text:
    Coleman P. HOUCHINS, Jr., Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Appellee.
    No. 80-390.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.

      Philip Auerbach, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Arthur M. Simon, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1977, Houchins’ legs were severed when he was struck by a train operated by the Florida East Coast Railway Company (FEC). Houchins sued FEC in Broward County where the accident occurred. After his suit was dismissed, Houchins, with leave of court, filed an amended complaint. No further pleadings were filed until Houchins voluntarily dismissed his suit in Broward and filed his action in Dade County. It is undisputed that Houchins was entitled to voluntarily dismiss his Broward action and that venue was proper in either Broward or Dade County.

The railroad moved to change the venue back to Broward. Its argument in support of the change was (1) a trial in Dade would result in substantial inconvenience and undue expense to the parties and witnesses; (2) the incident occurred in Broward and “the circumstances and physical surroundings regarding the alleged incident would best be known to a jury composed of Bro-ward County residents”; (3) a jury view of the scene of the accident would be required; (4) the primary issue in the case was that of liability, not damages, and, therefore, Houchins’ claimed need to call approximately fifty medical witnesses located in Dade was exaggerated; (5) Houchins made no showing that he would be prejudiced by having the case tried in Broward; and (6) the action was originally brought in Bro-ward, and it is apparent that Houchins, displeased with the ruling of the Broward court dismissing his initial complaint, was “forum shopping.”

The trial court granted the railroad’s motion. Its findings were:

“1. That for the convenience of the parties, witnesses, and, in the interests of justice, and with the acts, conduct, cause of action, and location of the accident sued upon being in Broward County, this litigation should be sent back to the venue in which it was first filed, i. e., Bro-ward County.
“2. The Plaintiff’s original action was brought in Broward County, and based upon Defendant’s Motion to Dismiss, Plaintiff’s Complaint was thereafter dismissed, without prejudice to file an Amended Complaint in the Broward County Circuit Court; the Plaintiff thereafter filed an Amended Complaint in the Broward County Circuit Court on December 1,1979, and immediately thereafter, filed a Notice of Voluntary dismissal in the Broward County Circuit Court on December 5, 1979, thereby selecting another forum away from the place of the alleged tort sued upon and where this Court finds there would be inconvenience and expense to the parties and witnesses and where the interests of justice would not be served.
“3. This Court’s broad discretionary powers have now been properly invoked to prevent an abuse, by the Plaintiff, of the Venue Statutes, and by sending the case back to the Court in which it was originally filed, this Court has hereby afforded an appropriate safeguard against forum-shopping or some other attempted promiscuous use of the venue laws.
“4. This Court finds that Section 47.122 of the Florida Statutes, justifies and requires that this case be transferred to Broward County because to do otherwise would result in substantial inconvenience and undue expenses to the litigants and the witnesses and, further, would allow Plaintiff to forum-shop in a manner contrary to the intent of the venue statutes and Florida case law pertaining to those statutes.”

It is abundantly clear from the record that any claim by the railroad that the convenience of the parties or witnesses would be served by a transfer to Broward County is sadly deficient. Houchins had been treated at the Veteran’s Administration Hospital in Miami, Dade County, since shortly after the accident. He underwent extensive medical and psychological treatment and rehabilitative training in Dade County during the course of which nearly fifty physicians, psychologists, specialty care nurses, consultants, physical therapists and other health care personnel were involved. As of January 1980, Houchins was to reside full time in the Veteran’s Administration Hospital in Dade County to undergo additional amputations on his legs, which surgery and treatment would involve five more Dade County surgeons and physicians. The train’s engineer was a Dade County resident; Houchins’ friend and brother, both residents of Dade County, were the two persons best able to testify to his condition before and after the accident. Indeed, the only Broward County witnesses were seven police officers who came to the scene after the accident occurred. The burden of FEC, as the party seeking the change of venue, to show that substantial inconvenience or undue expense to the parties would result from a trial in Dade County, the forum chosen by Houchins, was simply not satisfied. See Ashland Oil, Inc. v. Florida Department of Transportation, 352 So.2d 567 (Fla. 2d DCA 1977); Velez v. Mell D. Leonard & Associates, Inc., 338 So.2d 896 (Fla. 2d DCA 1977). The trial court’s contrary finding is unsupported by the record.

The fact that the incident occurred in Broward County makes venue proper there, but does not make Dade a forum non conveniens. When venue is proper in more than one county, as is the case here, the choice of where to file suit rests with the plaintiff. Mann v. Goodyear Tire & Rubber Company, 300 So.2d 666 (Fla.1974); Velez v. Mell D. Leonard & Associates, Inc., supra; Warren Brothers Company v. Joslin, 338 So.2d 855 (Fla. 3d DCA 1976). See also Jones v. Denmark, 259 So.2d 198 (Fla. 3d DCA 1972). FEC argues, however, that it is not merely that the incident occurred in Broward that dictates a change to that county, but that the incident is such that the case can be best decided by a jury composed of Broward County residents with special knowledge of the physical surroundings where the accident occurred. This argument not only does not satisfy the railroad’s burden to show that it would be substantially inconvenienced by a trial in Dade, but, moreover, to accept the argument would be to sanction the railroad’s entitlement to a jury’s knowledge of the facts outside of the record in the case. While a juror is not required to disabuse his mind of knowledge about the place where the accident occurred, he is not permitted to become a witness in the jury room by imparting such knowledge to other jurors. Edelstein v. Roskin, 356 So.2d 38 (Fla. 3d DCA 1978). See also Ace Cab Company v. Garcia, 140 So.2d 338 (Fla. 3d DCA 1962) (misconduct for a juror without court permission to view the place where the accident occurred); 4 Wigmore, Evidence § 1166 (Chadbourn Rev. 1972) (a view not had under the direction of the court is improper because of the danger that the jury will view the wrong objects, and because of the difficulty of ascertaining that the jury has viewed the right objects). Thus, while a juror is not necessarily disqualified from serving if fortuitously familiar with the scene of the accident, a party is clearly not entitled to a jury composed of persons with such specialized knowledge.

Assuming, arguendo, that a view by the jury of the scene of the accident will ultimately be required, that fact alone cannot justify a transfer to Broward County. Were the law otherwise, then all cases in which a view is appropriate would, ipso facto, be transferable to the county where the cause of action accrued, thus defeating the statutory right of a plaintiff to choose a forum other than where the cause of action accrued.

To avoid the impact of the substantial inconvenience to Houchins arising from the fact that all (some fifty to sixty) witnesses on the damage issue are located in Dade County, FEC categorizes the damage issue as secondary and suggests that the real battle will be fought on the issue of liability. That may prove to be the case, but the railroad has not conceded Houchins’ entitlement to the damages he seeks, and Houch-ins is still called upon to prove his damages through these Dade County witnesses.

The railroad’s further contention that Houchins made no showing that he would be prejudiced by having the case tried in Broward County simply misconceives the law respecting the burden placed upon the party moving for transfer. It was not Houchins’ burden to show that a trial in Broward County would work a prejudice to him. It was the railroad’s burden to show that a trial in Dade would work a substantial inconvenience to it. Ashland Oil, Inc. v. Florida Department of Transportation, supra; Velez v. Mell D. Leonard & Associates, Inc., supra; Warren Brothers Company v. Joslin, supra.

Lastly we address the railroad’s argument, apparently convincing to the trial court, that considerations of substantial inconvenience aside, Houchins’ lawsuit should be relegated to Broward County, where he originally sued, since to do otherwise would be to encourage “forum shopping.” We reject this argument as well. Houchins’ right to choose a forum is accorded to him by statute. As we have said, the mere fact that he chose Broward first posed no barrier to a timely voluntary dismissal and refiling in Dade.

If a defendant seeks to be relieved from the plaintiff’s choice of forum, his exclusive remedy lies in demonstrating his entitlement to transfer under Chapter 47, Florida Statutes. Sage v. Travelers Indemnity Company of Hartford, 239 So.2d 831 (Fla. 4th DCA 1970). If a defendant, as here, fails in that showing, the plaintiff’s choice of forum controls. A court cannot give the defendant greater rights than the legislature has seen fit to grant in this statutory scheme by pejoratively describing the plaintiff’s exercise of his statutory right to choose a forum as “forum shopping.” The use of the phrase “forum shopping” is simply inappropriate in the context of the venue statutes.

Accordingly, we reverse the order of the trial court transferring the case to Broward County.

Reversed.

      . Fla.R.Civ.P. 1.420(a)(l)(i); Fears v. Lunsford, 314 So.2d 578 (Fla.1975).

      . Section 47.051, Florida Statutes (1979), states:
      “Actions against domestic corporations shall be brought only in the county where such corporation has or usually keeps an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” (emphasis supplied).
      The FEC maintains a business office in Dade County; the cause of action accrued in Bro-ward County.

      . The crewman on the train resided in Duval County. A trial in Broward County would be no more convenient for him than a trial in Dade.

      . The need for a view could arguably be considered a factor in assessing expense. In the present case, any additional expense is de mini-mus in comparison to the inconvenience which would inure to Houchins were the case to be tried in Broward County. The difference between busing the jury from the courthouse in Broward or from the courthouse in Dade to the site to be viewed is insignificant.

