text:
    MARION COUNTY LAUNDRY and Iowa National Mutual Ins. Co., Appellants, v. Bernice BALIK, Appellee.
    No. QQ-401.
    District Court of Appeal of Florida, First District.
    March 31, 1980.

      Bernard J. Zimmerman, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    W. James Kelly of Philpot & Kelly, Lake-land, for appellee.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


source: Caselaw Access Project

author:
ROBERT P. SMITH, Jr., Judge.
      BOOTH, Judge,

license: Public Domain

text:
    MANATEE MEMORIAL HOSPITAL and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Priscilla LOVE, Appellee.
    No. QQ-460.
    District Court of Appeal of Florida, First District.
    March 31, 1980.
    Alex P. Lancaster of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    No appearance for appellee.
   ROBERT P. SMITH, Jr., Judge.

The employer and carrier appeal from a compensation order directing payment of the past and future medical bills of Dr. Sullivan, whose services were not authorized by the carrier. Claimant sought and received treatment by an unauthorized physician because she did not know the carrier had authorized her treatment by another physician, had made an appointment for him to see her, and had twice so notified her attorney. The record contains no explanation by the attorney of why he did not so communicate with his client, and the attorney has made no appearance here. No reason is suggested why the attorney’s apparent fault should result in an award of fees for unauthorized medical care against the employer and carrier. Section 440.13, Florida Statutes (79). The award is

REVERSED.

SHAW, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: ROBERT P. SMITH, Jr., Judge.

text:
    HAMLIN, SEGERS & MOUTON, P. A., Ronald B. Hamlin, Jerry C. Segers, Russell M. Jinks, and E. Dwan Ramsey, Appellants, v. Larrey G. MOUTON, Appellee.
    No. SS-40.
    District Court of Appeal of Florida, First District.
    March 31, 1980.
    Rehearing Denied April 23, 1980.
    John F. Daniel, Panama City, and Paul E. Komarek of Mann, Komarek, P. A., Lynn Haven, for appellants.
    Scott R. Nabors of Nabors & Husbands, Panama City, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The circuit court’s order determining creditors, entered October 10, 1979, is attacked on appeal by the parties on whose motion the court entered that order, determining that appellee Mouton effectively tendered his stock in the professional association, so obligated the association to buy his stock on terms stated in the “buy and sell agreement” of the incorporators, and thus became a general creditor of the association having rights superior to other shareholders in the subsequent liquidation. Even assuming that the order appealed should be treated as one for summary judgment on liability, we find in the record no genuine issue as to any material fact. We agree with the trial court that Mouton’s letter of October 10, 1978, effectively tendered his stock. No other issue of fact is asserted; no question of the meaning and construction of the “buy and sell agreement” is advanced; no error of law is shown.

We do not review the circuit court’s order denying appellants’ motion to dismiss counts three through five of the amended complaint, for that order is not final and not appealable. Fla.R.App.P. 9.130.

The order determining creditors is AFFIRMED.

BOOTH and SHAW, JJ., concur.


author: WENTWORTH, Judge.

text:
    John BENTON, Petitioner, v. The CIRCUIT COURT FOR the SECOND JUDICIAL CIRCUIT and the Honorable Charles Miner et al., Respondents.
    No. TT-303.
    District Court of Appeal of Florida, First District.
    March 31, 1980.
    Stephen E. Tunstall of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for petitioner.
    Charles J. Grimsley, Tallahassee, for respondent Ancillary Receiver of United America Insurors, Inc.
    John M. McNatt of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondent Florida Ins. Guaranty Ass’n.
   WENTWORTH, Judge.

This cause is before us upon petition for a writ of prohibition. Petitioner has not demonstrated that he is without other adequate means of redress for the alleged wrong about to be inflicted by the

trial court, Prohibition will not lie to usurp the functions of an appeal. State v. Trammell, 192 So. 175 (Fla.1939); Corbin v. State, 324 So.2d 203 (Fla. 1st DCA 1976). Accordingly, the petition is denied.

MILLS, C. J., and LARRY G. SMITH, J., concur.


author: HURLEY, Judge.

text:
    Willie James McCANTS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2087.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied May 14, 1980.

      Richard L. Jorandby, Public Defender, West Palm Beach, and Barry M. Cohen, North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn and Mary E. Marsden, Asst. Attys. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

McCants was convicted of armed robbery and grand larceny. He was sentenced to twenty-five years for armed robbery and five years for grand larceny, the sentences to run concurrently. He appeals the judgment and sentence. ■ We affirm as to the armed robbery, but reverse as to the grand larceny.

A defendant may not be sentenced on both a lesser included offense and the higher offense arising out of the same criminal transaction. Section 775.021(4), Florida Statutes (1977); McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979). According to the Supreme Court’s decision in Brown v. State, 206 So.2d 377 (Fla.1968), there are four categories of lesser included offenses: (1) crimes divisible into degrees; (2) attempts to commit offenses; (3) offenses necessarily included in the offense charged; and (4) offenses which may be included in the offense charged, depending on the accusatory pleading and the evidence.

Since the only distinction between larceny and robbery is the element of contemporaneous or precedent force, violence or inducement of fear for one’s physical safety which robbery includes, it is legally impossible to prove a robbery without also proving a larceny. McCloud v. State, 335 So.2d 257 (Fla.1976); Hammer v. State, 343 So.2d 856 (Fla. 1st DCA 1976), cert. denied, 352 So.2d 175 (Fla.1977). Larceny thus falls into the third category of Brown as a necessarily included offense in the crime of robbery. Brown v. State, supra; McClendon v. State, supra. Grand larceny, however, encompasses a value element not essential for robbery and, therefore, it is not necessarily included in the offense of robbery. Rather, it falls within category four of Brown and may be a lesser included offense if it is alleged in the accusatory instrument and supported by the proof at trial. State v. Anderson, 270 So.2d 353 (Fla.1973); Brown v. State, supra; Haynes v. State, 377 So.2d 771 (Fla. 4th DCA 1979).

Under category four of Brown, a defendant “. . . may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge.” State v. Anderson, supra at 356. In the case at bar, McCants was fully advised of all the offenses of which he might be found guilty. The robbery count charged that he had taken currency and personal property by force, violence, assault or putting in fear. The grand larceny count alleged that he had taken currency and property of a value of $100.00 or more. These allegations were proven at trial and it is clear from the record that the robbery and grand larceny were part of the same transaction, i. e., they involved the same victim and occurred at the same time and place. In this context, the grand larceny was a lesser included offense of the armed robbery. We therefore affirm the armed robbery conviction, but reverse the conviction for grand larceny and remand with instructions to vacate the judgment and sentence as to the latter.

Affirmed in part, reversed in part and remanded with instructions.

DOWNEY, C. J. and GLICKSTEIN, J., concur.


author: COBB, Judge.

text:
    Ahmed M. ELMARIAH, M. D., Appellant, v. ORANGE MEMORIAL HOSPITAL ASSOCIATION, INC., Appellee.
    No. 79-339/T4-403.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Rehearing Denied April 28, 1980.
    Ahmed M. Elmariah, M. D., in pro. per.
    Stephen W. Beik of Pitts, Eubanks & Ross, P. A., Orlando, for appellee.
   COBB, Judge.

Elmariah, plaintiff below, appeals the entry of summary final judgment in favor of appellee, defendant below, Orange Memorial Hospital Association, Inc., in this breach of employment contract action. Only one of the issues raised requires reversal.

Where the record discloses that genuine issues of material fact exist, summary judgment is precluded. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The record here reveals a genuine issue of material fact— whether the contract was for a definite term of twelve months.

Accordingly, the judgment is reversed and the cause remanded.

REVERSED and REMANDED.

ORFINGER and UPCHURCH, JJ., concur.

      . The trial court declined to rule on defendant’s motion to dismiss, stating that the motion was moot due to entry of summary final judgment. Therefore, we do not decide whether dismissal for failure to obey trial court orders would have been proper.


author: BOARDMAN, Acting Chief Judge.

text:
    Billy Lee KINNER, Appellant, v. STATE of Florida, Appellee.
    No. 78-2118.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
    George L. Waas, Asst. Gen. Counsel of the Florida Department of Health & Rehabilitative Services, Tallahassee, amicus curiae.
    Jon P. Rossman, Executive Director, Governor’s Commission on Advocacy for Persons with Developmental Disabilities, Tallahassee, and Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, amicus curiae.
   BOARDMAN, Acting Chief Judge.

