author: BERANEK, Judge.

text:
    Milton DAVIS and Aetna Casualty & Surety Company, Appellants, v. William R. TEDDER, Deborah Tedder, his wife, and Mike Hill, et al., Appellees.
    No. 79-1509.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 16, 1980.

      George H. Moss and Everett J. Van Gaas-beck of Jones & Foster, P.A., Vero Beach, for appellants.
    Hubert R. Lindsey, West Palm Beach, for appellees.
   BERANEK, Judge.

This is an appeal by defendant from a final judgment in favor of plaintiffs after jury trial in a personal injury action. Plaintiff was paralyzed when he hit a log and fell while riding a motorcycle in a park in Fort Pierce on January 13, 1973. A portion of the park was designated as a motorcycle riding area.

Plaintiff originally sued the City of Fort Pierce and several employees. The case was dismissed as barred by the statute of limitations and this court reversed the dismissal as to the individual defendant employees. Tedder v. City of Fort Pierce, 333 So.2d 506 (Fla. 4th DCA 1976), cert. denied, 345 So.2d 428 (Fla.1977). On remand, the matter proceeded to trial against the City employees on the theory of personal liability-

At the conclusion of the trial, plaintiff voluntarily dismissed several of the individual defendants and the case was submitted to the jury against the City Manager, Milton Davis, and a City Police Officer, Michael Hill. The jury returned a verdict for the plaintiff against the defendant City Manager only, finding in favor of the defendant Police Officer. The jury found the plaintiff guilty of comparative negligence equal to 75%, and assessed the City Manager’s negligence at 25%.

On appeal, defendant contends the trial court erred in failing to direct a verdict because plaintiff has not proven the requisite special duty necessary to establish the liability of a public officer. Appellant also contends that Section 375.251, Florida Statutes (1979), limits liability for injury in parks and provides immunity in this case.

The cause of action herein accrued prior to the effective date of the waiver of sovereign immunity contained in Section 768.28, Florida Statutes (1975). As such this case is governed by the dictates of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). See Infande v. Seligman of Florida, Inc., 380 So.2d 1169 (Fla. 4th DCA 1980).

Modlin states that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. Further, this duty must be something more than the duty that a public officer owes to the public generally. This gives rise to the requirement of a special duty. The precise question here would be whether the City Manager owed a greater or special duty to plaintiff than he owed to the public generally.

Modlin was overruled by the Florida Supreme Court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). Therein the Modlin rule was soundly criticized. Commercial Carrier comments that the special duty requirement results “in a duty to none where there is a duty to all.” Despite this criticism and despite the difficulty in applying the special duty doctrine, we believe we must apply the law as announced in Modlin to this case. Commercial Carrier rejected Modlin stating: “Consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent,to the effective date of Section 768.28.” This accident, however, occurred before the effective date of the statute.

Plaintiffs showed that defendant, Milton Davis, as City Manager, supervised the building and construction of the park. The complaint alleged a duty to construct the facility in a safe manner and a duty to warn the public of hazards. Plaintiffs argue that because the evidence showed the City Manager knew of logs in the park, he had a duty to put up warning signs which might have affected defendant. and other motorcyclists.

We hold that no special duty has been demonstrated here. In Modlin, plaintiff’s wife was killed when a mezzanine collapsed upon her while she was shopping in a store. Modlin held that a city building inspector owed no greater duty to the patron of a retail establishment than he owed to the public at large. Thus, the building inspector was not held personally liable to plaintiff and the City, in turn, was not liable under the doctrine of respondeat superior. In the case below, defendant, City Manager, was certainly not shown to have any greater duty than demonstrated in Modlin. We, thus, conclude that a directed verdict should have been entered in favor of the defendant City Manager. We also note that the other individual defendant in this case was exonerated by the jury of any negligence. This defendant was a Police Officer and was at the park on the day in question. Plaintiff asserted that this Police Officer should have taken steps to protect him and that his failure to do so constituted negligence. It would seem that the duty owed by the Police Officer under the circumstances of this case was more direct and “special” than that owed by the City Manager. There was evidence that the Officer had an assignment to generally monitor the motorcycles in the park. In any event, the correctness of the jury’s finding of negligence on the Police Officer’s part is not before us.

We conclude that Modlin v. City of Miami Beach, supra, required a directed verdict in the defendant’s favor and the final judgment below is, therefore, reversed and the cause .remanded with directions to enter judgment for the defendant and for further appropriate action as required on motion of any party.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and HERSEY, JJ., concur.

      . In the trial of this cause, the jury was advised that out of the five individual defendants, only one was covered by liability insurance. Plaintiff took a voluntary dismissal of three of the defendants before submission of the case to the jury. The jury found in favor of the uninsured defendant and against the insured defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph J. GALLUCCI, Appellant, v. STATE of Florida, Appellee.
    No. 79-1764.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.

      John P. Gaudiosi, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst.. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

It appearing that the appellant was sentenced at a time when jurisdiction of this cause was vested in this court, it is hereby ordered that the judgment of the trial court is affirmed but the sentence is vacated and the case remanded for resentencing. The appellant need not be present at the resen-tencing.