      . The fact that a plaintiff originally filed suit in one venue could under certain circumstances be considered as evidence of his preference or a concession that that venue was a substantially more convenient forum. See Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958) (in which all other evidence pointed to the fact that the original forum chosen by the plaintiff was the substantially more convenient forum for both parties). Compare Hayes v. Chesapeake & Ohio Railway Co., 374 F.Supp. 1068 (S.D.Ohio 1973). But the law is clear that a plaintiff is not bound by his choice of forum. See, e. g., Philip Carey Manufacturing Co. v. Taylor, 286 F.2d 782 (6th Cir. 1961) (recognizing and applying the accepted rule that even after a plaintiff has chosen a forum, he may move to transfer the cause to a more convenient forum).

      . It is difficult to accept the railroad’s suggestion that the plaintiff abandoned his Broward County suit over displeasure at the trial court’s granting a motion to dismiss with leave to amend, a rather innocuous ruling.

      . We do not overlook that under Section 47.-122, Florida Statutes (1979), a court may transfer a case in “the interests of justice.” But “interests of justice” is merely an alternative ground for transfer under established principles of law, not a panacea for ailing motions or the erroneously perceived injustice of “forum shopping.” See, e. g. Carborundum Corporation, Pollution Control Division v. Bay Fabricators, Inc., 461 F.Supp. 437 (D.Tenn.1978) (transfer to a forum where the defendant could compel the attendance of live witnesses to offset an otherwise unfair advantage to the plaintiff); Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523 (5th Cir. 1978) (transfer to forum where action not limitations barred); Vaughn v. American Basketball Association, 419 F.Supp. 1274 (S.D.N.Y.1976) (transfer to forum where law of state within the federal district would require interpretation); Smithline Corp. v. Sterling Drug, Inc., 406 F.Supp. 52 (D.Del. 1975); and Continental Grain Co. v. Barge FBL-585, 364 U.S. 14, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960) (transfers to forum in which related case involving identical issue pending). But see Ashland Oil, Inc. v. Florida Department of Transportation, supra (holding that the convenience of the court is not a ground for transfer).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Dorothy Sherri BROOKS and Angie Phiffer, Appellees.
    No. 80-698.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.

      Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, Kirk W. Munroe, Miami, for appel-lees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial judge dismissed a grand jury indictment as against the present appellees on the ground that the evidence presented at a bond hearing demonstrated that “[tjhere was no probable cause to support [their] arrest.” As one of the defendants has forthrightly conceded by confessing error in this court, this order was entirely erroneous. Except for appropriately ruling on a sworn motion to dismiss under Fla.R. Crim.P. 3.190(c)(4), which was not filed in this case, a trial court may not dismiss a duly returned indictment or information on the basis of a finding that the evidence is insufficient to support it. State v. Schroeder, 112 So.2d 257, 261 (Fla. 1959); State v. Umbrecht, 371 So.2d 1109 (Fla. 4th DCA 1979); State v. Antel, 333 So.2d 76 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 323 (Fla. 1977). Accordingly, the order under review is reversed and the cause remanded with directions to reinstate the indictment.

Reversed and remanded.


author: NESBITT, Judge.

text:
    DADE COUNTY, Appellant, v. Mark GAYER and Arlene Gayer, his wife, Appellees.
    No. 80-751.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Rehearing Denied Nov. 4, 1980.

      Robert A. Ginsburg, County Atty., and Robert L. Krawcheck, Asst. County Atty., for appellant.
    Guy Spiegelman, Miami Beach, for appel-lees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

By petition for common law certiorari, Dade County seeks to quash an order entered by the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit, which had entertained the Gayers’ petition for common law certiorari and quashed a resolution adopted by the Board of County Commissioners, which unanimously denied the Gayers a non-use variance of zoning regulations, set-back requirements, and subdivision regulations.

Since the final judgment, entered by the trial court on review of the administrative action, has not otherwise been made directly appealable to the Supreme Court, it is, under plain construction of Article V, Section 4(b)(1) of the Florida Constitution, reviewable here by way of appeal. Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979). Consequently, we treat the instant application for certiorari as a plenary appeal.

The Gayers commenced construction of a coral rock wall surrounding their residence. They had neglected to secure a building permit from the Dade County Building and Zoning Department for this project. After a complaint was lodged against the unauthorized construction, they applied to the Building and Zoning Department for a building permit. The application was for a permit to build a wall containing a set-back of ten feet inside the property line. The sketch submitted by the Gayers was confirmatory of their request. The permit was issued in March, 1978, following which the Gayers resumed construction of their wall, which was ultimately erected into the public right-of-way. Construction was again halted in July of 1978 when the Gayers were cited for violations consisting of constructing a wall into the publicly owned right-of-way and not in accordance with the building permit.

The Gayers then applied to the Zoning Appeals Board for a “non-use variance of zoning regulations, set-back requirements and variance of subdivision regulations with requirements that no structures shall be permitted in a mapped street ....” The Zoning Appeals Board approved the application for this variance but recognized that some safety hazards were presented and recommended that either a flashing light be put up or that some other safety measures be taken to maintain safety in the area. At the hearing before the Zoning Appeals Board, the Gayers admitted to being advised of the set-back requirements and stated that they thought the ten-foot setback requirement simply meant ten feet from the pavement.

The approval of the application for the variance was then appealed to the Board of County Commissioners who, by resolution, rejected the recommendation of the Zoning Appeals Board, denied the application for the variance, and ordered that the coral rock wall be removed.

The Gayers then filed a petition for common law certiorari which was heard by the Appellate Division of the Circuit Court. The Circuit Court, in turn, vacated and set aside the resolution of the Board of County Commissioners upon finding that a permit had been “issued in error” and the Gayers had acted in reliance thereon at their considerable expense and that the county was therefore estopped from ordering the removal of the wall.

Dade County now brings this petition for writ of certiorari seeking to quash the Circuit Court’s “Order of Reversal.” As stated, the Circuit Court’s order was premised on a finding that the permit had been “issued in error.” Exactly what the “error” was, if any, is somewhat confusing. The planning director initially testified that the permit had been issued in error but later corrected his statement by indicating that it had not been so issued. Perhaps the “error” arose from the finding of the Zoning Appeals Board that both parties knew where the wall was to be constructed and that construction ensued for four months from the issuance of the permit until the citation for the violations. In light of the favorable finding on behalf of the Gayers before the Zoning Appeals Board, this matter is not of critical importance. We do, however, point out that neither this court nor the Appellate Division of the Circuit Court is permitted to re-weigh conflicting evidence and is primarily relegated to assaying the record to determine whether the applicable law was applied in accordance with established procedure. Metropolitan Dade County v. Mingo, 339 So.2d 302 (Pla. 3d DCA 1976).

The county contends that estoppel is not applicable to sanction acts which are prohibited by law. To indicate that the building of the wall in its present location is such a prohibited act, the county relies upon Section 28-18 of the Code of Metropolitan Dade County which provides:

No building or any other type of structure shall be permitted on, or in, a mapped street, except required and approved underground installations.

For the proposition that estoppel will not lie for prohibited acts, the county cites Dade County v. Bengis Associates, Inc., 257 So.2d 291, 292 (Fla. 3d DCA), cert. denied, 261 So.2d 839 (Fla.1972), where this court held:

The state, or its political subdivision is not ordinarily estopped by the unauthorized acts of its officers. Greenhut Construction Company v. Henry A. Knott, Inc., [247 So.2d 517 (Fla. 1st DCA 1971)].

The rule has also been applied by this court in City of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 533 (Fla.1969), where it was held that the city was not estopped to revoke a building permit for a “roof sign,” which was in violation of a city ordinance.

The Circuit Court, in its order, and the Gayers, in this appeal, rely upon the case of Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla.1976) as support for estopping the county from requiring removal of the wall. On close examination, however, that case buttresses the position which the county asserts. In Hollywood Beach Hotel Company v. City of Hollywood, supra, at 15 our Supreme Court held that “[t]he doctrine of equitable estop-pel may be invoked against a municipality as if it were an individual ....” Prior to that decision, our Supreme Court recognized, in Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 163, 95 So. 666, 668 (1923), that: “[t]he doctrines of estoppel and waiver do not in general apply in transactions that are forbidden by statute or that are contrary to public policy.” Accord, Sherba Bros., Inc. v. Campbell, 361 So.2d 814 (Fla. 4th DCA 1978); State ex rel. Schwartz v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963). Hollywood Beach Hotel Company allows one to invoke the doctrine of estoppel against a municipality in the same manner as it applies to private parties. In Montsdoca, it was held estoppel could not be asserted against private parties for acts prohibited by law.

While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure.

Hollywood Beach Hotel Company v. City of Hollywood, supra, and Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963), cited therein, relied upon by the Circuit Court in its order, did not involve estoppel for some act unauthorized or prohibited by law. Those cases, along with Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975), are classic examples of an act that was legal when the government sanctioned it (by issuing a permit), but purportedly became illegal by virtue of a change in the political climate or by the governmental sanction later being withdrawn after a permittee had relied upon it to his financial detriment.

For the foregoing reasons, we find that the Appellate Division of the Circuit Court failed to apply the correct principle of law in resolving the doctrine of equitable estop-pel which was presented to it.