Billy Lee Kinner appeals an order of the circuit court involuntarily committing him for hospitalization pursuant to Section 393.-11, Florida Statutes (1977). Appellant challenges the constitutionality of Section 393.-11 for the first time on this appeal. We agree that Section 393.11 is unconstitutional and reverse.

Generally, unless an error is raised at the trial level it cannot be considered on appeal. The exception to this rule is where the error raised is fundamental error. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). Fundamental error has been defined as error “which goes to the foundation of the case or goes to the merits of the cause of action.” Id. at 137; Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976), aff’d, 363 So.2d 331 (Fla.1978). Appellant challenges the constitutionality of Section 393.11 on the ground that it does not provide standards for involuntary hospitalization of a mentally retarded person which comport with due process. Such a defect would clearly go to the foundation of the case. Consequently, we may consider the issue on this appeal.

The pertinent portions of the challenged statute are as follows:

393.11 Hearing and order for involuntary admission to residential services; recommendation of examining commission.—
(2) . . . The hearing and order for involuntary admission shall be conducted and entered in the county in which the person is residing or in the county from which the original admittance was made. The hearing shall be conducted and the order entered according to the following procedure:
(a) Three persons, one of whom shall be a physician licensed and practicing under chapter 458, shall constitute a petition committee. These persons shall state under oath the name of the person being considered for involuntary admission, his residence, his family conditions, his physical condition, and the nature and extent of his retardation as established by competent evaluation.
(b) Upon receiving the petition, the court shall immediately appoint an examining commission to examine the person being considered for involuntary admission to residential services of the retardation program of the department. The court shall appoint no fewer than three disinterested experts qualified in the field of mental retardation, including at least one licensed and qualified physician, one licensed and qualified psychologist, and one qualified social worker, to examine the applicant and to testify in person at the hearing on admission to residential care. Members of the commission shall not be employees of the department or be associated with each other in practice or in employer-employee relationships. If there is not a practicing psychologist within the county who meets the above standards, the judge may appoint one additional physician to be a member of the examining commission. Such expert testimony shall include, but not be limited to:
1. The degree of the applicant’s retardation.
2. The purpose to be served by residential care.
3. The appropriate habilitation and treatment.
Other evidence regarding the appropriateness of the applicant’s admission may be introduced at the hearing by any interested party.
(c) Hearing on the petition shall be held as soon, as practicable after the petition is filed. The applicant shall be physically present throughout the entire proceeding, be represented by counsel, and be provided the right and opportunity to be confronted with, and to cross-examine, all witnesses alleging the appropriateness of his admission to residential care. All evidence shall be presented according to the usual rules of evidence. All stages of each proceeding shall be stenographically reported. The burden of proof shall be on the party alleging the appropriateness of the applicant’s admission to residential care. The burden of proof shall be by clear and convincing evidence. In all cases, the court shall issue findings to support its decision and state the basis for such findings.
(e) If the examining commission finds the examined person to be retarded or developmentally disabled and in need of treatment and rehabilitation within residential services of the retardation program of the department, these findings shall be reported to the court. The department shall then inform the court of all available services for the person. The court may order the involuntary admission of the person to residential services of the department. If the evidence presented to the court is not sufficient to warrant involuntary admission to residential services, but the court feels that residential services would be beneficial, the court may recommend that the person seek voluntary admission. The order of involuntary admission to residential care shall be accompanied by the report of the examining commission; shall explicitly document the degree of retardation, the purpose to be served by residential care, and the least restrictive placement for the person; and shall include copies of any other records that may be required by the department. Upon receiving the order and records, the department shall, within 45 days, provide the court with a copy of the person’s habilitation plan outlining treatment and rehabilitative programs and documenting that the person has been placed in the most appropriate, least restrictive, and most cost-beneficial residential facility. (Emphasis added.)

On November 14, 1975, appellant was charged by information with lewd assault upon a child. He was found incompetent to stand trial and was committed to the Division of Mental Health. A hearing examiner authorized continued hospitalization at the Florida State Hospital in Chattahoochee. By letter dated January 24, 1977, the state hospital recommended that appellant be found not guilty by reason of insanity. Appellant was so adjudicated by written judgment filed February 11, 1977.

By a petition dated August 2, 1977, the hospital staff instituted involuntary hospitalization proceedings against appellant under Sections 394.451-.4781, Florida Statutes (1977), the Baker Act. Subsequent to filing the petition, the hospital placed appellant on voluntary status; therefore, the petition was denied.

By petition filed on March 9, 1978, the state hospital sought appellant’s involuntary admission to residential services under Chapter 393, Florida Statutes (1977), the Retardation Prevention & Community Services Act. Appellant was discharged from the Florida State Hospital on April 20,1978.

The trial court appointed an examining commission of local experts, pursuant to Section 393.11, by order filed September 21, 1978. A hearing was subsequently held, at the conclusion of which appellant was committed to the Department of Health and Rehabilitative Services (HRS) for treatment at a residential retardation facility.

Appellant contends that Section 393.11 is unconstitutional on its face because it does not provide specific criteria which must be met before a mentally retarded person can be involuntarily hospitalized. The statute does set forth criteria for the examining commission to utilize in recommending involuntary hospitalization: “If the examining commission finds the examined person to be retarded or developmentally disabled and in need of treatment and rehabilitation within residential services of the retardation program of the department, these findings shall be reported to the court.” Section 393.11(2)(e). However, the statute goes on to authorize the court, after having received the report of the committee, to “order the involuntary admission of the person to residential services . . . .” Id. At best we can assume only that the trial court is to utilize the criteria to be considered by the examining commission.

Appellant relies on In re Beverly, 342 So.2d 481 (Fla.1977), wherein the Florida Supreme Court found that Section 394.467, authorizing commitment of mentally ill persons, provided proper due process safeguards. In Beverly, the court found Section 394.467, Florida Statutes (1973) constitutional because subsection (1) defines specific criteria for involuntary hospitalization: “(a) Likely to injure himself or others if allowed to remain at liberty, or (b) In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf.”

The attack upon the constitutionality of Section 394.467 in Beverly was based upon the holding in Commonwealth ex rel. Fink-en v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975), that Pennsylvania’s involuntary commitment statute was unconstitutional. The Pennsylvania statute provided that a mentally disabled person should be involuntarily committed “[i]f . . . it is determined that such person is in need of care . .” Id. at 768 n. 5. In holding this statute unconstitutional, the court noted: “ ‘In need of care’ is' so broad as to be virtually meaningless.” Id. at 778. In Beverly the Florida Supreme Court quoted with approval this statement made by the Supreme Court of Pennsylvania.

The court in Beverly stated that the statutory standards in Section 394.467(1) are more precise than those discussed in Commonwealth ex rel. Finken v. Roop, supra, and that the language adequately specifies what conditions will subject a person to involuntary commitment. The Beverly court explained.

The statutory authority for the judge to involuntarily hospitalize if the person lacks “sufficient capacity to make a responsible application on his own behalf” is grounded on the parens patriae power which is vested in the states. Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 888, 31 L.Ed.2d 184 (1971).

Id. at 485. The court also quoted Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974): “Commitment on account of dangerousness to others serves the police power . . .” Id. at 485. The court held that Section 394.467 is constitutional because it is a valid exercise of the state’s parens patriae power and police power and the language of the statute itself limits involuntary commitment to those persons over whom the state may properly exercise these powers, i. e., those who are mentally ill and who lack “sufficient capacity to make a responsible application” on their own behalf or are likely to injure themselves or others.

Civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Commitment of retarded persons is in many respects analogous to commitment of mentally ill individuals, and we think the mentally retarded are as deserving of due process protection as the mentally ill. Section 393.11 does not contain any standards providing due process protection. Even assuming the language “in need of treatment and rehabilitation,” was intended to be the criterion for involuntary hospitalization in Section 393.11, this language is almost identical to the language “[i]n need of care” found inadequate to provide protection in Beverly.

Substantive due process requires that state action must be reasonably related to a legitimate state interest, and if a fundamental right is involved, then a state may not act only if it is necessary to promote a compelling state interest. Roe v. Wade, 410 U.S. 113,93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Since the right to liberty is a fundamental right, the state must show a compelling interest before it may involuntarily commit a person under either its parens patriae power or its police power.

Since the state interest in acting as par-ens patriae is premised on the need for the state to act to protect the well-being of its citizens when they cannot care for themselves, the imposition of involuntary commitment would seem necessary to vindicate that interest only when an individual is incapable of making his own evaluation of his need for psychiatric treatment.

Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1213 (1974). The interest of the state in involuntarily committing a person for hospitalization should be balanced against the interests of the individual. In Beverly, the court cited with approval Lynch v. Bax-ley, supra, at 390:

Consequently, in order to deprive a person alleged to be a danger to himself alone of the right to choose between treatment and liberty, the state must first demonstrate that, because of his mental illness, he lacks the capacity to weigh for himself the risks of freedom and the benefits of hospitalization.

In re Beverly, supra, at 485.

The state’s police power is a plenary power to make laws and regulations for the protection of the public health, safety, welfare, and morals. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). The police power focuses on the interests of society rather than the interests of the individual. The police power must be exercised to promote public interests that require such interference, and the means utilized must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The protection of the public from dangerous persons is a compelling interest which would justify use of the police power by the state.

Section 393.11 in its present form is not a proper exercise of either the state’s parens patriae power or its police power because, as we have indicated, the statute includes no criteria limiting persons who may be involuntarily committed to those who lack the capacity to weigh for themselves the risks of freedom and the benefits of hospitalization and/or to those who are dangerous to themselves or others.

Consequently, we hold that Section 393.11, Florida Statutes (1977) is unconstitutional. Commitment under this statute deprives an individual of his right to substantive due process. Thus, the trial court’s commitment order must be reversed. This opinion is not, however, to be construed as precluding the state or any other proper party from seeking commitment of appellant under Chapter 394, Florida Statutes (1979).

Accordingly, the trial court’s order of commitment is REVERSED.

OTT and DANAHY, JJ., concur.

      . Amicus curiae briefs were filed by the Department of Health and Rehabilitative Services and the Governor’s Commission on Advocacy for Persons with Developmental Difficulties, which greatly helped to clarify the issues involved here.

      . Section 394.467 has subsequently been amended. Section 394.467(1), Florida Statutes (1979) provides:
      (1) CRITERIA.—
      (a) A person who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily hospitalized pursuant to such finding if he is mentally ill and, because of his illness, is manifestly dangerous to himself or others pursuant to s. 394.901.
      (b) Any other person may be involuntarily placed if he is mentally ill and, because of his illness, is:.
      1. Likely to injure himself or others if allowed to remain at liberty, or
      2. In need of care or treatment which, if not provided, may result in neglect or refusal to care for himself, and such neglect or refusal poses a real and present threat of substantial harm to his well being.

      . “Dangerous to others” encompasses the threat of emotional as well as physical injury. In re Beverly, 342 So.2d 481 (Fla. 1977).

      . Such action may, indeed, be appropriate in view of findings by the psychiatrist and psychologist who examined appellant that appellant could constitute a danger to others.


author: OTT, Acting Chief Judge.

text:
    Anna Doris LABARRE, Appellant, v. Peter John LABARRE, Appellee.
    No. 79-319.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.
    Paul S. Elliott, Tampa, for appellant.
    C. Gilbert Pierce, Tampa, for appellee.
   OTT, Acting Chief Judge.

During the brief marriage of the parties they purchased a business which they operated by their joint efforts and under a joint license. The trial court found upon substantial evidence that appellant has a special equity in the business to the extent of $10,000, and that appellee has a special equity therein to the extent of $5,000. We find no error in those findings.

However, in an effort to bring the litigation between the parties to an early end, the court then provided in its final judgment that the business should be sold, that appellant should receive the first $10,000 of the net proceeds, that appellee should receive the next $5,000, and that they divide any excess equally.

While we share the concern of the trial court that the parties put behind them as quickly as possible the financial repercussions of the failure of their marriage, we must reverse that portion of the judgment ordering the sale of the business. Neither party had requested the partition of any marital assets, nor did they stipulate to such at trial. That being the case, the order exceeded the authority of the court. Hazelwood v. Hazelwood, 345 So.2d 819 (Fla.4th DCA 1977); Niemann v. Niemann, 294 So.2d 415 (Fla.4th DCA 1974), writ discharged 312 So.2d 733 (Fla.1975).

We have examined appellant’s other assignments of error and find them to be groundless. The judgment is reversed insofar as it orders the sale of the business and the case is remanded to the court below with instructions to modify the judgment so as to merely grant the special equities already found. In all other respects the judgment is affirmed. Let the parties bear their own costs on this appeal.

RYDER and DANAHY, JJ., concur.


author: PER CURIAM.

text:
    Johnny JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1220.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.
    W. C. McLain of Smith & Carta, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon consideration of the record and briefs and after oral argument, we conclude that only one point raised by appellant has merit: his sentences are excessive.

Appellant pled nolo contendere and was found guilty of resisting an officer with violence and three counts of attempted second-degree murder. He was given concurrent sentences of three years in prison to be followed by twenty-seven years probation on each count.

The probationary periods are excessive. Resisting an officer with violence is a third-degree felony, § 843.01, Fla.Stat. (1977), punishable by a maximum sentence of five years. § 775.082(3)(d), Fla.Stat. (1977). Second-degree murder is a first-degree felony. § 782.04(2), Fla.Stat. (1977). An attempt to commit a first-degree felony is a second-degree felony, § 777.04(4)(b), punishable by a maximum sentence of fifteen years. § 775.082(3)(c). The period of probation combined with the period of incarceration may not exceed the maximum period of incarceration provided by statute for the offense charged. State v. Holmes, 360 So.2d 380 (Fla.1978). Assuming that appellant was not sentenced as a habitual offender, the maximum probationary periods are two years on the charge of resisting an officer and twelve years on the attempted second-degree murder charges.

Accordingly, the judgments are affirmed, but the cause is remanded for correction of the sentences.

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

      . The transcript of the sentencing hearing was not made a part of the record.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. W. O. R., a Child, Appellee.
    No. 79-1807.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Ellen I. Hoffenberg, Asst. Public Defender, Clearwater, for appellee.
   CAMPBELL, Judge.

The state appeals the trial court’s order which granted, on grounds of an illegal stop, appellee’s motion to suppress certain tangible evidence. We reverse.

The only witness at the suppression hearing was the deputy sheriff who stopped appellee. He testified that as he was travelling south on 34th Street (U.S. 19) in St. Petersburg at 11:30 P. M., on his way back to headquarters to go off duty, he spotted appellee on the east side”" of the street. The deputy would have continued on but for the fact that he heard two males, accompanied by two or three females, on the other side of the street yelling at appel-lee. Because he had worked that area for three years and had had numerous contacts with appellee, the deputy turned his cruiser around and pulled up next to appellee to ascertain what the commotion was about. Appellee told the deputy that he did not know why they were yelling at him and that he was on his way home. (The deputy knew, however, that appellee lived ten blocks in the opposite direction.) The individuals across the street were asked if they wanted to file a complaint, but they replied that they did not and the deputy sent them on their way.

When he turned back to appellee, the deputy noticed that he was carrying a camera. The deputy was familiar enough with cameras to recognize that it was worth over $200. He also knew that appellee was sixteen years of age and did not work, lived ten blocks in the opposite direction and had a reputation as a “local thief”. The deputy’s suspicions were further aroused when appellee stated that a friend had given him the camera and that he did not know how to open it. The deputy asked if he could look at it and appellee handed it over. After examining the camera for a few seconds in an unsuccessful attempt to open it and get the serial numbers, the deputy returned the camera and sent appellee on his way. This encounter lasted no longer than a minute.

When the deputy returned to headquarters, he completed a Field Interrogation Report (F.I.R.) which referred to appellee as a “local thief” and contained a description of the camera. No mention was made of the altercation which prompted the stop. The camera description was subsequently matched with the description of a camera which had been reported stolen. Appellee was then arrested, the camera seized, and a petition for delinquency was filed charging him with grand theft.

Despite the deputy’s repeated insistence that he stopped appellee because of the altercation, the trial court found that his testimony “contained so many conflicts that it [was] really difficult to determine what he was stopping for,” and concluded that appellee was stopped because he was carrying a camera.

While we have been unable to discern any inconsistencies in the deputy’s testimony, we conclude that even if the deputy had, in fact, initially stopped appellee because he had observed him with a camera, he had a founded suspicion for doing so. We have repeatedly held that “founded suspicion” of criminal activity does not have to rise to the level of probability of guilt required for a finding of “probable cause”. State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). Of course, suspicion is more than “random selection, sheer guesswork, or hunch.” State v. Stevens, 354 So.2d 1244, 1247 (Fla.4th DCA 1978). Rather, “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” Id. In the instant case, it was late at night; appellee was carrying an identifiably expensive camera; and the deputy had had previous encounters with appellee and knew him as a “thief”. While we recognize that any one of these facts alone would not have justified the stop, Moorehead v. State, 378 So.2d 123 (Fla.2d DCA 1980); Parker v. State, 363 So.2d 383 (Fla.3d DCA 1978); Vollmer v. State, 337 So.2d 1024 (Fla.2d DCA 1976), together they constituted those specific and articulable facts which justified the’ deputy’s suspicion that appellee was or had been engaged in criminal activity. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. I, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Stevens, supra.