ANSTEAD, MOORE and HURLEY, JJ., concur.


author: ERVIN, Judge.

text:
    Steven HURT, Hewey Lee Alday, Alexander Guriak, James McCardle, Thomas Edward Alexander and Michael Robert Sholl, Appellants, v. STATE of Florida, Appellee.
    Nos. NN-58 to NN-62 and NN-178.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 13, 1980.

      Manuel W. James, North Miami Beach, Alvin E. Entin, North Miami Beach, and Clyde M. Taylor, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellants were convicted for possessing more than 100 pounds of cannabis with intent to sell after they pled nolo conten-dere, reserving their right to appeal the denial of their suppression motion, which, if reversed, would be dispositive of their cases. Finding that the officers had no right to make a warrantless entry into the building where the cannabis was seized, we reverse.

The facts in this case stem from those recited in Behr v. State, 376 So.2d 398 (Fla. 1st DCA 1979), where we upheld the war-rantless search of co-defendant Behr’s truck because the searching officers possessed probable cause to search before their entry. Since Behr was convicted only of the misdemeanor offense for possession of marijuana, we did not decide in that case whether the search of the warehouse was legal. Nevertheless, given our holding in Behr, we must necessarily assume that if the search of the warehouse were conducted with a warrant, probable cause would exist for the warrant’s issuance. Our inquiry then is directed to whether the entry of the building and the subsequent seizure of cannabis found within it can be sustained in the absence of a search warrant.

Shortly after Behr was seen leaving the warehouse in his truck, he was stopped, arrested, and, certain officers were instructed to return to the warehouse and “secure” it while other officers obtained a search warrant. The officers at the scene knocked on a rear door, announced “police” as an occupant began to open it, and, seeing what appeared to be bales of marijuana inside, pushed their way in, arrested the appellants and seized several tons of marijuana. In denying the motion to suppress, the court held that because the officers were lawfully on the premises for the purpose of securing the warehouse and detaining the occupants, if any, until a search warrant was obtained, they were privileged to seize that which they saw in plain view after a door was opened and before they crossed the threshold.

Factually this case is quite similar to Raffield v. State, 351 So.2d 945 (Fla.1977), where the state argued that a warrantless search of Raffield’s barn, made shortly after the seizure of several vehicles in which marijuana was found, was required due to the searching officers’ belief that a warrant could not be promptly obtained in a rural county and that the resulting delay might have contributed to the destruction of the marijuana found inside the barn. The court rejected these contentions, stating that while exigent circumstances may justify a warrantless search, none were there present since no attempt was made to secure a warrant and “[t]he timing of the drivers’ arrest” did not establish an emergency situation permitting the entry. 351 So.2d at 947.

Here, the state contends its war-rantless intrusion was vindicated by the plain view doctrine, which is an exception to the warrant requirement, permitting the admissibility of evidence “seized by an officer who has an independent justification for being present unconnected with the search against the accused and who inadvertently comes across an object which is obviously evident.” United States v. Diecidue, 603 F.2d 535, 559 (5th Cir. 1979). The doctrine presupposes the officer’s legal right to be where he was at the time the evidence was first seen. State v. Ashby, 245 So.2d 225 (Fla.1971); Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974). Here, the discovery of the marijuana was not inadvertent, nor were the officers legally at the opened door of the warehouse. True, their stated purpose for knocking was to secure the building and detain any persons who might be inside it. Yet they were there ultimately for the purpose of searching the premises which they had reason to believe contained marijuana. If the officers truly wished to detain any possible persons within, they were at most justified in surveilling doors and other possible exits from the building while they waited outside for a search warrant they believed would be forthcoming. Describing the inadvertence requirement, the Court, in Coolidge v. New Hampshire, 403 U.S. 443, 470-71, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971), stated: “[Wjhere the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it,.' . [t]he requirement of a warrant poses no inconvenience . . . which is constitutionally cognizable in the legal system that regards warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent circumstances.’ ”

It is one thing for officers to be legally on the premises pursuant to an investigation, reasonably believing that persons are within who might provide information helpful to the case, and while there inadvertently see evidence of a crime, which they are then authorized to seize. Compare Menendez v. State, 368 So.2d 1278 (Fla.1979); State v. Ashby, supra; Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977). It is an altogether different matter for them to use plain view as a pretext for a warrantless search of a building when they know a search warrant should first be obtained before entry is allowed.

The state, however, alternatively defends the entry on the ground it was justified by the provisions of Section 901.19(1), Florida Statutes (1977), the “knock and announce” statute. Section 901.19(1) permits a warrantless entry into a building “where the person to be arrested is or is reasonably believed to be” if the officer first knocks and announces his authority for the purpose of making “an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, . . . ” While Section 901.19(1) does not require that an arresting officer be aware of the actual identity of the person he seeks to arrest, it necessarily presumes the existence of someone, as well as the officer’s reasonable belief the person sought to be arrested is present at a certain location. As stated, the officers had no reasonable grounds to believe there was anyone inside the building. In fact, the order denying the motion to suppress reflected the officers’ uncertainty of the warehouse’s occupancy, when it stated they were on the premises “for the purpose of securing the warehouse and detaining occupants, if any, . . . .” (e. s.) The officers who gained entry were unaware at that time whether anyone occupied the building. Obviously the statute cannot be interpreted as condoning a warrantless entry into a building when the arresting officers are without facts leading them to believe anyone is within for them to arrest, and when their avowed purpose for being on the premises is not to arrest, but to secure the building while awaiting the delivery of a search warrant.