Our disposition of the matter makes it unnecessary to consider the question of whether equitable estoppel could be invoked, where to do so would create a hazard or a public nuisance, or result in the annexation of public lands. We also do not address the question of whether there was a wrongful act committed by the Gayers which would prevent them from relying upon the doctrine of equitable estoppel.

The order of the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit, quashing Resolution Z-184-79, Board of County Commissioners of Dade County, is reversed.


author: ORFINGER, Judge.

text:
    John Willie TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 79-485.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Christopher S. Quarles, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from an order, judgment of conviction and sentence entered by the Circuit Court of Volusia County, Florida. The Public Defender has filed an An-ders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On February 21, 1980 this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the briefs and the record herein and no appealable issue appears.

We have no jurisdiction herein because the record reflects that appellant entered a plea of guilty to one count of grand larceny and was sentenced to imprisonment for three years. A defendant may not appeal from a judgment of conviction entered upon a plea of guilty, Rule 9.140(b), Florida Rules of Appellate Procedure, except as to issues which occur contemporaneously with the entry of the plea. Robinson v. State, 373 So.2d 898 (Fla.1979); Lawrence v. State, 385 So.2d 167 (Fla.5th DCA 1980). There has been no motion in the trial court for leave to withdraw the plea. Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979). A dismissal of this appeal is without prejudice to appellant seeking collateral relief as may be appropriate.

The motion of the Public Defender to withdraw is hereby granted, and the appeal is hereby dismissed.

APPEAL DISMISSED.

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

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


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    STATE of Florida, Appellant, v. Larry D. BOGARD, Appellee.
    No. 78-2294.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Marsha G. Madorsky and Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially:

The State appeals the trial court’s .order suppressing evidence seized pursuant to a search warrant. The court held the affidavit underlying the issuance of the warrant was improper on the basis that it contained factual misstatements relating to the reliability of a “confidential informant.”

The issuance of the search warrant was predicated upon the affidavit of a detective from the Hollywood Police Department which indicated he believed marijuana was located in a certain warehouse for the following reasons:

On February 3, 1978, at approximately 1:30 p. m., a Confidential Informant, hereinafter referred to as Cl 624, accompanied by an unidentified white male, entered the warehouse described above, for the purpose of purchasing Marijuana. Upon gaining entry into the warehouse Cl 624 advised the Affiant that two unidentified while males were placing a number of compressed bales of marijuana on the floor of the warehouse for the Cl to inspect. The Cl advised the Affiant that numerous other similar bales of marijuana were observed in the rear of a blue and tan utility type truck believed to be of a Ford make. The Cl 624 and the unidentified while male who had accompanied the Cl agreed to take possession of approximately two hundred pounds of marijuana, and arrangements were made to transport same to Connecticut. The Cl and the unidentified white male then left the area. It should be noted that Cl 624 has on occasion provided this affiant and other law enforcement agencies with information that has been found to be reliable.

The “confidential informant” to whom the detective referred in the affidavit was a drug suspect who had been arrested earlier that day for conspiracy. The arrest had culminated two days of surveillance by the detective and other law enforcement officers of the suspect’s motel room. The detective had overheard the suspect admitting he had purchased ninety-eight pounds of marijuana at a warehouse containing approximately 2,000 pounds of the contraband. Following his arrest, this same individual repeated the details of the drug purchase, pointed out the warehouse where the transaction took place, and in the officer’s presence telephoned the party to whom the marijuana had been shipped, confirming its arrival.

The trial court issued the search warrant on the basis of the detective’s representations. The search was executed, resulting in Bogard’s arrest. Bogard was charged with possession of more than one hundred pounds of marijuana and paraphernalia. Appellee subsequently moved to suppress the evidence and the trial court granted the motion stating, “the affidavit gives the impression to the issuing magistrate that they have used this fellow in the past on other matters . . . which is not true.”

Appellee argues that the affidavit was misleading; that the description of “Cl 624” as a “confidential informant” was a deliberate falsehood; and that the misrepresentations vitiated the search warrant. Appellant relies upon the admonition of United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

[Affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

The affidavit in this instance contained assertions relating to' the reliability of a purported confidential informant. The trial court found that these assertions were erroneous and false. A search warrant may be found invalid if the statements contained in an affidavit upon which the warrant was based are found to be erroneous. Allegations of negligence or innocent mistake, however, are insufficient. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Jacobs, 320 So.2d 45 (Fla.2d DCA 1975). In Franks, the following rule was established:

[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. [Emphasis supplied]. 438 U.S. at 155-56, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672.

Appellee has plainly established that the detective’s description of “Cl 624” throughout the affidavit as a confidential informant was a false statement. In Gordon v. United States, 438 F.2d 858, 875 (5th Cir. 1971), cert. denied 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971), the term “informer” was defined as:

[A]n undisclosed person who confidentially volunteers material information of violations of the law to officers charged with enforcement of that law. As we understand the term, persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not informers. [Footnotes omitted].

See also United States v. Oliver, 570 F.2d 397 (1st Cir. 1978).

The purported “informant” had not “confidentially volunteered material information of violations of the law.” Instead, he had been overheard describing a violation of the law while under surveillance, and had later repeated that information following his arrest. There had been no other occasions known to the affiant in which information had been furnished by “Cl 624.”

I conclude that the quoted portion of the affidavit was the result of substantially more than negligence or innocent mistake, that the trial judge who issued the warrant was misled by the affidavit, and that when the false assertions are stricken, the remaining content of the affidavit is insufficient to establish probable cause. The trial court was therefore correct in quashing the search warrant and suppressing the evidence.


author: LARRY G. SMITH, Judge.

text:
    WOLF RIDGE PLASTICS, INC., a corporation, and E.T.A. Incorporated, a corporation, Appellants, v. JACKSONVILLE ELECTRIC AUTHORITY, a body politic and corporate, and Roger J. Au & Son, Inc., a corporation, Appellees.
    No. OO-25.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.

      A. August Quesada, Jr., and Frederick R. Brock of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellants.
    Charles T. Boyd, Jr. of Boyd, Jenerette, Leemis & Staas and Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

Wolf Ridge Plastics, Inc. (Wolf Ridge) and ETA Incorporated (ETA) seek reversal of a summary final judgment denying all relief in their suit for injunction against appellees, Jacksonville Electric Authority (JEA) and Roger- J. Au & Son, Inc. (Au). Appellants argue that there were genuine issues of material fact precluding denial of an injunction, and that the trial court erred, after finding all issues in the injunction suit to be moot, in denying appellants’ motion to file an amended complaint for damages. We conclude from examination of the record and the authorities presented that no reversible error has been made to appear, and we therefore affirm.

Appellee Au was awarded the contract for construction of a thermal discharge unit for JEA at JEA’s Northside Generating Station. See Wood—Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla.lst DCA 1978). In connection with the bidding for the job, Au was required to and did specify appellant-Wolf Ridge as the supplier for a large diameter (16 foot) pipe to be used for the discharge of heated water. Appellant-ETA is a commissioned sales agent for Wolf Ridge. Prior to actual award of the contract by JEA to Au, Wolf Ridge sold all of its assets, business and goodwill to Armco Steel Corporation. Shortly after JEA entered into its contract with Au, Au requested and JEA authorized the use of pipe manufactured by another pipe supplier, CAE Fiberglass Products, Ltd.

Wolf Ridge and ETA filed suit for injunction, seeking to prohibit JEA and Au from using any large diameter pipe not manufactured by Wolf Ridge. The trial court entered summary final judgment in favor of JEA and Au, based upon findings of fact, not controverted, that the 16 foot diameter pipeline in question, manufactured by CAE Fiberglass Products, Ltd., had at the time of the hearing already been fully fabricated, delivered, laid in a trench under the St. Johns River for a distance of 3,000 feet in accordance with the plans and specifications of the contract, all segments had been locked together, anchored with two heavy concrete pillars on each 50 foot segment of pipe, and back fill had been placed over the entire pipe. The court further determined that neither of the appellants had any contract with either JEA or Au at any time. Thus, concluding that at the time of the hearing it was impossible to prevent or enjoin what had already occurred, the trial judge ruled that the complaint for injunction was moot. Upon announcement of the trial court’s ruling, appellants requested leave to amend the complaint to reflect an action for damages, which motion was denied.

Appellants contend that Wolf Ridge, as the prequalified pipe supplier utilized by Au in submitting its successful bid, has a vested right to manufacture and supply the large diameter pipe used on the job; and, relying upon Robert G. Lassiter and Co. v. Taylor, 99 Fla. 819, 128 So. 14 (1930), they contend that at the time of entry of the summary judgment relief by injunction to prohibit completion of the contract between JEA and Au was not precluded, because the sum of $946,504.00 of the contract price remained in the possession of JEA, undistributed to Au; and that the job had neither been finally approved nor accepted. They further contend that there was a genuine issue of material fact whether there was an oral contract between Wolf Ridge and Au, obligating Au to designate Wolf Ridge as its pipe supplier if Au was the successful bidder, and that Dedmond v. Escambia County, 244 So.2d 758 (Fla. 1st DCA 1971), is authority for appellants’ asserted right to file an amended complaint seeking money damages.