For the foregoing reasons, we reverse the order granting the motion to suppress and remand for further proceedings.

BOARDMAN, Acting C. J., and RYDER, J., concur.

      . We assume that the trial court inferred an inconsistency because the deputy had not mentioned the altercation in the F.I.R., nor did he in his deposition testify with as much detail concerning the altercation and his testimony concerning the sequence of the events surrounding the altercation was not in precisely the same order. The deputy explained on cross-examination, however, that he did not feel the altercation was particularly relevant for the purposes of the F.I.R., a form which allows for only a brief description of events observed by the officer. As for his failure to fully explain the details surrounding the altercation at deposition, the deputy pointed out that he was never asked specific questions about it.


text:
    Kelvin L. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1839.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.,
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Section 39.111(6)(d), Florida Statutes (1979), requires that a trial court, when imposing adult sanctions on a juvenile convicted of a crime, make findings of fact and set forth reasons showing those sanctions to be in conformity with the criteria of Section 39.111(6)(c). The record here reveals that the trial judge failed to refer to all of the six criteria mentioned in that section when he sentenced appellant.

We affirm, the judgment of the trial court, but vacate the sentence and remand for resentencing pursuant to Section 39.-111(6). See Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979).

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


text:
    STATE of Florida, Petitioner, v. Samuel JOHNSON, Respondent.
    No. 79-2011.
    District Court of Appeal of Florida, Second District.
    April 2, 1980.

      James A. Gardner, State’s Atty., and H. H. Hester, III, Asst. State’s Atty., Braden-ton, for petitioner.
    Elliott C. Metcalfe, Jr., Public Defender, and Zollie S. Cowart, III, Asst. Public Defender, Bradenton, for respondent.
   BOARDMAN, Acting Chief Judge.

The state by petition for common law certiorari asks this court to quash several pretrial, evidentiary rulings by the trial court. After consideration of each point raised, we conclude that only one of the trial court’s rulings departed from the essential requirements of law; accordingly, we grant certiorari in part.

Robert W. Goolsby and respondent Samuel Johnson were charged with two counts of sexual battery and one count of burglary. During the course of the sexual battery, respondent allegedly struck the victim, causing Goolsby to say, “Don’t hurt her, Sam.” Respondent filed the motion in limine seeking to exclude the victim’s testimony concerning Goolsby’s statement from evidence. The trial court concluded that the statement was hearsay and granted the motion.

We do not necessarily agree that the statement constituted hearsay, but even if it was hearsay we hold that the trial court departed from the essential requirements of law in failing to find that this statement was admissible under the res gestae or excited utterance exception to the hearsay rule.

The new evidence code is not applicable here, its effective date being subsequent to the date of respondent’s trial. However, a review of its pertinent provisions is enlightening. The former res gestae exception to the hearsay rule is not included in the new evidence code. Section 90.803(2), Florida Statutes (1979), however, provides for a newly designated “excited utterance” exception to the hearsay rule. This section defines an excited utterance as: “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by. the event or condition.”

Goolsby’s statement clearly falls within the definition of an excited utterance. Therefore, the only question is whether Section 90.803(2) provides for a new exception to the hearsay rule in Florida, or merely renames an existing exception. The sponsor’s note to this section states that the section does not change the law of evidence, but merely affects a change in terminology. The note indicates that the excited utterance theory is not a new theory in Florida evidence but is simply one element of the oft-criticized res gestae rule, which served as a catchall provision for several very distinct exceptions to the hearsay rule. Under the new code, the res gestae rule has been broken down into its various components.

We conclude that the excited utterance exception is not a new exception to the hearsay rule, but has always been one component of the loosely defined res gestae exception. Thus, the trial court departed from the essential requirements of law in granting the motion in limine. We therefore grant certiorari as to this point and quash the order granting the motion in limine. The petition for certiorari is otherwise denied.

Certiorari GRANTED IN PART and DENIED IN PART.

SCHEB and CAMPBELL, JJ., concur.

      . Goolsby was tried separately and is not involved in this appeal.


author: PER CURIAM. ANSTEAD, Judge,

text:
    David W. FAMIGLIETTI and 1976 Mercedes Benz VIN # 10704412028961, Appellants, v. STATE of Florida ex rel. BROWARD COUNTY, Florida, for the use and benefit of Broward County Sheriff's Office, Appellee.
    No. 79-1152.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied April 30, 1980.
    Mitchell D. Aronson and Robert C. Hill of Engel, Aronson, Fried & Cohn, Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal from a final judgment of forfeiture of a motor vehicle pursuant to Chapter 943, Florida Statutes. Sometime prior to September 11, 1978, the appellant, Famiglietti, filed a suit for replevin against the sheriff of Broward County in order to recover possession of a 1976 Mercedes Benz. On September 11, the state commenced this proceeding by filing a “Petition For Rule To Show Cause Vehicle Forfeiture” pursuant to Sectioti 943.44, Florida Statutes (1977). Attached to the petition was a copy of the appellant’s replevin complaint.

The state’s petition alleged that the automobile in question was used to facilitate the trafficking in a controlled substance in violation of Section 943.43, Florida Statutes. The petition asked the court to issue a rule to show cause, to hold a hearing on the rule, and to order that the vehicle be forfeited to the petitioner. The court issued a rule to show cause which required the appellant “to show cause, if any you can, before me [the court] in my Chambers at the Broward County Courthouse” on December 13, 1978, why the vehicle in question should not be forfeited. On September 20th appellant filed a motion to dismiss the “Petition For Rule To Show Cause Vehicle Forfeiture.” The court denied the motion on October 3, 1978. Also on October 3rd the sheriff served the appellant with a copy of the rule to show cause and a summons which directed the appellant to serve any written defenses to the petition on an assistant state attorney within 20 days of service of the summons.

On December 15, 1978, the state notified appellant’s counsel that the court would hold a hearing on the rule to show cause on February 1, 1979. The state subsequently reset the hearing date for May 1, 1979. However, on February 5, 1979, the state filed a motion for a default on the ground that appellant had failed to file any responsive pleadings to the September 11th petition. On February 28, 1979, the court entered an order in which the court found that appellant was in default and had been since 10 days after his motion to dismiss had been denied. Thereafter the court entered an ex parte final judgment of forfeiture and the May 1 hearing date was can-celled.

On appeal Famiglietti contends the trial court erred in entering a default against him and then proceeding to enter an ex parte final judgment.

It is with reluctance that I express my disagreement with the trial court in this case, because his perception of the proper procedure to follow in a Section 943.44 forfeiture proceeding certainly appears to be the better practice and comports with most civil judicial proceedings. In the usual civil proceeding the party seeking relief filed a complaint and the sheriff serves the defendant with process. The defendant then must file a responsive pleading within a specified time. Each step is mandated by established court rules. But this forfeiture proceeding is based upon a statute. Nowhere in that statute is there a provision that directs a vehicle owner to file a response to the state attorney’s petition for forfeiture. The statute simply provides for the filing of a petition and issuance of a rule to show cause. The rule to show cause issued herein paraphrased directed the appellant to show cause before the court in chambers on a specific date and time why the vehicle in question should not be forfeited for the reason that it was used in violation of Sections 943.42 through 943.44, Florida Statutes.

Appellant points out that there are other statutes authorizing forfeiture which expressly provide that a person against whom a forfeiture proceeding is pending shall file a pleading after service of a rule or order to show cause. Rules to show cause appear to be falling out of vogue. See Trawick, Florida Practice and Procedure § 9-2 (1979); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1195. However, in its day a rule to show cause had a function; namely, to give notice of a hearing of a motion. In 60 C.J.S. Motions and Orders § 20a, pp. 32-33, this function is described as follows:

Use as short notice of motion. The most usual use of orders to show cause is as a method of shortening the notice of motion prescribed by law; and, when so used, it is exactly equivalent to, and a substitute for, a notice of motion, and no further notice is necessary if the order to show cause contains, as it should, the requisites of a notice, although a service of a notice also in such case [had] been held to be unobjectionable. An order to show cause has been said to be merely notice of the pendency of a summary proceeding or a notice of motion and a citation to the party to appear at a stated time and place to show cause why a motion should not be granted. (Footnotes omitted)

Trawick, supra, says, “A rule to show cause is notice of hearing signed by a judge.” Surely one would not suggest that a party is required to respond to a notice of hearing or be defaulted. Similarly, it would not appear proper for courts to enter defaults for lack of answers to rules to show cause in actions such as injunction proceedings, divorce cases and receivership proceedings.