Assuming Section 901.19(1) may be interpreted as permitting the officers’ entry, even in the absence of facts reasonably causing them to believe the presence of occupants, the seizure must still be invalidated because they failed to comply with the provisions of the statute. Although, as found by the trial judge, the officers knocked and, as the door was opened, announced their identity, they nevertheless did not announce their purpose. The cases interpreting Section 901.19(1) clearly hold that law enforcement officers, prior to opening or entering through a doorway, must first knock, announce their name and authority, and their purpose. See, e. g., Benefield v. State, 160 So.2d 706 (Fla.1964); Earman v. State, 265 So.2d 695 (Fla.1972); Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973); Kistner v. State, 379 So.2d 128 (Fla.1st DCA 1979). As observed in Benefield v. State, supra, arresting officers must comply strictly with the requirements of Section 901.19(1). Here they did not. The contraband seized must be suppressed as evidence.

Because of our decision, we do not decide whether the United States Supreme Court’s opinions in Payton v. New York and Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), holding that “the Fourth Amendment to the United States Constitution . . . prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest,” will be extended to buildings other than homes. 445 U.S. at 576, 100 S.Ct. at 1375. See also State v. Santamaria, 385 So.2d 1130 (Fla. 1st DCA 1980). We note, however, that despite the limited facts in Payton and Reddick, supra, the Court there stated that seizures of persons and of things are protected to the same extent, and it repeatedly contrasted seizures in public places with seizures “on private premises to which access is not otherwise available for the seizing officer.” 445 U.S. at 587, 100 S.Ct. at 1380, quoting G. M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977).

It was specifically stated in the record that the ruling on the motion to suppress would be dispositive of the cases. Accordingly, the convictions of all these appellants are reversed with directions that they be discharged from any further custody as to the offense involved in these consolidated appeals. See Brown v. State, 376 So.2d 382 (Fla.1979).

MILLS, C. J., and SHIVERS, J., concur.


author: SHIVERS, Judge.

text:
    GEORGE A. FULLER COMPANY and St. Paul Mercury, Inc. care of AFIA, Appellants, v. Hubert CHASTAIN, Appellee.
    No. RR-16.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 17, 1980.

      Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellants.
    Joseph L. Thury, of Antinori & Thury, Tampa, for appellee.
   SHIVERS, Judge.

This cause is before us on appeal from an Order of the Judge of Industrial Claims finding the claimant sustained a compensa-ble accident under Chapter 440, F.S., and awarding temporary disability benefits and further medical treatment. Although appellants contend there is no coverage under Florida law because the contract of employment was formed outside the state, and further argue the claimant was not entitled to continuing compensation at the maximum rate even assuming coverage, we find no reversible error.

On September 3, 1978, claimant sustained an injury to his lower back by accident arising out of and in the course of his employment with appellants in Saudi Arabia. Appellants disputed compensability on the grounds the employment was localized in Saudi Arabia and the employment contract was made in New York rather than in Florida. Section 440.09(1), F.S. (1977) provides coverage for an out-of-state accident if either “the contract of employment was made in this state” or “the employment was principally localized in this state.” Bechtel Power Corporation v. Page, IRC Order 2-3255 (1977).

There is competent, substantial evidence in the record to support the finding that claimant’s contract of employment with appellant was made in Florida. Prior to obtaining a job with appellant George A. Fuller Company, claimant was residing in Seff-ner, Florida, and working in St. Petersburg, Florida. In 1977, he decided to seek employment overseas and hired a Tampa personnel agency to help him prepare a resumé which was then sent to various contractors. Thereafter, appellant contacted claimant by telephone from New York regarding a job in Saudi Arabia. Following the call, claimant was personally interviewed for the job by appellant in St. Petersburg.

On December 29, 1977, after additional contacts by mail and telephone, appellant sent a letter to claimant in Florida conditionally offering him employment provided he could obtain a passport, was qualified for the position offered, was able to pass a physical examination, and was able to obtain a Saudi Arabian visa. He obtained his passport in Florida and passed a physical examination by a physician of appellant’s choice in St. Petersburg. Claimant’s Saudi Arabian visa was obtained by appellant.

Subsequently, claimant was found to be qualified for the job and received a contract of employment in the mail which he signed in Florida and sent back to appellant in New York. Pursuant to appellant’s instructions, claimant then flew to New York where he was reimbursed for his previous costs, given his visa, and provided additional spending money for his trip to Saudi Arabia. While in New York, a second employment contract was executed because the previous contract contained a $3.00 mistake as to the amount of pay claimant would receive per week. The claimant then boarded a plane for Saudi Arabia that day.

It is clear the contract of employment was made in Florida. Claimant satisfied all conditions for employment in Florida, including the execution of the employment contract. Unlike Ray-Hof Agencies, Inc. v. Petersen, 123 So.2d 251 (Fla.1960), upon which appellants base their contention that the place of contract was in New York rather than in Florida, claimant’s trip to New York was not the last act necessary to complete the contract. The trip to New York was necessary only to facilitate claimant’s departure for Saudi Arabia and the execution of the second contract served only to correct a mistake contained on the face of the first contract. At the time claimant arrived in New York, the parties had already reached an agreement as to claimant’s employment as seen by the initial contract which was executed in Tampa. Therefore, when the claimant boarded the airplane in Tampa for the flight to New York, he was an employee of appellant.