Appellants cite no authority for the proposition that a supplier such as Wolf Ridge, designated by a contractor in its bidding documents, has a vested right to manufacture and supply materials utilized in the construction. We find no basis for appellants’ contention on this point. They were only indirectly involved in the bidding process, never became parties to the contract between JEA and Au, and, notwithstanding their reliance upon the language of this court’s opinion in Wood-Hopkins, supra, neither Wolf Ridge nor ETA were parties to that litigation, and can claim no benefit from it.

The Lassiter case was an action to restrain payment of the balance due on a public contract because of faulty construction. However, Lassiter was a taxpayers action, and neither appellants are residents or taxpayers of the State of Florida; nor do we find any authority in Lassiter which would authorize the court to order either the nonpayment or the refund of funds paid for benefits already completed and delivered under the public contract. See Robinson’s Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962). In this connection appellees point out that the total contract price was $11,650,000.00. We note from attachments to the complaint that Au, in its bid on the contract, allocated $4,850,000.00 out of the total contract price to the large diameter pipe needed on the project. The record does not disclose what portion, if any, of the $946,504.00 retainage applied to the pipe item, but it is clear that all pipe had been manufactured and delivered by the pipe supplier when the summary judgment was entered. Au further represents to the court in its brief and oral argument, without contradiction, that the project has been completed, and all funds have been disbursed.

The great weight of authority supports the action of the trial judge in denying the injunction on the grounds of mootness, since injunction ordinarily will not be ordered where it is impossible to prevent or enjoin that which has already occurred. 42 Am.Jur.2d, Injunctions, § 291, page 1089; Sunshine Villa Apartments Inc. v. Snyder, 335 So.2d 841 (Fla. 4th DCA 1976). See also City of Coral Springs v. Florida National Properties Inc., 340 So.2d 1271 (Fla. 4th DCA 1976), and Dick v. Drainage District No. 2, etc., 175 Kan. 267, 267 P.2d 494 (1954).

Dedmond v. Escambia County, supra, is distinguishable because Dedmond was a bidder, and as such was in position to insist upon compliance with the statute, Section 125.35, Florida Statutes, requiring that the award be made to the highest and best bidder. This court found that Dedmond was in the position of a successful bidder; however, in view of the fact that the county had already rebid the lease of a beach concession, albeit erroneously, Dedmond was not confined to the remedy of injunction, but was authorized to pursue the less disruptive remedy of an action for damages for breach of contract. Here, appellant Wolf Ridge is not in the position of a bidder, but only in the position of one who had agreed to become a supplier to a bidder.

Wolf Ridge had no contract with JEA. Furthermore, we find no merit in appellants’ contention that JEA was bound by the “law of the case,” found in our Wood-Hopkins decision. The principle of “law of the case” may be defined as follows: Whatever is once established, on appeal, between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case. 3 Fla.Jur.2d, Appellate Review, § 414. Since appellants were not parties to the Wood-Hopkins litigation, which was an entirely different law suit, no “law of the case” established there can be applicable to appellants.

We find no merit in appellants’ contention that JEA “was without power to reserve in the plans and specifications prepared in advance of bidding, the power to make exceptions, releases and modifications after the contract is let.” The contract itself, as advertised, makes specific provisions for changes and modifications in the work. Appellants’ reliance upon cases providing protection to bidders where changes disadvantageous to them are made, is misplaced. So also is appellants’ reliance upon cases providing protection to the public against changes which would result either in the public getting less than was bargained for, or which would so change the project as to amount to a new project without competitive bidding. The principles governing those cases are not applicable to this controversy. Appellants are not bidders in the context of the cases they rely upon. Furthermore, it cannot seriously be maintained that JEA received less than it bargained for when it accepted specially fabricated pipe meeting contract specifications, solely by reason of the fact that the pipe was manufactured by a different supplier. The change in the pipe supplier did not create a “new project” without competitive bidding. We conclude that whether JEA’s action in approving a pipe supplier other than Wolf Ridge was “arbitrary and capricious” is of no consequence in this proceeding.

Appellants insist that because of the circumstances under which the JEA contract was awarded to Au, as disclosed in our Wood-Hopkins opinion, Wolf Ridge had contract rights which were violated by the change in pipe suppliers. It is clear from the deposition of Wolf Ridge’s president that Wolf Ridge had no written contract with Au. However, the president, Mr. Kauffman, testified that he thought there were some “verbal understandings.” Language in our Wood-Hopkins opinion supports the contention that Wolf Ridge had made commitments to supply the pipe (opinion page 449):

... It is uncontradicted that the supplier in this case is bound, as indeed the supplier itself so states, to furnish pipe meeting the specifications at the cost originally submitted, regardless of additional costs to the supplier of changes required.
In the instant case, no question is raised by Appellants as to the responsibility, integrity and capability of either Au or its designated pipe supplier, Wolf Ridge. Both were pre-qualified by JEA as “responsible.” Further, counsel stipulated at the hearing to Au’s experience and qualifications.

Assuming, as we did under the state of the record existing in Wood-Hopkins, the existence of an obligation by Wolf Ridge to supply the pipe in event Au became the successful bidder we cannot agree, as appellants apparently assume, that this created a corresponding obligation on the part of Au to order the pipe from Wolf Ridge. Moreover, even if representations by Au led Wolf Ridge to believe (as the complaint in effect alleges) that Wolf Ridge would be the pipe supplier if Au was successful in its litigation with JEA and Wood-Hopkins, this would not be sufficient to hold Au irrevocably bound to Wolf Ridge regardless of changed circumstances. That there were changed circumstances is apparent. One was Wolf Ridge’s sale to Armco Steel Corporation, and another was JEA’s modification of the contract conditions by approving a different pipe supplier.

Wolf Ridge’s sale of its entire assets and business to Armco materially altered the relationship between the parties as it existed at the time of our Wood-Hopkins opinion. The significance of the sale to Armco is indicated by the unrebutted testimony of Wolf Ridge’s president. He stated that at the time Wolf Ridge filed its complaint for injunction in this case Wolf Ridge had “possibly one paid employee,” and that if Wolf Ridge had received the order to furnish the pipe on the JEA job it would have been accomplished by buying new equipment, hiring local people, and building the pipe in the Jacksonville area. The parties disagree as to the significance of the sale. For one thing, as Wolf Ridge points out, it contemplated building the pipe locally, because of transportation difficulties with that size pipe, whether or not there had been a sale of the company. However, we are convinced that after the sale to Armco, Wolf Ridge possessed no unique capabilities as a pipe supplier to supply pipe never before made by any manufacturer, that would in any way inhibit JEA in modifying its agreement with Au by approving a different pipe supplier. The contract as advertised and bid provided for changes in the work, and JEA’s decision to do so in this instance, based upon its own judgment and discretion, is not subject to modification by the courts. Moreover, it is obvious from conversation and correspondence between counsel for Wolf Ridge and Au that after the sale to Armco such a change was within the contemplation of the parties.

Finally, after the suit in this case was filed a full year elapsed before the matter was presented to the court for adjudication, at which time the entire project in controversy was complete except for a few final details, and final acceptance. We find the trial judge did not abuse his discretion in denying the eleventh-hour request for amendment to the complaint, which at that point would have changed the issues and materially varied the grounds for relief. United States v. State, 179 So.2d 890 (Fla. 3rd DCA 1965); Cox v. Seaboard Coastline Railroad Company, 360 So.2d 8 (Fla. 2nd DCA 1978).

McCORD and SHIVERS, JJ., concur.

      . We know of no theory under which Wolf Ridge could claim any part of the undisbursed funds held by JEA. Any monetary claim by Wolf Ridge against JEA or Au would have necessarily been in the nature of an action for damages for breach of contract, recoverable only after trial and judgment. We do not entertain seriously any suggestion that the trial court abused its discretion in refusing to impound these undisbursed funds and impose an injunction upon final approval of the construction project pending adjudication of Wolf Ridge’s damage claims.

      . The complaint contains no allegation of injury to the public except for vague reference to the change of pipe suppliers as constituting “a subversion of the competitive bidding requirements” established by law, and the need to “protect the public policy inherent in the statutory bidding requirements.” There is no allegation in the complaint nor elsewhere in these proceedings that the specifications for the pipe have been changed. No contention has been made at any time that the pipe manufactured and delivered for the project does not meet all specifications of the contract. Furthermore, we find no allegation of damage except that in the event of the manufacturing and supplying of the pipe by any company other than Wolf Ridge, “both Wolf Ridge and ETA will suffer irreparable harm and damage and the Jacksonville Electric Authority and Au will be unjustly enriched.”

      . Although not argued by the parties, we note that under the Uniform Commercial Code, Section 672.205, Florida Statutes, a firm offer for the sale of goods which by its terms gives assurance that it is held open is not revocable, for lack of a consideration. A contract between the parties does not result until the offer is accepted. See also U. S. Fidelity & Guaranty Company v. North American Steel Corporation, 335 So.2d 18 (Fla. 2nd DCA 1976), holding that fabricated pipe could properly be characterized as “goods” within the meaning of the Uniform Commercial Code, Section 672.105.

