was assessed by the Department of Revenue for Florida intangible tax on certain promissory notes which it did not own. Asserting that it is not considered good business practice to pay taxes on property owned by others, Appellant seeks review of the Department’s final order.

The question here is whether Appellant must file an intangible tax return pursuant to Section 199.052(1), Florida Statutes (1977), as to the notes which (so the State claims) have a business situs in the State of Florida by virtue of Section 199.112, Florida Statutes (1977). Appellant contends that before it has an obligation to file a return on the notes, two requirements must be met: First, the notes must be “subject to taxation”, and, second, Appellant must either own the notes or have control, management or custody of them. We find that under the facts of this case both of these requirements are met.

Appellant is a Delaware corporation authorized to do business in Florida. Allstate Financial Corporation (“Financial”), a wholly owned subsidiary of Appellant, is a Delaware corporation not qualified to do business in Florida. Financial provides funding to Appellant, which in turn lends money to individuals for the purchase of automobiles and recreational vehicles from unrelated third parties. Appellant receives from each borrower simultaneously with the purchase an installment note secured by a lien on the automobile or recreational vehicle which the borrower purchases with the funds provided by Appellant. A security agreement provides that the borrower shall not change the principal location of the property from Florida without Appellant’s written consent. As soon as each transaction is completed, Appellant sells the installment note, without recourse and on a discounted basis, to Financial and the note is physically transferred to and maintained by Financial in the State of Delaware.

As and when notes are sold by Appellant to Financial, Appellant retains no right, title or interest in them. However, the borrower is not advised that his note has been sold and all payments on the notes are made directly to Appellant. Furthermore, as part of its agreement with Financial, Appellant (1) makes collection on the notes and remits the proceeds to Financial, (2) maintains sufficient records enabling Financial to determine the status of outstanding notes, (3) repurchases a borrower’s note from Financial in the event of default by the borrower, and (4) conducts any repossession or foreclosure proceedings in his own behalf. The agreement further provides that in performing its responsibilities under the contract, Appellant is acting as the “agent” of Financial.

Section 199.112, Florida Statutes (1977), provides, in pertinent part, as follows:

“All . .. notes ... wheresoever situated, arising out of, or issued in connection with, the sale, leasing, or servicing of . .. personal property in the state are subject to taxation under this chapter, it being the legislative intent to provide that such intangibles shall be assessable regardless of where they are kept, approved as to their creation, or paid.”

We hold, under the facts of this case as set forth above, that the installment notes were “. . . issued in connection with . . . the sale .. . of . .. personal property ...” within the meaning of Section 199.112, Florida Statutes, and thus, the notes have a business situs in the State of Florida irrespective of the fact that the notes are physically kept in the State of Delaware. In so holding, we expressly reject Appellant’s contention that under Section 199.112, Florida Statutes, a note can “arise out of or be issued in connection with the sale, leasing or servicing” of an automobile or recreational vehicle only if the obligee of the note was the seller, lessor or servicer of the automobile or recreational vehicle. We can discern no legislative intent to restrict the scope of Section 199.112, Florida Statutes, to seller-financed transactions.

Since the notes are ones which are “subject to taxation” by virtue of Chapter 199, Florida Statutes, the second prong of the inquiry is whether Appellant either owns the notes or has control, management or custody of them. Under the stated facts, Appellant clearly neither owns the notes nor does it have the control or custody of them. However, the statute uses the phrase “control, management or custody”, and the word “or” when used in a statute is generally to be construed in the disjunctive. Telophase Society of Florida, Inc. v. State Board of Funeral Directors and Embalmers, 334 So.2d 563 (Fla.1976). Thus, the language in Section 199.052, Florida Statutes, means that one who either has control or has management or has custody of intangible personal property “subject to taxation under this chapter” is obligated to make a return on the same. We hold that under the facts set forth above, Appellant has “management” of the installment notes. Considering that Appellant prohibits removal of the vehicles from the state without its consent, makes all collections on the notes and remits to Financial, maintains collection records, repurchases the notes in the event of default, and on its own behalf conducts any repossession or foreclosure proceedings as may be required, it would be difficult to conceive of little, if any, other activity which would, to a greater degree, bring Appellant within the legislative concept of the word “management”.

In summary, we hold that Appellant was required, under Section 199.052, Florida Statutes, to file intangible returns on the notes in question because it had management of the notes and the same were subject to taxation under Chapter 199, Florida Statutes.

AFFIRMED.

McCORD, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.

      . (1) It is hereby made the duty of every person in the state, and every person who has become a legal resident of the state on or before January 1, who owns or has control, management, or custody of intangible personal property which is subject to annual taxation under this chapter to file a sworn return with the department on or before June 30 of each year, listing separately the character, description, location, and just valuation of all such property.

      . Appellant is not involved in the sale, leasing or servicing of the automobiles or recreational vehicles.