Appellants also contend the Judge of Industrial Claims erred in awarding claimant continuing temporary partial disability benefits at the maximum compensation rate. We disagree. The amount of claimant’s average weekly wage prior to the injury, which was $750, and his post-injury wage-earning capacity, which was $100 per week, entitled him to temporary partial benefits at the maximum rate. Section 440.15(4), F.S. (1977). Although the post-injury wage-earning capacity figure was the same as the amount of claimant’s actual post-injury wages, there is sufficient evidence within the record to support the determination that $100 per week constituted claimant’s temporary wage-earning capacity. Since there was no evidence claimant had reached maximum medical improvement at the time of the order, the award of continuing temporary disability benefits was proper.

In affirming, we note appellants have attempted to assert various errors by the Judge of Industrial Claims in a shotgun fashion under the second issue on appeal. Nonetheless, we find there is competent, substantial evidence to support the order. The order therefore is affirmed.

ROBERT P. SMITH, Jr., J., and ERNEST E. MASON (Retired), Associate Judge, concur.


text:
    James Frank ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. SS-99.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 13, 1980.

      Donald G. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Wallace Allbrit-ton, Asst. Atty. Gen., Tallahassee, for appel-lee.
   SHIVERS, Judge.

Defendant appeals from an order denying his motion to suppress cocaine seized during an airport search, contending the evidence was the product of an unreasonable search and seizure and therefore inadmissible in evidence. We agree and reverse.

On May 16, 1979, defendant James Frank Robinson disembarked from a plane at the Jacksonville airport. As he was leaving the airport and preparing to get into a taxi, he was a stopped by Officer Anthony Hickson, a Sheriff’s detective, who was working the airport narcotics detail that day. Officer Hickson identified himself, told Robinson he wanted to talk to him, and asked Robinson to step back inside the airport terminal. Once inside the terminal, Robinson was asked for some form of identification and his airline ticket. He presented a ticket in the name of “J. Smith” and his driver’s license which was issued in his own name. After taking possession of Robinson’s driver’s license and airline ticket, Officer Hick-son searched Robinson’s luggage and found cocaine in a brown shaving kit. Officer Hickson testified that Robinson consented to the search. Robinson testified that he asked Officer Hickson for a search warrant and denied consenting to a search of his luggage. Upon finding cocaine, Hickson arrested Robinson, took him to an airport office, and searched the rest of his belongings, turning up more cocaine.

At the suppression hearing, Robinson contended Officer Hickson had neither probable cause nor a reasonable suspicion to justify the initial stop. Robinson further argued he did not consent to a search of his luggage, and, even if there was consent, such consent was tainted by the illegal stop and detention and therefore invalid. The State argued that Officer Hickson had a reasonable, articulable suspicion, based upon his observation of Robinson’s behavior in light of the objective criteria of the “drug courier profile” analysis to support the initial stop. The trial court, in denying Robinson’s motion to suppress, ruled that there were “sufficient objective facts present to support the reasonable suspicion in the officer’s mind that the present defendant was involved in possessing or transporting narcotics” and that defendant consented to a search.

Robinson was convicted for possession of cocaine upon his nolo contendere plea which was entered with the specific reservation that he could appeal to this court the trial court’s denial of his pretrial motion to suppress.

The primary issue presented by this appeal is whether the investigatory stop of Robinson was based upon a well-founded, articulable suspicion that he was unlawfully carrying narcotics. In order to effect a lawful investigatory stop of an individual, police officers must have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Frost, 374 So.2d 593 (Fla.3rd DCA 1979). The transcript of the suppression hearing reveals the following testimony by Officer Hickson on direct examination as to the grounds which he used to justify the initial stop of Robinson:

Q All right, sir. What did you do after you saw the Defendant, James Robinson?
A I alerted Detective Higginbotham to observe Mr. Robinson. And I went downstairs, because I didn’t want him to see me. And I went downstairs to the baggage area on the elevator while Detective Higginbotham followed him downstairs.
Q All right. What happened then?
A At that point he went to the luggage area where he picked up a suitcase.
Q And by “he,” you mean the Defendant?
A Yes; Mr. Robinson.
Q What happened next?
A After he picked up the suitcase, he attempted to leave the airport. And at that point I advised Detective Higginbot-ham that we were going to stop Mr. Robinson.
Q All right. At that point, Detective Hickson, other than the prior arrest that you had had for narcotics on Mr. Robinson some two or three years ago, had you received any other knowledge with regard to Mr. Robinson?
A No.
Q Okay. What happened after you advised Detective Higginbotham that you were going to stop him?
A Mr. Robinson then went out the door and was walking toward the taxicab. And I walked up behind him and identified myself and advised him that we wanted to talk to him; would he come back inside into the airport.
Q All right, sir. Why did you stop him, Detective Hickson?
A Well, two reasons: Number One, he was coming from-on a flight from the West Coast, which is one of the flights that we normally watch-what we consider a target city where drugs come into Jacksonville from the West Coast. And, secondly, because of my personal knowledge of Mr. Robinson.