I agree with the trial court that it would be the better practice for the party who is directed to show cause to file a responsive pleading, simply because it may facilitate the hearing by framing the issue between the parties. However, unless some statute, procedural rule, or court order mandates a written response to an order to show cause issued pursuant to Section 943.44, I am reluctant to affirm a default judgment forfeiting property because the person to whom the order to show cause is directed has filed no written response to the rule. In this ease there can be no question appellant intended to pursue his rights to the vehicle involved in this cause, as he had filed a suit for replevin against the sheriff for its return and a copy of that petition and the summons issued thereon were attached as exhibits to the petition for forfeiture in this proceeding.

For these reasons, I would reverse the judgment appealed from and remand the cause to the trial court with directions to set ■ the forfeiture proceeding for hearing before the court. If the trial court feels a response to the rule to show cause is necessary, the court could direct the appellant to file such a response forthwith.

      . A forfeiture proceeding authorized by the Uniform Contraband Transportation Act, Sections 943.41-943.44, Florida Statutes (1977), is a civil proceeding. State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943); Knight v. State, 336 So.2d 385 (Fla. 1st DCA 1976).

      . §§ 116.25(2) and 562.40, Fla.Stat. (1977).


author: HUBBART, Judge.

text:
    The STATE of Florida, Appellant, v. Lloyd GARMISE, Appellee.
    No. 78-2185.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Rehearing Denied May 5, 1980.
    Janet Reno, State’s Atty. and Arthur Joel Berger, Asst. State’s Atty., for appellant.
    Roy E. Black, Miami, Carlton, Fields, Ward, Emmanuel, Smith & Cutler and Woodrow Liles, Tallahassee, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HUBBART, Judge.

This is an appeal by the state from an order of the Dade County Circuit Court vacating a prior criminal conviction under Fla.R.Crim.P. 3.850. We have jurisdiction to entertain this appeal. § 924.07(2), Fla. Stat. (1979).

The central issue presented for review is whether the ineffective assistance of a defendant’s privately retained counsel constitutes a valid ground for collateral attack of a criminal conviction under Fla.R.Crim.P. 3.850 where such ineffective assistance renders the defendant’s trial a farce and a mockery. Until changed or modified by the Florida Supreme Court, we continue to hold, in accord with prior Florida law, that the ineffective assistance of defendant’s privately retained counsel cannot constitute a valid ground for collateral attack of a criminal conviction under Fla.R.Crim.P. 3.850. We, accordingly, reverse.

I

The facts of this case as they pertain to the issue on appeal are as follows. On January 15, 1974, the defendant Lloyd Gar-mise was indicted by the Dade County Grand Jury for the crime of first degree murder. The defendant through his father retained Joseph Panzer, an attorney licensed to practice law in the state of New York, to represent his son on this charge. Mr. Panzer in turn associated Arthur Ad-dess, an attorney licensed to practice law in the state of Florida, to assist him in the preparation of the defense in the upcoming trial. Mr. Addess successfully obtained an order from the trial court allowing Mr. Panzer to represent the defendant in this case pro hoc vice. On February 20, 1974, the defendant through Mr. Addess entered a written plea of not guilty. On May 4,1974, the defendant was brought to trial before the Dade County Circuit Court. The defendant was represented at that trial by his two privately retained counsel, Mr. Panzer and Mr. Addess. The jury returned a verdict of guilty as charged, but recommended that he be sentenced to life imprisonment. The trial court followed the jury’s recommendation and sentenced the defendant to life imprisonment. The defendant’s conviction was affirmed on appeal. Garmise v. State, 311 So.2d 747 (Fla. 3d-DCA 1975), cert. dismissed 328 So.2d 841 (Fla. 1976), cert. denied 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976).

On June 27, 1978, the defendant through his presently retained counsel filed a motion to vacate his conviction pursuant to Fla.R. Crim.P. 3.850 stating as the sole ground therefor that the defendant had been denied effective assistance of counsel at his trial. On September 9, 1978, the trial court conducted an extensive evidentiary hearing concerning the ineffective assistance of counsel claim. On November 6, 1978, the trial court entered a comprehensive written order concluding that the defendant’s privately retained counsel rendered such ineffective assistance of counsel to the defendant that the defendant’s trial thereafter became a farce and a mockery. The basis for this judgment was defense counsel’s lack of pretrial preparation, the paucity of pretrial motions and pleadings, and the consequent failure to follow up extremely promising defenses of self defense and mental incompetency. It was the trial court’s conclusion that the defendant’s trial was a farce and a mockery of justice due to the total lack of preparation by his counsel. The trial court accordingly vacated the defendant’s conviction herein and set the cause for a new trial. The state appeals.

II

It is the established law of this state that the ineffective assistance of court-appointed counsel for an insolvent criminal defendant at trial constitutes a valid ground for collateral attack of the defendant’s criminal conviction under Fla.R. Crim.P. 3.850. Jackson v. State, 353 So.2d 940 (Fla. 3d DCA 1978); McCrae v. State, 313 So.2d 429 (Fla. 3d DCA 1975); Parker v. State, 295 So.2d 312 (Fla. 1st DCA 1974); Potts V. State, 242 So.2d 729 (Fla. 2d DCA 1971); Meinsen v. State, 240 So.2d 188 (Fla. 2d DCA 1970); Plymale v. State, 182 So.2d 57 (Fla. 3d DCA 1966); Wade v. State, 177 So.2d 695 (Fla. 2d DCA 1965); Taylor v. State, 171 So.2d 402 (Fla. 2d DCA 1965); Sam v. State, 167 So.2d 258 (Fla. 2d DCA 1964); Simpson v. State, 164 So.2d 224 (Fla. 3d DCA 1964). The foregoing line of cases have held that the services of a defendant’s court-appointed counsel are ineffective or incompetent if they rendered the trial a farce and a mockery. This standard has recently been changed by the Florida Supreme Court to “whether counsel was reasonably likely to render and did render reasonably effective [assistance of] counsel based on the totality of the circumstances.” Meeks v. State, 382 So.2d 673 (Fla.1980).

A different rule prevails, however, where, as here, the defendant is represented by privately retained counsel of his own choice. Florida courts in a long line of decisions have consistently held that a defendant is precluded from attacking the competency of his privately retained counsel as a ground for collateral attack of his criminal conviction under Fla.R.Crim.P. 3.850. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967) citing with approval Everett v. State, 161 So.2d 714 (Fla. 3d DCA 1964); Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA 1979); O’Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978); Capo v. State, 363 So.2d 410 (Fla. 1st DCA 1978); Crespo v. State, 339 So.2d 697 (Fla. 3d DCA 1976); Suarez v. State, 338 So.2d 546 (Fla. 3d DCA 1976); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So.2d 337 (Fla. 3d DCA 1969); Frizzell v. State, 213 So.2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So.2d 33 (Fla. 2d DCA 1968); Simpson v. State, 164 So.2d 224, 226 (Fla. 3d DCA 1964). We are not at liberty to upset such an established line of cases in this state, and, in the absence of a contrary rule by the Florida Supreme Court, we are compelled to reverse the order under review as the order stands in direct conflict with our existing law. As the cases clearly state, the defendant by retaining his own counsel has waived any right to attack the competency of his counsel as a ground for post-conviction relief.

Ill

We recognize that other jurisdictions have allowed criminal defendants to collaterally attack their criminal convictions on the ground that their privately retained counsel rendered a variously-described level of ineffective assistance of counsel at trial and that reasonable arguments may be adduced in support of such a practice. Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974) (en banc); Annot. 26 A.L.R.Fed. 218 (1974). Still, we cannot help noting that the Florida rule is not without sound support.