      . Letter from Au’s attorney to Wolf Ridge’s attorney, dated December 7, 1977:
      “This letter will confirm our telephone conversation in which you requested information as to whether Roger J. Au & Son, Inc. would be willing to endeavor to effectuate an assignment of the contract with Wolf Ridge to Armco Steel Company, or otherwise. “At the present time, in view of the status of the pleadings, we would prefer not to undertake any inquiry as to any assignment of your contract for reasons that are self-evident. Following determination of the appeal, either favorable or unfavorable, as the case may be, we would be more than happy to undertake to effectuate an assignment of the contract subject to the approval of Jacksonville Electric Authority and its consulting en-
      gineers in the event that we are successful in the appeal and are awarded the contract. I trust the foregoing will confirm to you that we would be willing to undertake to try to accomplish this within the guide lines set forth in the original bid invitation material and specifications attached thereto.”
      Letter from Wolf Ridge’s attorney to Au’s attorney dated February 3, 1978:
      “. You asked me about Wolf Ridge’s commitments to Armco concerning the Jacksonville Electric Authority job. Wolf Ridge did enter an agreement with Armco to the effect that should Au be awarded the JEA job, Wolf Ridge would use its best efforts to cause Au and the JEA to approve the assignment of its subcontract from Wolf Ridge to Armco.”


author: McCORD, Judge. WENTWORTH, Judge,

text:
    Ronald C. BASHANS, Appellant, v. STATE of Florida, Appellee.
    No. OO-70.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 6, 1980.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his jury conviction of sexual battery in violation of § 794.011, Florida Statutes. We reverse and remand for a new trial.

The indictment returned against appellant is in two counts. The first count charges sexual battery and the second solicitation for prostitution. The sexual battery count of the indictment states as follows:

RONALD C. BASHANS on the 18th day of March, 1978, in Leon County, Florida did commit sexual battery upon Corrine Lines, a person 14 years of age by oral or vaginal penetration, without her consent while she was physically helpless to resist or did use physical force and violence not likely to cause serious personal injury, contrary to § 794.011, Florida Statutes.

The jury returned a verdict on Count I which stated as follows:

“We, the jury, find the defendant, Ronald C. Bashans, guilty as charged of sexual battery.”

The jury returned a verdict of not guilty on Count II. Appellant was adjudged guilty of Count I, sexual battery, and sentenced to a prison term of 15 years.

Appellant first contends that the indictment is fatally defective as to Count I and will not support a judgment of conviction because it fails to charge a specific offense. We agree. Count I does not charge a specific offense but charges two separate offenses-one a felony of the first degree, under § 794.011(4)(a), and the other a felony of the second degree, under § 794.011(5). The first degree felony carries a maximum sentence of life imprisonment and the second a maximum of 15 years in prison. In support of his contention, appellant cites an 1880 opinion of the Supreme Court of Florida-McGahagin v. State, 17 Fla. 665. That opinion is directly on point and requires reversal. Thus, we must reverse and remand for a new trial.

Appellee, in reply, makes no reference to McGahagin but argues that Irvin v. State, 52 Fla. 51, 41 So. 785 (1906), and other cases require that a defendant must attack an indictment for duplicity before the verdict is rendered or the defect is waived. None of the authorities relied upon by appellee, however, deal with the proposition presented to us in the case sub judice and. which the Supreme Court was confronted with in McGahagin -an indictment charging two separate offenses in the same count and a general verdict of guilty on such count. McGahagin holds that such a verdict and judgment cannot stand as it cannot be determined which of the alleged offenses the jury found the defendant guilty of having committed.

The decisions cited by appellee finding waiver only apply where a single crime can be committed in alternative ways and the indictment alleges alternatively several acts, any one of which would support a guilty verdict for the one offense. Here, however, and in McGahagin, the two alternatives each constituted a separate and distinct offense. It is impossible to tell whether the jury found appellant guilty of the first degree felony or the second degree felony. While this point has been raised for the first time on this appeal, we must entertain the question because it points out fundamental error. We suggest that this dilemma could have been cured prior to the jury’s verdict by submitting special verdicts to the jury-one on the first degree felony and the other on the second degree felony.

Appellant’s second point contends that the evidence is insufficient to support the verdict, and appellant must, therefore be discharged. From a careful examination of the record, we find the evidence was not sufficient to have supported a guilty verdict for the first degree felony but was sufficient to have supported a guilty verdict for the second degree felony. Since it is impossible to determine whether the jury found appellant guilty of the charge on which the evidence was sufficient or guilty of the charge on which the evidence was insufficient, this point also requires a new trial. Neither this Court nor the trial court is privileged to make this determination for the jury.

We have considered appellant’s third point and find it to be without merit.

Reversed and remanded with directions that the charge of Count I of the indictment alleging commission of the sexual act while the victim was physically helpless to resist be stricken and a new trial granted on the remaining charge of Count I.

LARRY G. SMITH, J., concurs.

WENTWORTH, J., concurs specially.

WENTWORTH, Judge,

concurring specially.

I concur in the opinion of the majority that the evidence was insufficient to establish a violation of § 794.011(4)(a), Florida Statutes. Since this conclusion requires that appellant’s conviction be reversed and the cause remanded for a new trial on the remaining charge, appellant’s contention as to facial sufficiency of the indictment and the question of waiver are rendered moot and I would not address those issues.

      . In McGahagin, the Supreme Court said:
      This indictment charges two distinct offenses in one count, ... The criminal law never permits the joinder of two or more distinct offenses in one count of an indictment. The verdict of the jury was a general one of “guilty,” in no way designating of which of-fence the defendant was so guilty.
      Whether, had the verdict acquitted the defendant of one of the offences and found him guilty of the other, the defect might have been cured by the verdict, it is not necessary to determine. Before trial the indictment was demurrable for duplicity, or the defendant could have moved the court to quash it; he failed to do so and now moves in arrest of judgment. There are cases in which all of the circumstances necessary to constitute different crimes may be alleged in one count of an indictment, and yet be sufficient in law. These are cases where the offence described in the count is a complicated offence: as in an indictment for murder, which comprehends all the circumstances that go to constitute manslaughter; or in other crimes, where the lesser constitutes an essential part of the higher crime, and is merged in a conviction for such higher crime. This case is not an instance of an indictment setting out in one count a complicated offence, embracing various circumstances, which in themselves amount to offences, but it is a single count setting out two distinct and independent of-fences, which had no necessary connection with each other. The indictment is, within the meaning on Chapter 1107, Laws of 1861, “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defence,” &c., and we do not see that it was enacted to apply in a case of this kind. It was never intended by the Legislature in the passage of that act to compel the courts to try a prisoner for two or more distinct and separate felonies or crimes charged in an indictment containing but a single count.
      The statute referred to, Chapter 1107, Laws of 1861, is an erroneous citation. The correct citation is Chapter 1107, Laws of 1860. That statute provides that no motion in arrest of judgment shall be entered on a defective indictment unless the indictment is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense” or unless the conviction could subject the defendant to double jeopardy. The same statute also allows correction of such an indictment on order of the trial court before trial.


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

text:
    JAX LIQUORS, INC., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, and Beer Industry of Florida, Inc., Appellees.
    No. TT-290.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1980.

      Theodore L. Tripp, Jr. of Simon, Schindler & Tripp, P.A., Miami, for appellant.
    Harold F. X. Purnell, Tallahassee, for ap-pellee Dept, of Business Regulation.
    Lee L. Willis, C. Gary Williams and Michael Glazer of Ausley, McMullen, Mc-Gehee, Carothers & Proctor, Tallahassee, for appellee Beer Industry.
    Ronald R. Richmond, New Port Richey, amicus curiae.
   ROBERT P. SMITH, Jr., Judge.

We affirm the order of the DO AH hearing officer sustaining Rule 7A-4.13 of the Division of Alcoholic Beverages and Tobacco against appellant’s Section 120.56 challenge that (1) the Rule exercises regulatory powers not granted the Division by the Tied House Evil statute, Section 561.42, Florida Statutes (1979) and that (2) the statute, if construed to authorize the Rule, unconstitutionally discriminates against beer wholesalers and retailers and in favor of their counterparts who deal in distilled spirits and wine, to whom the Rule does not apply. The subject Rule requires beer wholesalers to give the Division and the trade ten days notice of changing their beer prices by posting intended price changes for that period. The posting requirement neither dictates what price shall be charged nor freezes prices. If he wishes, a wholesaler may charge a different price for beer every day; but the Rule does require that he announce the price change ten days before it is to become effective.

This challenge does not contest the Division’s rule-making authority, Section 561.42(8), nor its power thereby to require public posting of wholesale beer prices. In that respect the rule is plainly calculated to promote a statutory purpose, the prevention of price favoritism and discrimination by beer wholesalers among retailers. See Pickerill v. Schott, 55 So.2d 716 (Fla. 1951). Appellant concedes that price posting facilitates Division postauditing of sales, but urges that that legitimate benefit may be secured by price posting which is effective immediately for as long as the wholesaler wishes, i. e., until the wholesaler posts another notice effective immediately. At least, appellant suggested at oral argument, wholesalers should be permitted to post a price change effective the next day.