Later, on cross-examination, Officer Hick-son testified:

Q Officer Hickson, this particular flight-you say that came in from the West Coast.
Isn’t it true that the flight Mr. Robinson was on came from New Orleans?
A If I remember correctly, it made a stop in New Orleans. But the flight originated in the West Coast.
Q All right. Isn’t it true that, actually, in New Orleans Mr. Robinson changed a different plane-on a different flight-to proceed on to Orlando and then on to Jacksonville? You checked that out, I guess?
A I think the itinerary on the ticket-J. Smith-it had the flight originated in San Francisco, I believe, to New Orleans to Orlando, I believe. And then it terminated here. So it’s a continuing flight.
Q Okay. At the time that Mr. Robinson is coming down the concourse and going down the steps to get his luggage, walking out of the airport and headed toward the cab, you had no information as to where he was coming from; did you?
A The only thing I knew was that he had got off of the flight. And I didn’t know which, you know, specific city he was coming from. But I know he got off of that flight.
Q You didn’t know if he got off that flight in Orlando?
A At that point I didn’t; no.
Q You didn’t know if he got off in New Orleans or some other place at that point in time?
A At that point I didn’t know; right.
Q All right, sir. And now isn’t it true that about 1974 or ’75 was the time that you had previously arrested Mr. Robinson, and that that particular case had been dismissed in court?
A I didn’t remember the exact date. But, you know, I said two or three years.
But if it was ’74,1 guess that’s when it was.
Q And since that period of time,you have not had occasion to arrest him for anything?
A No; I have not; no, sir.
Q And up until the time that you have arrested him for this particular charge on May 16, ’79?
A That’s correct.
Q All right. When Mr. Robinson got off the plane and walked down to get his luggage, did you have any reason to believe he was armed?
A No; I did not.
Q Okay. Other than him being on this particular flight, and other than that you had in 1974 or ’75-that area-previously had a case relative to him, did you have any reasonable suspicion whatsoever to believe he was violating the law in any way?
A No.
Q Okay. Those are the two things that you based your stopping him on. That is to say, he was on a particular flight, and that you had known him before?
A That’s correct.

We conclude that Officer Hickson could not, as a matter of law, have reasonably suspected Robinson of criminal activity under these circumstances. The evidence shows that Officer Hickson stopped Robinson because he had disembarked from a flight which originated in a drug profile target city, but with several intervening stopovers, and because he recalled arresting Robinson several years earlier on a narcotics charge which was subsequently nolle prossed. Officer Hickson stated that he did not even know which city Robinson was coming from at the time of the initial stop. With the exception of Officer Hickson’s knowledge of the previous arrest, there is nothing to distinguish Robinson’s actions or conduct from that of the general public based upon these facts. See, Reid v. Georgia, - U.S. -, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). Thus, the sole reason Officer Hickson initially stopped Robinson was based upon his prior arrest of Robinson.

Under the Fourth and Fourteenth Amendment, an individual’s reasonable expectation of privacy is protected from arbitrary invasions solely at the unfettered discretion of police officers in the field. Brown v. Texas, supra; U.S. v. Brignoni-Ponce, supra; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). We hold that an officer’s knowledge of - a suspect’s previous arrest, standing alone, is insufficient to give rise to a reasonable suspicion that a crime may have been or is being committed in order to justify a lawful investigatory stop.

The legality of the initial stop is significant because any consent to search following an unconstitutional stop is presumptively tainted by the illegal stop and hence invalid. Norman v. State, 379 So.2d 643 (Fla.1980); Taylor v. State, 355 So.2d 180 (Fla.3rd DCA 1978), cert. denied 361 So.2d 835 (Fla.1978); State v. Frost, supra.

When trying to establish that there was a voluntary consent after an illegal stop, the government has a much heavier burden to carry than when the consent is given after a permissible stop. U.S. v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978); U.S. v. Troutman, 590 F.2d 604 (5th Cir. 1979).

Under these circumstances, the burden is on the State to prove by “clear and convincing evidence” that the defendant freely and voluntarily consented to the search, Sagonias v. State, 89 So.2d 252 (Fla.1956), so as to show a clear and unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal action. Norman v. State, supra; Taylor v. State, supra. “Ordinarily consent given after an illegal arrest will not lose its unconstitutional taint.” Bailey v. State, 319 So.2d 22, 28 (Fla.1975).

There is no easy definition of what constitutes a free and voluntary consent to search which is sufficient to escape the presumptive taint following an illegal stop. In each case, it must be determined from a “totality of the circumstances” as to whether the consent was in fact voluntarily given by the defendant or was the product of the illegal police action. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Based on the totality of the circumstances, the record in this case indicates the State has failed to show by clear and convincing evidence that Robinson’s consent to search was free and voluntary. Robinson testified that he did not consent to a search. He claims he asked Officer Hickson for a search warrant and was told his luggage would be searched whether or not he consented. Officer Hickson denied Robinson’s testimony claiming he told Robinson he had a right to refuse a search, and that Robinson freely consented. However, Officer Hickson’s testimony is not completely consistent. On cross-examination, Officer Hickson testified:

Q All right. When you were asking him about searching, did he actually say, “Go ahead and search,” or did he say nothing and throw up his hands?
A No. I think he said, “Yeah,” or something like that.
Q You asked him, “Do you mind if I search,” and he said, “Yeah”?
A Yes; that’s correct.
Q Did you ask him anything else, or did you ask him more than once?
A No. I didn’t ask him more than once.
Q Just one time?
A Yes.
Q Okay. He was not inviting the search, though-. You were the one that wanted to search the thing; is that correct?
A That’s correct.
Q All right, sir. And it was only after the search that you arrested him?
A That’s correct.