Ordinarily, it seems clear that a defendant who has been otherwise lawfully convicted in a criminal case ought not, subsequent to his conviction, be awarded a new trial because of the negligence of his lawyer. In our adversary system of justice, it is assumed that duly licensed lawyers representing contending parties in a criminal or civil case, will vigorously, albeit diversely, represent their respective clients. It is thought ill-advised to conduct post-mortems concerning the “effectiveness” of respective counsel, at least insofar as it may lead to upsetting otherwise valid criminal or civil judgments. The finality of such judgments, the public confidence therein, and the integrity of the adversary system, all seem to dictate such a result. The remedy, if any, for alleged attorney negligence in the representation of clients is a tort action for legal malpractice, together with bar disciplinary proceedings, rather than the award of a new trial to the unsuccessful litigant.

As already stated, however, one narrow exception has been recognized to the above general practice. In criminal cases, an insolvent defendant who is represented by court-appointed counsel may collaterally attack his subsequent conviction on the ground that his counsel failed to render effective assistance of counsel. This exception rests squarely on the state’s constitutional obligation, as a matter of due process, to supply effective counsel to a criminal defendant who is financially unable to retain his own counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As the state has no such constitutional obligation with reference to any other litigant, criminal or civil, in our adversary system of justice, it is thought that the present exception should not be expanded to include, as urged, solvent criminal defendants who retain their own counsel. If such an expansion is recognized, there would seem no principled basis not to extend the exception as well to all civil litigants, which would necessarily swallow up what we conceive to be a salutory general practice. We, therefore, conclude that the Florida law in this area rests on sound ground, and, in view of its well-established nature, should not be changed by this court.

The order under review is reversed and the cause is remanded to the trial court with directions to reinstate the defendant’s prior judgment of conviction and sentence.

      . The same or similar issue is presently pending before the Supreme Court of Florida in Vagner v. Wainwright, case no. 56,201.

      . The order under review reads in pertinent part as follows:
      “THIS CAUSE came on before me on July 13, 1978 pursuant to Defendant’s Petition to Vacate Judgment and Sentence pursuant to Fla.R.Crim.P. 3.850; the State agreed with Defendant that his Petition stated a prima facie case for relief, and the Court ordered an evidentiary hearing. At the evidentiary hearing held September 8, 1978, the Court heard testimony and examined the entire record of the proceedings of Defendant’s case and heard the arguments of the parties. The Court being fully advised in all the facts and issues of law relevant to these proceedings makes the following findings of fact and conclusions of law.

        FINDINGS OF FACT

      1.1 Defendant’s father, IRWIN GAR-MISE, retained JOSEPH PANZER, an attorney licensed to practice law in the State of New York, to represent his son on the charge of first degree murder. Mr. Panzer associated local counsel, ARTHUR ADDESS, to assist him in preparation of the defense and to assist in the upcoming trial; Addess additionally successfully moved Panzer’s admission to practice law in the State, pro hoc vice.

      1.2 An examination of the record of these proceedings reveals that defense counsel failed to perform the most rudimentary of requirements to properly represent the Defendant. The only pre-trial motion or pleading filed by them was a Notice of Appearance. No demand for discovery was filed, although Florida has the most progressive discovery rule in the United States. Fla.R. Crim.P. 3.220 et seq: counsel failed to file any motions for favorable evidence, or to dismiss.
      1.3 Defense counsel failed to file or litigate any motions to suppress evidence or statements obtained in violation of the United States or Florida Constitutions. Based on my examination of the records in this cause and of the testimony presented at the eviden-tiary hearing, certainly arguable and justicia-ble motions to suppress evidence and statements of the Defendant could and should have been presented to the trial court. Compounding these omissions counsel failed to make any objection to the admission of the same evidence during the trial, thereby waiving important fundamental constitutional rights of the Defendant.
      1.4 Defendant requested counsel at the time of his arrest (R. 331) and so advised Panzer.
      1.5 Counsel for Defendant failed to perform any pre-trial investigation whatsoever. Addess testified that he advised Panzer that he must conduct an investigation into the facts of the charges but that Panzer refused. The Court finds that counsel made no independent investigation nor utilized any of the Florida Rules of Criminal Procedure to conduct an investigation. Under these Rules, there exists no excuse why any criminal defendant can not adequately investigate his case and prepare for trial.
      1.6 An examination of the police reports, admitted into evidence upon stipulation of the parties, reveals a plethora of facts which were favorable to Defendant and which effective trial counsel could have utilized to prove self-defense at the trial. This Court finds that a Motion for Favorable Evidence would have required the State to turn over to Defendant large portions of these reports. The most obvious areas are the statements of the investigation officers, medical examiner, and assistant State Attorney, that all the facts found at the house were consistent with the Defendant’s claim of self-defense. Although no intervening facts were found by the police investigators before the trial, the trial prosecutor used different witnesses and adjusted his case to disguise the favorable evidence as a good advocate should; unfortunately for Defendant his own attorneys assisted the prosecutor in this endeavor.
      1.7 In the police reports the two main State witnesses, DOUGLAS HUBBARD and RICHARD KAREL, gave direct contradictory statements to their trial testimony. In the reports these witnesses stated that Defendant and the deceased had no prior conflicts nor had Defendant made any threats to the deceaséd. At the trial both testified that pri- or to the shooting, both fights and threats occurred; this was the only testimony elicited by the State to prove premeditation.
      1.8 Defendant began seeing a psychiatrist immediately after the shooting by advice of his parents. The psychiatrist, JOSEPH MAYER, M. D., treated Defendant on a twice-weekly basis from November 1973 to April 1974. Dr. Mayer told Panzer that Defendant was not competent to assist in his defense and to stand trial for the shooting. Mayer requested counsel to consult with him on the issue. Addess testified that upon receiving this information he urged Panzer to follow up on it and, at the very least, to talk to Mayer; Panzer totally neglected even to call Mayer and discuss the problem.
      1.9DR. CHARLES GARRETT, Chief Deputy Medical Examiner for Dade County, went to the scene of the homicide and examined the body and all the surrounding circumstances to the shooting. He advised the police that the shooting appeared to be in self defense. At the inquest held in this cause Dr. Garrett testified that all the circumstances pointed to self-defense. At the trial the State did not call Dr. Garrett as a witness but called JOSEPH DAVIS, the Medical Examiner, who had a different opinion — but he did not go to the scene of the shooting or do the extensive investigation that Garrett did. Defense counsel, despite urging by Defendant, failed to' subpoena or call Garrett as a witness, and Defendant lost this favorable testimony.

        CONCLUSIONS OF LAW

      2.1 Defendant’s trial was a farce and a-mockery of justice due to the total lack of preparation by his counsel. One of Defendant’s two trial counsel testified at the eviden-tiary hearing and admitted that no investigation of any type was conducted in this, a capital murder case. This Court finds that counsel’s conduct could not be found competent under any standard that might be applied.
      2.2 Counsel for Defendant habitually disregarded available admissible evidence which could have been utilized to Defendant’s favor; this failure prejudiced Defendant in his defense at trial. These errors undercut the reliability of the trial process and prejudiced Defendant’s right to a fair trial.
      2.3 This Court is fully aware of the case law of this State regarding relief for incompetence of privately retained counsel; however, this Court has not found a case where an express finding was made that privately retained counsel was so incompetent that the trial was a farce and mockery of justice and yet denied relief. The Court believes that, under the law, such a finding requires that a new trial be granted. Therefore, it is
      ORDERED AND ADJUDGED that Defendant is granted a new trial.”

      . In Douglas v. State, 373 So.2d 895, 896 (Fla. 1979), the Florida Supreme Court refused to overrule Cappetta v. Wainwright, supra, which supports further our reluctance to upset the existing law herein. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).

      . We are unaware of any authority in Florida which allows an unsuccessful litigant in a civil case to collaterally attack an adverse judgment under Fla.R.Civ.P. 1.540 on the ground that his lawyer did not render effective assistance of counsel in the trial court. Indeed, we know of no such authority in any jurisdiction in this country.


author: BASKIN, Judge.

text:
    Michael James WILSON et al., Appellants, v. Francis WILSON et al., Appellees.
    No. 79-194.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Cohen & Cohen, Miami Beach, for appellants.
    Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   BASKIN, Judge.

Appellants seek review of a directed verdict in favor of appellees entered by the trial court after the jury returned a verdict in favor of appellants.

Michael Wilson, a minor, was severely burned when he and some other children ignited gasoline. Claiming that the gasoline had been obtained from a neighbor’s garage, Michael and his mother filed suit against both the owners and the occupants of the neighboring property. Appellants alleged that storing gasoline in an area accessible to children constituted negligence causing Michael’s injuries.