Thus it appears that appellant’s grievance against Rule 7A-4.13 is concerned with the details of the regulation, rather than with its purpose and principle. That being the case, appellant has assumed a heavy burden of proof in its attack upon the Rule. This is not a case in which the agency has undertaken policymaking by case-by-case adjudication, in which the agency is required to supply a “record foundation” for its policymaking. Florida Cities Water Co. v. Florida Public Service Comm ’n, 384 So.2d 1280, 1281 (Fla. 1980); McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Nor is this an appeal from Section 120.54 rulemak-ing proceedings, in which the agency’s duty is to supply a full and fair opportunity for affected persons to attack or comment on the proposed rule by debate and appropriate evidence, and our duty is to assure that the agency has done so. Balino v. Dept. of Health and Rehab. Services, 362 So.2d 21 (Fla. 1st DCA 1978), cert. den., 370 So.2d 458 (Fla. 1979). The time for debate over the wisdom of Rule 7A-4.13 is long past; the question now is whether “the rule is an invalid exercise of delegated legislative authority.” Section 120.56. On that question the presumption of the Rule’s validity gains added weight from its having laid upon the public record in Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature or its Administrative Procedures Committee, Sections 120.52(4), 120.545, Florida Statutes (1979). See Austin v. Austin, 350 So.2d 102, 104 (Fla. 1st DCA 1977), cert. den., 357 So.2d 184 (Fla. 1978).

Appellant has not sustained its rule challenge. The evidence submitted by appellant to the hearing officer does not show that Rule 7A-4.13 is without a rational relationship to the Tied House Evil statute. According to the hearing officer’s findings, more than 225,000,000 gallons of beer were sold through nearly 28,000 licensed Florida retailers during a recent 12-month period. In contrast to wine and liquor, which wholesalers sell in much less volume to many fewer licensees, usually by contracts made in advance of delivery, beer is usually sold on delivery by truck drivers calling on retailers. Given the volume, widespread dispersal, and informality of beer sales by wholesalers to Florida retailers, freefloating wholesale prices would create the potential for casual and undetectable discounts and other financial inducements to selected retailers. Therefore, as the hearing officer found, a reasonable posting period for price changes serves the purposes of the Tied House Evil statute by making an existing price more effectively “available to all retailers who wish to purchase similar quantities at the same time”; and the greater notice afforded by the ten-day posting period “gives retailers a way in which to discover if prohibited transactions have occurred.” Moreover, as noted above, prean-nounced price changes create audit periods for comparison of a retailers’ purchase records with the wholesaler’s posted price.

It is apparent that requiring wholesalers to give reasonable notice of their intended price changes is satisfactorily related to the purposes of the Tied House Evil statute, and therefore that the requirement is among the Division s rulemaking powers. Central Florida Distributing Co. v. Jackson, 324 So.2d 143 (Fla. 1st DCA 1975). On this record we need not determine whether two or three days’ notice would achieve the same beneficial purposes as ten days’ notice, while loosening the restriction on wholesale pricing practices, and if so whether the greater restriction is “an invalid exercise of delegated legislative authority.” In a rule challenge the burden of proving such matters is upon the challenger, and appellant made no evidentiary showing which would permit us to consider that question.

The stated differences between the distilled spirits and wine markets and the potentially volatile beer market create different policing problems and justify different treatment. This Rule does not deny any in the beer industry equal protection of the laws. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); North Ridge General Hosp., Inc. v. City of Oakland Park, 374 So.2d 461 (Fla. 1979). Contrast Castlewood Int’l Corp. v. Wynne, 294 So.2d 321 (Fla. 1974), in which no rational basis was shown for different credit regulations imposed on similarly situated marketers of alcoholic beverages.

AFFIRMED.

BOOTH and SHAW, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Dennis Andrew HEGSTROM, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2480.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Hegstrom was charged with robbery and first-degree murder alleged to have been committed with a premeditated design or while engaged in the perpetration of such robbery. He was convicted of both crimes and sentenced to life imprisonment on the murder charge and a consecutive one-hundred-year term on the robbery charge.

It was undisputed that the killing occurred during the course of the robbery. The only evidence adduced by the State respecting Hegstrom’s state of mind consisted of his conflicting out-of-court statements that (a) he knifed the victim in a sudden fit of anger and (b) he plunged the knife in the victim accidentally; and testimony that at the time of the robbery, Heg-strom was under the influence of drugs. The State’s other evidence proved only a premeditated design to commit robbery, not murder. On this record we conclude there was no evidence of premeditated design to support the jury’s verdict of first-degree murder on that theory. Our conclusion is bolstered by the fact that the near total thrust of the State’s closing argument to the jury dealt with the felony murder theory, and by the fact that during its deliberations the jury, in a note to the trial court, asked: “If we agree that a robbery occurred, is it or is it not possible to reach a third degree verdict?” The focus of the State and the jury was obviously felony murder.

Since the first-degree murder conviction is sustainable only on a felony murder theory, we must reverse and vacate Hegstrom’s conviction for robbery, the fel-ony which served as the basis for the felony murder conviction. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Pinder, 375 So.2d 836 (Fla.1979); Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980); Wright v. State, 380 So.2d 550 (Fla. 2dDCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5thDCA 1980). See also McRae v. State, 383 So.2d 289 (Fla. 2dDCA 1980).

Affirmed in part; reversed in part.

      . The trial court’s response to the jury, through reinstruction, is the subject of a separate point on appeal, which we find to be without merit.

      . In our view, State v. Pinder, infra, requires that the conviction not merely the sentence, be set aside. Prior to Pinder, the Florida Supreme Court, faced with a conviction of a lesser included offense, without discussion left the conviction undisturbed and set aside the sentence. See, e. g., Stevens v. State, 372 So.2d 1370 (Fla. 1979); Johnson v. State, 366 So.2d 418 (Fla.1978); and Cone v. State, 285 So.2d 12 (Fla. 1973). See also Gonzalez v. State, 367 So.2d 1008 (Fla. 1979). Pre-Pinder District Court decisions were in silent disarray. Corn-pare Ennis v. State, 364 So.2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So.2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So.2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So.2d 839 (Fla. 3dDCA 1976); and Sloan v. State, 323 So.2d 278 (Fla. 2dDCA 1975) (setting aside the judgment). Only Kimbrough v. State, 356 So.2d 1294 (Fla. 4thDCA 1978), and, to a lesser extent, Taylor v. State, 330 So.2d 44 (Fla. IstDCA 1976), openly addressed the validity vel non of the judgment and concluded that the judgment could not stand.
      While the United States Supreme Court had held that the double jeopardy clause protected against multiple punishments and prosecutions for the same (or lesser included) offense, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), it left undecided whether the double jeopardy clause precludes a conviction of the same or a lesser included offense where it is prosecuted in a single proceeding with the higher offense. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Pinder, finding that a conviction of the underlying felony in a separate trial was indistinguishable from the conviction of the underlying felony in the same trial, extended the holding of Harris v. Oklahoma, supra. It appears, however, that this has been twice overlooked by the very court which decided Pinder. In King v. State, 390 So.2d 315 (Fla.1980), although agreeing that “a judgment and sentence for the underlying felony” could not be imposed, the court affirmed the conviction and set aside the sentence. In White v. State, 377 So.2d 1149 (Fla.1979), the court merely set aside the sentence. A possible explanation of the Supreme Court’s failure to follow Pinder in that instance is that White merely attacked the sentence, not the conviction. See White v. State, 348 So.2d 368 (Fla. 3dDCA 1977).


author: SHARP, Judge.

text:
    Richard E. KISLING, t/a R. E. K. Group, Appellant, v. Stephen T. ROTHSCHILD and House of Rothschild, Inc., a Florida Corporation, Appellees.
    No. 79-1008/T4-538.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.

      Thomas V. Infantino and Patrick A. Ra-ley, Winter Park, for appellant.
    DeWolf, Ward, Morris, Wohlust & Starling, P.A., Orlando, for appellees.
   SHARP, Judge.

Kisling appeals from a final judgment after a non-jury trial denying him any relief against Rothschild and his company, House of Rothschild, Inc. In December 1977, Kisling filed a law suit seeking damages and injunctive relief against Rothschild because Rothschild had copied construction drawings and plans for a residence designed by Kisling, and built homes based on Kisling’s plans without his consent. The trial court held Kisling had no rights to his design and plans based on common law copyright because his plans were not “novel or secret.” It also held Kisling lost whatever common law copyright protection he may have had when he “published” the plans by filing them with the Seminole County Building Department to obtain a building permit, and by lending them to a friend who was thinking about building a home for himself. We reverse.

The evidence is without substantial conflict. In 1977, Kisling, a contractor and builder of residential homes, designed a horse-shoe shaped home with an interior courtyard, to be build in the Wekiva and Raintree areas. The design was intended to maximize natural light in the house, given the small size of the lots and set-back requirements in those subdivisions. Final construction drawings were prepared and submitted to the Seminole County Building Department to obtain a building permit, and Kisling built a home based on the plans.

Hancock, an acquaintance of Kisling’s, mentioned he was considering building himself a home. They talked about Kisling’s house and design. Hancock asked Kisling to let him take the plans home to show them to his wife. He wanted her to see the design for the “loft” in Kisling’s plans. Kisling allowed Hancock to take the plans for that purpose.