Later, on redirect, Officer Hickson testified:

Q Detective Hickson, when you asked Mr. Robinson if you could search, was it your understanding that he consented?
A Was it my understanding that he consented?
Q Yes.
A Yes, it was.
Q Did he give you his consent to search is what I’m asking-
A Yes, he did.
Q -because I may have misunderstood.
But, as I understand it, Mr. Nichols asked you just a moment ago something to the effect, “Do you mind if I search,” and the Defendant said, “Yeah,” which, in my mind, indicated he might have minded.
Was that what you intended to say, or was it that he did not indicate permission to search?
A Well, when I answered his question, you know, this is the way he said it. You know, and he was-it was my understanding that he was giving me consent, because he really didn’t say too many words the whole time. And that’s just the way he was answering me.

Viewing the testimony above in the light most favorable to the State, we conclude that a doubt exists as to whether Officer Hickson was justified in his belief that Robinson consented to a search. If a doubt exists as to whether the officer was reasonable in concluding that a search was justified, such a doubt must be resolved in favor of the Defendant whose property was searched. Miller v. State, 137 So.2d 21, 25 (Fla.2nd DCA 1962); Taylor v. State, supra. It appears that Robinson did not invite or voluntarily consent to a search, but merely submitted to the apparent authority of a law enforcement officer. This conclusion is further supported by the fact that, at the time Robinson allegedly consented to the search, Officer Hickson was in possession of Robinson’s driver’s license and airline ticket. See, State v. Frost, supra. A distinction is recognized in the law between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Talavera v. State, 186 So.2d 811 (Fla.2nd DCA 1966); Taylor v. State, supra, at 183.

Consequently, we determine that the initial stop of the defendant was not based on a reasonable suspicion of criminal activity. The subsequent search of the defendant’s luggage was presumptively tainted by the impermissible stop. A serious doubt exists as to whether the defendant freely and voluntarily consented to the search, and the State failed to establish by clear and convincing evidence that defendant’s consent to search was sufficiently voluntary so as to dissipate the taint of the illegal stop.

The trial court erred in denying defendant’s motion to suppress the cocaine seized from the defendant’s luggage because it was the fruit of an unreasonable search and seizure and was therefore inadmissible in evidence. Accordingly, the lower court’s order denying defendant’s motion to suppress and the resulting judgment and sentence is reversed, and the cause remanded to the trial court with directions to discharge the defendant.

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

      . Officer Hickson defined the “drug courier profile” analysis at the suppression hearing as follows:
      Q Detective Hickson, what do you mean specifically by a profile? Could you enlighten the Court?
      A There are several that we use. First of all, we observe individuals that are acting-doing things out of the ordinary that an ordinary traveler would not do.
      We observe people at the ticket counter that usually pay for tickets in large-with large amounts of money, or usually buy a one-way ticket. That’s on outgoing flights.
      On incoming flights we usually observe people that appear to act suspicious or may have-do things that ordinary people people don’t do when they come in the airport.
      And, well, we stop people-we look for certain things that individuals have on their possession, such as several identifications, maybe no identification at all, false I.D., and this type thing-that type of a person.

      . The record reveals Officer Hickson did not attempt to have Robinson sign a “Consent to Search” form, apparently because of the presence of another officer. However, the other officer did not testify.


author: PER CURIAM. ANSTEAD, Judge,

text:
    In re the ESTATE of Bernard Israel FISHBINE a/k/a Bert Fishbine, Deceased.
    No. 79-783.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Jerold Hart of the Law Offices of Jerold Hart, North Miami Beach, for appellant Harry Lebow.
    Lawrence Bunin of Bunin & Gossett, Hollywood, for appellee Andrew Cohn, Personal Representative of the Estate of Bernard Israel Fishbine.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal by the plaintiff-appellant from an order dismissing, with prejudice, an amended petition for revocation of probate. His contention is that the lower court erred in dismissing the action as being untimely filed where no proof was adduced of strict compliance by the personal representative with the notice requirements of the probate code. The notice requirements of a statute shortening the time for filing actions for revocation of probate must be strictly followed in order to bar a subsequently filed action. In re Estate of Dalton, 206 So.2d 264 (Fla. 3d DCA 1968). The record fails to reflect that the personal representative followed the statutory scheme for serving the notice of administration upon appellant as set forth in Sections 733.-212 and 731.301, Florida Statutes (1977). Compliance with these sections is necessary to shorten the time for filing actions for revocation. In re Estate of Dalton, supra. The trial court concluded that appellant received notice through service on his attorney. However, there is nothing in the record indicating that appellant had filed any appearance in the proceedings through his attorney at the time of the alleged service. In other words service upon an attorney is only authorized if such attorney has appeared in the cause on behalf of the party. In addition the appellant’s attorney filed a motion in which he alleged that it was only by oversight that he failed to join the appellant as a party petitioner in a petition the attorney earlier filed on behalf of appellant’s brother. Although this may indicate that appellant was aware of the probate proceedings pending and intended to challenge such proceedings, it in no way relieves the personal representative from complying with the notice requirements discussed above. In re Estate of Dalton, supra.