A default judgment was entered against the tenants, but the case proceeded to a jury trial on the question of the landlords’ liability and on the amount of damages. The jury returned a verdict in favor of appellants finding that the minor’s negligence contributed 75% and the landlords’ negligence contributed 25% resulting in an award to the minor of $29,000 and $4,000 to his mother. The trial court then directed a verdict against appellants. We find no error in the decision of the trial court.

Although appellants contend the jury verdict was supported by evidence, testimony discloses that the landlords had no knowledge that gasoline was stored on the premises formerly lived in by them and subsequently rented to the tenants. Although they may have left some of their possessions in the garage, nothing indicated that the landlords stored gasoline in the garage annexed to the house. Michael was eight years old at the time of the incident. He was playing with the tenants’ children at their home when someone obtained gasoline from a gray can in the garage. The gasoline was then poured into a red cup and brought outside. He did not remember who obtained the gasoline or who poured it into the cup and ignited it. He stated that the gasoline could have come from another neighbor’s home. The landlords stated they never stored any gasoline in the garage. Tenant Ed Wilson testified that he could not remember if he had ever stored gasoline in the garage. His wife indicated that there might have been some, gasoline in the garage for the lawn mower. The evidence in the record is insufficient to support a jury verdict for appellants.

A landlord may be liable to third persons for injuries caused by defects in the leased premises. If premises are leased containing an incipient nuisance which becomes active by the tenants’ ordinary use, the landlord is liable to third persons injured as a natural consequence. Bowen v. Holloway, 255 So.2d 696 (Fla. 4th DCA 1971). In order to find liability on the part of the landlord, it is necessary for the injured party to show that the can with gasoline was left in the garage by the landlord and that the landlord knew that it contained gasoline. That showing was not made in the trial court. The record does not disclose that the landlords exercised control of the premises. The evidence was therefore insufficient to support the jury’s verdict.

There is no evidence which would lead to the conclusion that the landlord should have anticipated or foreseen the accident. Schnabel v. Mormann, 324 So.2d 197 (Fla. 1st DCA 1975).

In summary, appellees were not shown to have had knowledge, either actual or constructive, that the gasoline was on the premises. Under the circumstances in the record, it was not reasonable to expect appellees to foresee the injury that occurred. Liability for negligence in failing to maintain premises in a reasonably safe condition must be predicated on knowledge that a dangerous condition exists, so that in the exercise of ordinary care, action should be taken to remedy the situation. No liability can attach if it is not shown that the landlord had actual or constructive notice of the dangerous condition. This is especially true where the dangerous condition is traceable to acts of other persons. Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla. 1st DCA 1974).

The decision of the trial court is affirmed.

      . By coincidence, the parties are all surnamed Wilson: appellants, Michael James Wilson and Mary Wilson, his mother; appellees-landlords, Francis Wilson and Fannie Wilson; and the defendants-tenants, Ed Wilson and Trudy Wilson, who are not parties to this appeal.


text:
    Robert Leonard ROUNDS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1026.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Weiner, Robbins, Tunkey & Ross and Ronald Dion, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that (a) the defendant failed to preserve for appellate review the admissibility of the defendant’s statements to the police as he did not object at trial to the admission of such statements subsequent to the denial of his pretrial motion to suppress. Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978); Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1967); see Clark v. State, 363 So.2d 331 (Fla.1978); and (b) the trial court did not commit error in denying the defendants motion for judgment of acquittal and motion for new trial as the evidence presented at trial was sufficient to sustain a conviction for manslaughter and did not establish the defense of self defense or excusable homicide as a matter of law. Popps v. State, 120 Fla. 387, 162 So. 701 (1935); W. LaFave & A. W. Scott, Jr., Criminal Law 572, 574 (1972); Perkins on Criminal Law 54, 60 (2d ed. 1969).


text:
    Burton GREENBERG, Appellant, v. Patricia GREENBERG, Appellee.
    No. 79-1139.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Paul Gifford, Miami, for appellant.
    Talianoff & Rubin and George J. Talia-noff, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Castor v. Castor, 316 So.2d 588 (Fla. 1st DCA 1975); Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979).


text:
    Marlene HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1472.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Moran & Gold and George D. Gold, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Hudson v. State, 368 So.2d 899 (Fla.3d DCA 1979), cert. denied, 378 So.2d 345 (Fla.1979).


text:
    Geneva L. SUTTON, Appellant, v. Russell R. SUTTON, Appellee.
    No. 80-143.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.

      Krongold & Bass and Paul H. Bass, Miami, for appellant.
    No appearance, for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Following a judgment of dissolution of marriage, on motion of the wife, for failure of the husband to make certain payments which on final judgment he had been ordered to pay for benefit of the wife, the court entered a judgment against the husband for $5,000.00 for which execution was directed to be issued.

Thereafter, predicated upon her affidavit that said judgment was outstanding and unsatisfied, and a filed Sheriff’s affidavit showing an outstanding, unsatisfied execution on the judgment, the wife moved (as provided for in Section 56.29, Florida Statutes (1977)) for an order to require the husband, as the defendant in execution, to appear before the court or a master appointed by the court, to be examined concerning his property. The court, by an order which did not assign reasons therefor, denied the wife’s motion.

On consideration of this appeal by the wife therefrom, we hold the court was in error in denying said motion. The plaintiff wife had a clear legal right to the relief sought, as mandated by the cited statute. The order appealed from is reversed, and the cause is remanded for further proceedings.

      . § 56.29, Fla.Stat. (1977), provides that upon such a showing, on motion of the plaintiff, the court shall so require of the defendant in execution, at a time and place to be specified by the order, with provision for service of the order (as for a summons or by service on defendant or his attorney as provided for service of a pleading) a reasonable time before the date of examination; with further provisions relating to said examination.


text:
    Emory MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-546.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Emory Miller, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, 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 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.


text:
    Piedad Alvarez RODRIGUEZ, Petitioner, v. Jack SANDSTROM, Director, Dade County Department of Corrections and Rehabilitation, Respondent.
    No. 80-621.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Robert L. Moore, Miami, and Edward N. Moore, for petitioner.
    Janet Reno, State’s Atty. and Kurt Mar-mar, Asst. State’s Atty., for respondent.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   HUBBART, Judge.

This is an original petition for a writ of habeas corpus brought by a witness who is presently restrained of her liberty in a county jail as a material witness in a first degree murder investigation. We have jurisdiction to entertain this petition. Art. V, § 4(b)(3); Ch. 79, Fla.Stat. (1979).

The central question presented for review is whether a circuit court has the inherent or statutory authority to hold a necessary and material witness in jail [in lieu of bail] to assure the witness’ appearance pursuant to subpoena in a state attorney investigation under Section 27.04, Florida Statutes (1979), where no charges are pending before the circuit court against any person in the cause. We hold that the circuit court lacks such authority and grant the petition for a writ of habeas corpus.

A

On March 20, 1980, the petitioner [Piedad Alvarez Rodriguez] filed an original sworn petition for a writ of habeas corpus before this court. The petitioner swore that she was restrained of her liberty at the Women’s Detention Center located in Miami, Dade County, Florida, in the custody of the respondent [Jack Sandstrom] as Director of the Dade County Department of Corrections and Rehabilitation, that on March 9, 1980, she was arrested as a material witness for homicide on a material witness bond previously set by the Dade County Circuit Court in the amount of $750,000, that she has moved the circuit court for a reduction of such bail, which motion was denied, that she has notified the state attorney that she intends to assert her privilege against self-incrimination when called as a witness in the cause, that the state attorney has refused to take her testimony until she sets forth through counsel a summary of her proposed testimony, that she refuses to comply with the state attorney's request and is presently in the custody of the respondent in lieu of the bail which she is unable to raise. We immediately determined that this petition set forth a prima facie case for habeas corpus relief and commanded the respondent to show cause why the relief requested should not be granted.

On March 24, 1980, the respondent Jack Sandstrom filed a response which does not deny any of the above sworn allegations of the petition but contends that the bond set in this case is a reasonable one. Upon oral argument held in this cause on March 24, 1980, it was made to appear without dispute that no charges of first degree murder or any other criminal charge has been filed against anyone before the circuit court in this cause. The state attorney is merely investigating an alleged first degree murder and seeks to subpoena the petitioner as a possible witness in the case pursuant to Section 27.04, Florida Statutes (1979). At the conclusion of the oral argument, we granted the petition for writ of habeas corpus and discharged the petitioner forthwith. This opinion sets forth our reasons for reaching this result.