Shortly thereafter Hancock happened to meet Rothschild at McDonald’s. They talked about building homes. Hancock showed Rothschild Kisling’s plans, and Rothschild asked for a copy of them. At Rothschild’s request and expense, Hancock had a copy of Kisling’s plans made at a blue-print shop. He gave them to Rothschild and returned Kisling the original plans. For a long time Hancock refused to admit to Kisling that he had given Rothschild a copy of the plans.

Rothschild made a few minor changes in the plans, and had them copied over with his company’s name and logo on the front. He used the plans to build homes in the same area as Kisling’s. He also visited Kisling’s completed residence, surreptitiously, to check on a few construction details not clear in the plans.

Two architects or expert witnesses testified. The witness for Rothschild said Kis-ling’s design was not “unique” or “novel” because it was for a “spec” home rather than being intended for a particular family or owner. The witness for Kisling said the plan was “unique” in the sense that it was an original architectural design product.

If we take on an assignment, given certain objectives of the client and design for those objectives, we’re going to come up with a unique plan, not that its startling contemporary or startling in any fashion, just a unique creation. ... I would say the combination of the spaces is unique, and it has uniqueness by the way it was developed. He had an object in mind, worked towards that object, and then developed all the systems that would make that particular plan work.

(T. 59).

Initially we note that although this decision may be one of “first impression” in this state, it is also one of the last on the subject. Federal law has preempted this field, effective January 1, 1978. But that law does not apply in this case because the plans were appropriated and this suit was filed in 1977. In the balance of this opinion we will refer only to the law of common law copyright prior to 1978.

Common law copyright extends to a wide variety of artistic and commercial products. Architectural plans and designs are clearly covered by its umbrella. The test is not whether the plan is “unique,” “secret,” or “novel,” as is required for patents. Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972); Herman Frankel Organization v. Tegman, 367 F.Supp. 1051 (E.D.Mich.1973); Ga-On Homes, Inc. v. Spitzer, 178 U.S.P.Q. 183 (M.D.Fla.1973). Few novelists or artists could ever meet that test.

Hence, the architect who originates a set of blue prints for a dwelling is as much an author for copyright purposes as the writer who creates an original novel or dramatist who pens a new play. This authorship concept is no more than one facet of the essence of that which merits copyright protection-originality. However, while such originality is the test for copyrightability, it does not extend so far as to require that novelty or invention, which is the sine qua non for patent protection, be present.

Imperial Homes, 458 F.2d at 897.

The umbrella of protection afforded by a common law copyright folds up and vanishes when the owner of the product “publishes” it, or in some manner dedicates it to the public. The real issue in this case is whether Kisling lost his copyright protection when he allowed Hancock to look at his plans, or when he filed the plans with the county authorities to obtain a building permit.

The owner of a product covered by a common law copyright may make a “limited” or “restricted” publication and still preserve its protection. The burden of proof is on the user of the product, Rothschild, to show the publication was a “general” one.

A limited publication of a subject of copyright is one which communicates a knowledge of its content, under conditions expressly or impliedly precluding its dedication to the public.... The test is whether there is or is not such a surrender as permits the absolute and unqualified enjoyment of the subject matter by the public as the members thereof to whom it may be committed.
... a general publication consists of such a disclosure, communication, circulation, exhibitions, as of the subject of copyright, tendered or given to one or more members of the general public, as implies an abandonment of the right of copyright or its dedication to the public.

Werkmeister v. American Lithographic Co., 134 F. 321 (2d Cir. 1904).

In this case, Kisling lent his plans to his friend, Hancock, for his and his wife’s personal viewing. This is analogous to the private circulation of a manuscript, or the playing of a musical composition before a select audience. It does not constitute a general publication. See Imperial Homes v. Lamont, 458 F.2d 895 (5th Cir. 1972); Ga-On Homes, Inc. v. Spitzer Homes, Inc., 178 U.P.S.Q. 183 (M.D.Fla.1973); Stanley v. Columbia Broadcasting Systems, Inc., 35 Cal.2d 653, 221 P.2d 73 (1950); Masterson v. McCroskie, 573 P.2d 547 (Colo.1978); Seay v. Vialpando, 567 P.2d 285 (Wyo.1977).

There are conflicting decisions concerning whether the filing of plans with building authorities to obtain a building permit prior to construction constitutes a “limited” or a “general publication.” Compare DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D.Fla.1962) with Jones v. Spindel, 128 Ga.App. 88, 196 S.E.2d 22 (1973). However the better view is that such a filing does not constitute a “general publication” because the purpose of laws and ordinances requiring plans to be filed is to insure the construction of safe and acceptable building in a community, and not to deprive the architects and owners of plans of common law copyrights. Smith v. Paul, 174 Cal.2d 744, 345 P.2d 546 (1959); Masterson v. McCroskie, 573 P.2d 547 (Colo. 1978); Jones v. Spindel, 128 Ga.App. 88, 196 S.E.2d 22 (1973); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964); Krahmer v. Luing, 127 N.J.Super. 270, 317 A.2d 96 (1974); Shaw v. Williamsville Manor, Inc., 38 A.D.2d 442, 330 N.Y.S.2d 623 (1972); Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315 (1967). We agree that compliance with the building codes should not result in an automatic forfeiture of a common law copyright. The contrary view appears to us as unfair if not absurd.

We conclude Kisling established his cause of action against the defendants. Accordingly, we reverse the final judgment and direct that a judgment be entered for the plaintiff. We remand this cause to the trial court for determination of the amount of compensatory damages due to the plaintiff. Because of the length of time that has transpired since the trial of this case, the court may at its option take additional testimony on the damages issue.

REVERSED and REMANDED.

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

      . The Copyright Act of 1976, 17 U.S.C.A. § 301(a).

      . 18 Am.Jur.2d Literary Copyright & Property § 10 (1965).

      . 18 Am.Jur.2d Copyright & Literary Property § 10 (1965); Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972); DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D. Fla. 1962); Smith v. Paul, 174 Cal.App.2d 744, 345 P.2d 546 (1959); Masterson v. McCroskie, 573 P.2d 547 (Colo. 1978); Krahmer v. Luing, 127 N.J.Super. 270, 317 A.2d 96 (1974); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1973); Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315 (1967); Seay v. Viaipando, 567 P.2d 285 (Wyo.1977).

      . 18 Am.Jur.2d Copyright & Literary Property § 9 (1965); Schleman v. Guaranty Title Co., 15 So.2d 754 (Fla.1943) dictum.

      . 18 Am.Jur.2d Copyright & Literary Property § 79 (1965). Nimmer On Copyright § 58 at 224 (1976).

      . Masterson v. McCroskie, 573 P.2d 547 (Colo. 1978); Seay v. Vialpando, 567 P.2d 285 (Wyo. 1977).

      . Ashworth v. Glover, supra.

      . The lower court ruled that punitive damages were not established, and because this point was not raised on appeal, that ruling is not affected by this decision.


text:
    Randall Allen ELKINS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1652/T4-171.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, App.Div., Asst. Public Defender and Jorge Labarga, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was charged with delivery of phencyclidine (PCP) a controlled substance. After a motion to dismiss was denied, appellant entered a plea of nolo contendere specifically reserving his right to appeal the denial of his motion to dismiss. We affirm.

Officer Goode was on duty at the Orlando Police Station when a man unknown to him or anyone else in the Police Department came in and offered information about a subject who allegedly was selling PCP. About thirty minutes later, Officer Goode, wearing a body transmitter, accompanied the informant, known now only as “Zeke,” to the apartment where Zeke introduced Officer Goode to the appellant and Goode proceeded to discuss with appellant and another occupant of the apartment the purchase of some PCP. Appellant and his companion told Goode that they had a quantity of high quality PCP for sale and could get more. Officer Goode made a $20.00 purchase of the drug, after which a verbal signal was given resulting in his backup officers appearing and arresting appellant and his companion. After the arrest, appellant told one of the arresting officers that he had purchased the quantity of PCP from a friend who had more, and that he had sold a portion of this to Officer Goode.

Zeke was given the price of a night’s lodging and sent on his way. Because he was not previously known to the police and because they had no interest in using him again, the officers did not keep a permanent record of his identity, and although known at the time of the incident, Officer Goode could only recall the name “Zeke” when his deposition was taken. Because no record was kept of Zeke’s correct name or address, the State was unable to comply with an order to disclose the identity of the alleged informer, and based on this failure to produce the name, defendant moved to dismiss the information.

The motion to dismiss stated merely that Zeke introduced Officer Goode to appellant, was present during the transaction and was a witness to it. It then recites the State’s inability to produce his name and address, and asks for dismissal. In denying the motion the trial court found that Zeke was not a “confidential informant” but was more of a “tipster.” The court further found that there was no showing that the State either negligently or deliberately had neglected to keep a better record of Zeke’s identity and that under the facts of this case the sanction of dismissal was inappropriate.

Rule 3.220(c)(2) Florida Rules of Criminal Procedure provides:

Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at hearing or trial, or failure to disclose his identity will infringe upon the constitutional rights of the accused.

The record is clear that Zeke did more than merely tip the police to a possible violation of the law. He accompanied the officer to appellant’s apartment and was present during the transaction. However, whatever label we attach to Zeke, the general rule is that the State has the privilege of nondisclosure of the identity of the confidential informant and the burden is on defendant to show why disclosure should be compelled. Treverrow v. State, 194 So.2d 250 (Fla. 1967); State v. Anderson, 329 So.2d 424 (Fla.3d DCA 1978).