I would reverse the order of dismissal.


text:
    STATE of Florida, Appellant, v. S. H., a child, Appellee.
    No. 79-1689.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, Denise Huard and Pamela M. Burdick, Asst. Public Defenders, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the trial court’s order of dismissal should be affirmed. This is an appeal by the state in a juvenile proceeding from an order which dismissed a petition seeking an adjudication of delinquency. The petition charged as follows:

[S.H.] on the 5th day of April, A.D. 1979, in the County and State aforesaid did unlawfully commit an assault upon Darlene Schultz with a deadly weapon, to-wit: a 1967 Cadillac automobile, without intent to kill, by ramming her automobile and forcing her off the road, contrary to F.S. 784.021.

The statute in question, Section 784.021, Florida Statutes (1979), defines aggravated assault. The appellee moved to dismiss the petition pursuant to Florida Rule of Juvenile Procedure 8.130(b)(2) as being too vague and failing to charge an offense. Specifically, the petition was urged to be deficient in that it failed to allege an essential element of aggravated assault that the victim be in fear of imminent bodily injury. State v. White, 324 So.2d 630 (Fla.1976); and McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980). The state urges it is not necessary that a juvenile petition contain all of the essential elements of the offense charged. The state concedes that fear on the part of the victim was a necessary element to this offense but maintains it was unnecessary to recite it in the petition.

All of the essential elements of the crime charged should be stated in the petition upon which an adjudication of delinquency is sought. See C.B.B. v. State, 315 So.2d 534 (Fla. 4th DCA 1975). This is true of any other charging document in a criminal case. State v. Dye, 346 So.2d 538 (Fla. 1977); Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980); Radford v. State, 360 So.2d 1303 (Fla.2d DCA 1978); Ferrell v. State, 358 So.2d 843 (Fla.3d DCA 1978). But see McClamrock v. State, 374 So.2d 1076 (Fla.2d DCA 1979). I see no reason to approve a different standard for juvenile proceedings in which violations of the penal law are alleged.

The state cites subsection (d) of Rule 8.110 of the Rules of Juvenile Procedure which provides that no petition shall be dismissed due to a defect in form unless “the petition is so vague, indistinct, and indefinite as to mislead the child, his par-entis), or custodian(s) and prejudice him (them) in the preparation of his (their) defense.” However, this provision is virtually identical to Rule 3.140(o), Florida Rule of Criminal Procedure. This is not a case where the defendant is seeking to take advantage of a defect in the state’s pleadings without giving the state an opportunity to replead. In the instant case, the trial court gave the state the opportunity to amend the petition by adding an allegation as to fear on the part of the victim. The state refused to do so and I think the trial court was correct in then dismissing the petition.


author: McCORD, Judge.

text:
    Tom E. GILMAN, Appellant, v. Beverly F. Gilman DOZIER, Appellee.
    No. PP-64.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.
    Rehearing Denied Oct. 20, 1980.

      Tom E. Gilman, in pro. per.
    No Appearance, for appellee.
   McCORD, Judge.

This is an appeal from an order of the trial court adjudging appellant to be in civil contempt of court for his failure to abide by orders of the court directing that he pay arrearages of child support accrued for the period up to his son’s 18th birthday. We reverse.

Appellant makes a three-pronged attack on the contempt order. He contends (1) that since his son has now reached majority (age 18), the trial court lacks jurisdiction to punish appellant for contempt for failure to pay past-due child support, citing Wilkes v. Revels, 245 So.2d 896 (Fla. 1 DCA 1970), (2) that the contempt order cannot stand because the trial judge failed to make an affirmative finding that appellant had the financial ability to pay the support ar-rearage, citing Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976), and (3) that the trial court erred in failing to consider and allow credit to appellant for funds appellee allegedly unlawfully withdrew from the trust funds set aside for the boys (the parties have another son who was not involved in the contempt proceeding). We disagree with appellant’s first and third contentions but agree with his second. According to Faircloth:

a trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

As to the first contention, we agree with the trial court’s findings and conclusions of law which are as follows:

Mr. Gilman has persisted in his argument that this Court cannot punish him for contempt for child support sought by the Mother for an offspring brought after the offspring’s eighteenth birthday even if it is for child support that accumulated prior to the eighteenth birthday. The Court in its independent study of this matter has become aware of the case of Wilkes v. Revels, 245 So.2d 896 (Fla. 1st D.C.A. 1970). At first blush, the Wilkes case appear [sic] to give credence to Mr. Gilman’s position. However, the Court has also discovered the recent case of Burgdorf v. Burgdorf, [372 So.2d 988] 2d D.C.A. 1979. The Burgdorf case discusses the question of the effect of F.S. Section 743.07 (enacted in 1973 and given prospective application from July 1, 1973, forward) in lowering the age of majority from twenty-one to eighteen and found that the statute did not affect dissolu-tions entered prior to the statute. Since in the instant proceeding the dissolution and original child support provisions were entered long before the enactment of F.S. Section 743.07, it would appear from the rationale of the Burgdorf case that where as in this case the Mother seeks child support enforcement for a child not yet twenty-one years of age, contempt is an appropriate method of enforcement. See also: Crumpton v. Crumpton, 333 So.2d 539 (Fla. 1st D.C.A. 1976).