B

The law is well-settled that a circuit court has the inherent authority to hold a necessary and material witness in jail in a first degree murder case which is presently pending before it. State ex rel. Gebhardt v. Buchanan, 175 So.2d 803 (Fla. 3d DCA 1965). The circuit court also has the statutory authority to accomplish this result and may set bail to guarantee the witness’ appearance before the court. §§ 902.15, 902.-17, Fla.Stat. (1979). Central to the exercise of the circuit court’s authority in such case, however, is that a first degree murder charge must be pending before the circuit court at the time such material witness is committed to custody in lieu of bail. Our review of the Georgia cases upon which this court relied in the Gebhardt case convinces us that first degree murder charges must be pending before the court as a pre-condition to the court’s authority to commit a witness to custody in lieu of bail as a material and necessary witness in the cause. Lowe v. Taylor, 180 Ga. 654, 180 S.E. 223 (1935); Crosby v. Potts, 8 Ga.App. 463, 69 S.E. 582 (1910).

C

In the instant case, it is undisputed that a first degree murder charge is not pending before the circuit court in this cause. As such, it is our view that, under the established law of this state, the circuit court had no authority to commit the petitioner to custody in lieu of bail as a necessary and material witness. We reject the state’s contention that the circuit court has inherent authority to guarantee the appearance of a witness by a material witness bond in a state attorney investigation under Section 27.04, Florida Statutes (1979), into a possible first degree murder. We are unable to discover any authority in this state or elsewhere to sustain such a position and have been cited to none by the state.

The petition for writ of habeas corpus is granted and the defendant is discharged from the custody of the respondent.


text:
    Nuria Elvira IZQUIERDO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-632.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Richard B. Marx, Miami, for appellant. Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, 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 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. See: Yanks v. State, 273 So.2d 401 (Fla. 3d DCA 1973); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977); Brill v. State, 350 So.2d 1141 (Fla. 1st DCA 1977).


author: DOWNEY, Chief Judge.

text:
    John Delper TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 78-2572.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied May 14, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Jon May, 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.
   DOWNEY, Chief Judge.

On May 17, 1978, appellant was arrested for aggravated battery. On June 6, 1978, the state filed an information against appellant, charging him with two counts of aggravated battery. On November 17, 1978, he made an oral motion for discharge pursuant to Florida Rule of Criminal Procedure 3.191. After the trial court denied that oral motion appellant pleaded nolo con-tendere and reserved the right to question the denial of said motion on appeal. The trial court entered: (1) a judgment of guilty on both counts and (2) a concurrent eight year sentence on each count. This appeal followed.

It appears that the 180th day for bringing appellant to trial fell on Thanksgiving Day, November 23, 1978. That day is a “legal holiday” according to Section 683.01, Florida Statutes (1977). Appellant was not brought to trial the next day, Friday, November 24th, 1978, because the chief judge of the Seventeenth Circuit had theretofore entered an administrative order declaring November 24,1978, among other days, to be an “official holiday.” On Monday, November 27th, appellant moved for discharge, contending 184 days had expired since his arrest and though the last day of the 180 day period fell on Thanksgiving Day, a “legal holiday,” the following day was not a legal holiday and appellant’s trial should have commenced that day.

In pertinent part Florida Rule of Criminal Procedure 3.040 provides that in computing any period of time prescribed by the Florida rules of criminal procedure the day of the event from which the designated period of time begins to . run is not to be included. The last day of the period shall be counted, unless it is a Saturday, Sunday, or legal holiday, in which event the period extends to the following day, if it is neither a Saturday, Sunday, nor legal holiday.

Section 683.01, Florida Statutes (1977), lists eighteen specific days as legal holidays, among which is “Thanksgiving Day, the fourth Thursday in November.” The following day is not among the days designated as a legal holiday. Although it has since been repealed, at the time pertinent in this case chapter 683 also contained a section defining “paid holidays observed by state agencies.” Among the designated days was “Thanksgiving Day” and Friday after Thanksgiving.” Also throughout Chapter 683 other specific days are mentioned for special observance. Some of the days designated for special observance are legal holidays and some áre not. Resort must be had to Section 683.01 to determine which are legal holidays.

Since the Rules of Criminal Procedure do not define legal holidays, it is our. view that the term “legal holiday” as used in Rule 3.040, supra, refers to the legal holidays specified in Chapter 683 of the Florida Statutes. State v. Jones, 332 So.2d 699 (Fla. 1st DCA 1976). We thus conclude that Friday, November 24, 1978, was the 180th day for bringing appellant to trial. To rule otherwise would be tantamount to holding that the speedy trial rule can be extended simply by an administrative order of the chief judge of a circuit declaring certain days as “official holidays.”

Not exactly on point, but somewhat analogous, is the case of Farrell v. Bendix Corporation, 232 So.2d 419 (Fla. 4th DCA 1970), in which this court construed the then existing appellate rule designating legal holidays. Appellant had filed his notice of appeal on Monday, December 29th. The thirtieth day for taking an appeal fell on Friday, December 26th, which date had been declared a holiday for Federal employees by the President of the United States. The County Commission of Brevard County had also declared it a holiday. Appellant thus contended he had until Monday, December 29th to file his notice of appeal. This court rejected that contention and held that, since the appellate rules designated what days were legal holidays for appellate purposes, they controlled. Other holidays declared or designated by other authorities were not non-juridical days tolling prescribed time periods for performing required acts.

In view of the foregoing, we are compelled to hold that appellant was not brought to trial within the time provided by Florida Rule of Criminal Procedure 3.191, and thus he was entitled to be discharged.

Accordingly, the judgment and sentences appealed from are reversed and the cause is remanded to the trial court with directions to discharge appellant.

REVERSED AND REMANDED with directions.

ANSTEAD and MOORE, JJ., concur.

      . Chapter 79-190, Section 42 (Laws of 1979).


author: GLICKSTEIN, Judge.

text:
    Keith Colder CHAUNCEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-952.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied May 14, 1980.
    Philip G. Butler, Jr., of Foley, Colton & Butler, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with possession of cocaine. Following denial of his motion to suppress, he pled no contest, reserving the right to appeal the trial court’s ruling. Adjudication was withheld and appellant placed on probation for three years. Appellant contends that seizure of the cocaine from his shirt, pocket was illegal because the frisk was not authorized by Section 901.151(5), Florida Statutes (1977). We agree and reverse.

Police Officer Richard Vaughn of the Town of Palm Beach was on routine patrol shortly after 1:00 a. m. on December 15, 1978. While he was stopped at an intersection, an automobile passed him with the dome light on and the three occupants huddled together as if searching for something. When the occupants saw the police car, they straightened up and turned off the dome light. Vaughn followed the automobile and after observing one of the tail lights not functioning pulled the automobile over. After getting permission of the driver, Mr. Gillespie, to search the automobile, Vaughn called for a backup unit and asked the occupants to get out of the automobile. Keith Chauncey, appellant herein, got out of the automobile on the passenger side of the front seat. Within seconds, the backup officer, Robert C. Anderson, arrived at the scene. Immediately upon his arrival, Officer Anderson asked Officer Vaughn if he had patted anybody down. When Officer Vaughn said he had not, Officer Anderson began patting down the occupants, while the other officer began to search the vehicle. In patting down appellant, Officer Anderson felt an object about three inches long in appellant’s shirt pocket, seized it and found it to be a glass tube about one-sixteenth (Vi6") of an inch in diameter. Turning his flashlight on the tube, the officer saw a white powdery substance which he determined to be cocaine. He then placed appellant under arrest. Officer Vaughn testified at the motion to suppress that he had no reason to believe the driver or the passengers were armed.

This case is governed by our decision in Schnick v. State, 362 So.2d 423, 425 (Fla. 4th DCA 1978), wherein we held:

Section 901.151(5), Florida Statutes (1975) sets out entirely separate and distinct requirements which must be met before a person may be searched. The right to search does not automatically follow once the right to detain is established. State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976). Temporary detention, unlike arrest, does not itself authorize a search “incident to detention.” It is true in some instances that the same circumstances justifying the detention also establish probable cause to believe that a weapon is involved and hence justify a search. Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976). But the search must be based on probable cause to believe that the detainee is armed with a dangerous weapon.

The record affirmatively shows that Officer Vaughn had no reason to believe appellant was armed, and the only reason Officer Anderson conducted the pat-down was because the other officer had not. Accordingly, the judgment and sentence must be reversed with directions that the order denying the motion to suppress be vacated and any further proceedings be in accordance with the terms of this opinion.

REVERSED and REMANDED.

DOWNEY, C. J., and BERANEK, J., concur.