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the United States Supreme Court discussed the privilege of nondisclosure and said:

Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.
******
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. 77 S.Ct. at 628, 629.

In Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1965), the court discussed some of the factors involved in determining whether disclosure is required as including:

Whether it was necessary for the prosecution to refer to the informer in the presentation of the case, or whether the informer’s existence was first brought out on cross-examination by the defendant; whether the informer was an “active participant” in the offense with which the defendant is charged or is a “mere informer” who supplies a “lead”; whether the accused admits or does not deny guilt; and whether there is independent evidence of the accused’s guilt. The foregoing factors are only some of those considered in determining whether the privilege is applicable and is not intended to be all inclusive.

Applying the relevancy test of Rovi-aro, and reviewing the factors discussed in Spataro, we find no evidence in the record that either of these tests apply. Obviously the State had no intention of calling Zeke as a witness. While Zeke was present during the “buy” he did not actively participate in the offense for which appellant is charged. The accused pleaded rather than go to trial and there is independent evidence of his guilt.

In State v. Hardy, 114 So.2d 344 (Fla. 1st DCA 1959), the court outlined considerations involving disclosure as follows:

The privilege whereby law enforcement officers are not required to disclose the identity of those furnishing information with regard to the commission of crimes is based on sound public policy and has long been recognized by the courts of this country and of England. Hardy’s Trial, 24 How.St.Tr. 99 (1794); United States v. Moses, 1827, 27 Fed.Cas. page 5, No. 15,825, 4 Wash. C.C. 726. It is common knowledge that without the aid of confidential informants the discovery and prevention of crime would present such a formidable task as practically to render hopeless the efforts of those charged with law enforcement. And the alarming fact that the underworld often wreaks vengeance upon informers would unquestionably deter the giving of such information if the identity of the informer should be required to be disclosed in all instances. What we have said is not to be construed as indicating that such disclosure is absolutely privileged. The trial court may compel the disclosure when necessary to avoid the risk of false testimony or to secure useful testimony. 3 Wigmore on Evidence, 3 Ed., Section 2374. The rule is succinctly stated in Wharton’s Criminal Evidence, 12 Ed. 1955, Section 795, page 136: ‘The distinction is materiality. When such information is material to the issue, it cannot be withheld. But when it is immaterial the courts will not compel its disclosure.’

A factual situation much like the one here is found in Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975). There, like here, the informant accompanied the officer to the drug buy and introduced the officer to defendant. The agent made the purchase from defendant. The trial court refused to require the State to disclose the informer’s name, and the appellate court affirmed, saying:

A motion for discovery or the evidence must show that the informant’s testimony is relevant and material to the establishment of a defense the defendant has or proposes to present. Doe v. State, 262 So.2d 11 (Fla.App. 1972). Id. at 230.

Appellant has not made the required showing of necessity for the informer’s identity, nor attempted to demonstrate even a possible defense the informer could substantiate or prove. No showing of prejudice is made resulting from the State’s inability to produce the informer’s identity. Appellant does not argue the trial court’s finding that the State neither deliberately nor negligently failed to preserve a record of the informer’s identity. Thus, neither State v. Jones, 247 So.2d 342 (Fla.3d DCA 1971) nor Munford v. State, 343 So.2d 67 (Fla.2d DCA 1977), quashed in part, 357 So.2d 706 (Fla. 1978), is on point. Since the State would have been correct in refusing to disclose the identity of the informer under the circumstances of this case, the trial court was correct in denying the motion to dismiss when the State was unable to produce his name and address.

Appellant raises the additional point that Condition 11 of his probation order which requires him to submit to a warrant-less search of his person, residence, or automobile by any law enforcement officer or his probation supervisor is violative of his constitutional privilege against unreasonable searches. This condition is too broad insofar as it permits warrantless searches by any law enforcement officer, but is correct insofar as it permits such searches by appellant’s probation supervisor. Grubbs v. State, 373 So.2d 905 (Fla. 1979); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980).

Condition 11 of the probation order is therefore modified to apply only to appellant’s probation supervisors, and as modified, the judgment and sentence are

AFFIRMED.

FRANK D. UPCHURCH and SHARP, JJ., concur.


author: COWART, Judge.

text:
    In the Interest of W. W., JR., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-838/T4-498.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, Jon May, Legal Intern, and Tatjana Osta-poff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant, a dependent child with a history of psychiatric treatment and hospitalization, ran away before his first adjudicatory hearing on delinquency charges relating to stealing $1.25 from a vending machine. He was apprehended and placed in a detention home. He wanted to return to a hospital. On the night before his second scheduled adjudicatory hearing, he pounded on the walls, threatened suicide and scratched his wrists and knuckles. He was taken to the hospital and examined and found “probably a manipulator” and returned to the detention home. Next day at the adjudicatory hearing, the judge, after questioning the child, denied a motion for a continuance made on the ground that the child was not competent to stand trial as the result of his suicide attempt. The child later testified in his own behalf admitting his involvement. The court found him delinquent (a second degree misdemeanor with a maximum of 60 days of commitment or control) and disposed of the case by releasing the child from detention, returning him to the children’s home, and directing continued mental health treatment.

Florida Rule of Juvenile Procedure 8.170(a)(1) provides in part:

If ... the court has reasonable grounds to believe the child ... may be incompetent to proceed with an adjudicatory hearing, the court shall immediately stay the proceedings and fix a time for a hearing for the determination of the child’s mental condition.

The public defender, citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 876, 43 L.Ed.2d 103 (1975), argues that the child’s psychiatric history, coupled with the claimed suicide attempt constitutes, as a matter of law, reasonable grounds to believe the child to be incompetent to stand trial and required the trial court to stay the adjudicatory hearing and set a separate competency hearing.

In Drope v. Missouri, supra, Drope was accused of assisting in the forcible rape of his own wife. She testified that he also tried to kill her a few days before the trial. During an over-night recess, Drope shot himself and the trial was completed in his absence. In reversing Drope’s conviction, the United States Supreme Court held that too little weight had been given these particular facts especially the fact that Drope’s absence prevented the trial court from observing him to gauge if he was able to cooperate with his counsel and to understand the nature and object of the proceedings.

We recognize that in a given case, such as Boggs v. State, 375 So.2d 604 (Fla. 2d DCA 1979), where there was a positive unequivocal uncontradicted opinion of a psychiatrist relating directly to the accused’s competency to stand trial, the trial court may have compelling evidence of a reasonable ground for believing one might not be mentally competent to stand trial; however, in other cases, the matter is not that clear. For example, in this case, as generally, there is uncertainty as to whether suicide attempts evidence inability to perceive reality and to reason logically; there is also no certain relationship between mental illness or instability and incompetence to stand trial. The relationship can depend on the nature of the particular charges and the trial as well as on the mental condition of the accused. There may be serious questions as to the motive and sincerity of any alleged suicide attempt.

In this particular case, the trial court had before it much evidence as to the background of the mental and emotional problems of the child and had an ample opportunity to observe the child’s demeanor and comprehension and upon such evidence and observation made a decision that the facts presented did not reasonably require a separate further hearing that the child was mentally incompetent to stand trial. The grounds urged to suggest that the child may have been incompetent presented a mixed question of fact and law and the trial judge’s decision is entitled to great weight. We hold that under the circumstances presented in this particular case the trial court did have discretion to evaluate the grounds presented to it and was not required, as a matter of law, to stay the adjudicatory proceedings and make further inquiry as to competency in a separate hearing. Accordingly, the adjudication and disposition are

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: BOOTH, JOHN W., Associate Judge.

text:
    Jules S. WEIL, Appellant/Cross-Appellee, v. Jerome T. WEIL, Individually, and as Trustee; George J. Persis and Rose M. Persis, Appellees/Cross-Appellants.
    No. 79-147.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.

      Gregory J. Kimball and Arthur H. Gehris, III, Daytona Beach, for appellant/cross-ap-pellee.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellees/cross-appel-lants.
   BOOTH, JOHN W., Associate Judge.

Appellant appeals whether the trial court abused its discretion in: (1) setting aside the default entered by the clerk against appellee Jerome T. Weil and then proceeding to trial on the merits, and (2) determining that appellant’s conveyance of real property to appellee Jerome T. Weil, as trustee, was made without undue influence or duress. We affirm on those points.

Appellees cross-appeal the trial court’s finding that the deed executed from appellee Jerome T. Weil, as trustee, to the appellees Persis was null and void. The issue of whether or not such deed was a conditional delivery was neither presented to the trial court in the pleadings nor tried during the course of the trial court’s proceedings. Resolution of that issue would require evidence different from that which was required for proof of the issues that were presented in the pleadings of the parties.

Therefore, the trial court’s findings of fact contained in paragraphs (b) through (e) of its order rendered August 22, 1979, are hereby stricken and the trial court’s adjudications contained in paragraphs II through IV of that order are reversed. The parties may argue those matters if they are properly pled in some subsequent proceeding.

AFFIRMED IN PART; REVERSED IN PART.

COBB, J., concurs.

DAUKSCH, C. J., concurs in result only.