As a part of his first contention, appellant argues that support will not be ordered for a child over 18 years of age in the absence of a finding of dependency, citing this Court’s opinion in Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1 DCA 1976). The ruling in Dwyer, however, has been abrogated by the Supreme Court’s ruling in Finn v. Finn, 312 So.2d 726 (Fla.1975), and this Court’s ruling in Crumpton v. Crumpton, 333 So.2d 539 (Fla. 1st DCA 1976). We approve the following statement of the law as contained in the opinion of the District Court of Appeal, Second District, in Burgdorf v. Burgdorf, 372 So.2d 988 (Fla. 2d DCA 1979):

The law is well settled that a divorce decree entered prior to July 1, 1973, which requires a husband to make child support payments to his wife until the minor child in question becomes sui juris, married or otherwise self-supporting, obligates the husband, on the face of the decree, to make child support payments until the child meets one of those tests. The only method by a which a husband may absolve himself of such obligation of support prior to the child reaching twenty-one is if he files a motion to modify under Section 61.14, Florida Statutes (1977), and is able to prove the child has since become married or self-supporting. This result was in no way changed by Section 743.07, Florida Statutes (1973), lowering the age of majority to eighteen years, because the statute by its expressed terms does not operate retroactively to alter or change child support awards made prior to July 1, 1973, the effective date of this statute. Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Field v. Field, 291 So.2d 654 (Fla. 2d DCA 1974); Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978); Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977).

Appellant has filed no motion to modify under § 61.14, Florida Statutes, but improperly goes outside of the record with a statement in his brief that his son is now in the Air Force and self-supporting. This statement is stricken and disregarded.

As to appellant’s third contention, in an order entered prior to the contempt order, the trial court found the evidence to be inconclusive as to the violations of the trust by either party and that any further dispute as to the trust fund should be determined in a proceeding in which the trustee is a party. We find no error on this point.

Reversed and remanded for further proceedings consistent with this opinion.

MILLS, C. J., and BOOTH, J., concur.


author: SCHWARTZ, Judge.

text:
    Charles D. DEARING, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2222.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 13, 1980.

      Bennett H. Brummer, Public Defender, Stanley M. Newmark, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant below appeals from a conviction and sentence entered upon the revocation of a previously imposed term of probation. We affirm.

On July 13, 1976, after a jury had found him guilty of possession of an explosive without a permit, the trial judge placed Dearing on five years probation with a special condition that he serve six months in the county jail. He posted a supersedeas bond and was released pending his appeal, which resulted in an affirmance of his conviction on August 9, 1977. Dearing v. State, 348 So.2d 1233 (Fla. 3d DCA 1977). Subsequently, however, Dearing pled guilty to a marijuana conspiracy charge in the federal District Court for the Western District of Texas and began serving a sentence for that offense. The federal charge formed the only basis for the revocation of his probation in the lower court.

On this appeal, Dearing first contends that the evidence was insufficient to demonstrate that he had in fact violated a term of his probation. It is, of course, conceded that probation may be revoked solely on the basis of a conviction for criminal conduct which occurred during the probationary term. E. g., Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977). Dearing contends, however, that there was no such showing below. We disagree. The Texas federal indictment alleged a conspiracy continuing between 1975 and November 14, 1977. One of the overt acts in furtherance of the conspiracy of which Dearing was specifically accused was “[t]hat on or about June 2,1977 [subsequent to his being placed on probation], . . . Dearing attempted to fly a quantity of marijuana from the Republic of Mexico into the United States.” By pleading guilty to this charge, the defendant admitted and it was therefore conclusively established that he had committed a criminal act after his term of probation had begun. Robinson v. State, 373 So.2d 898 (Fla.1979); Williams v. United States, 443 F.2d 1151 (5th Cir. 1971). This case is therefore entirely distinguishable from Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977), upon which Dearing heavily relies. Compare also, O’Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). In Demchak, the defendant had been found guilty only of a conspiracy which, like the one involved here, allegedly spanned a period both before and after he had been placed on probation. In decisive contrast to our situation, however, there was no further specific evidence that the defendant had engaged in any unlawful conduct after the term had commenced.

Dearing also claims that the trial judge improperly required him, over his self-incrimination objection, to testify at the revocation hearing that he was indeed the person who had pled guilty to the federal charges. On this point, he relies upon the statement in State v. Heath, 343 So.2d 13, 16 (Fla.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977), that, while a probationer must respond to questions dealing with his proper supervision, “the Fifth Amendment privilege against self — incrimination must be applicable to specific conduct and circumstances concerning a separate criminal offense.” Again, we reject this contention. The situation to which the supreme court obviously referred in Heath was the one in which, as in Heath and Douglas v. State, 376 So.2d 11 (Fla. 2d DCA 1979), the defendant is charged with violating his probation because of a criminal offense for which he is being or could be independently prosecuted. In such an instance, as the court properly held in Douglas, the probationer is entitled to the privilege which precludes his providing evidence as to that charge against himself. It is well-settled, however, that the privilege no longer exists as to alleged crimes for which the witness could not be subsequently prosecuted, as when he had, as in this case, previously pled guilty and been sentenced for the offense in question. Rein a v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960); In re Liddy, 506 F.2d 1293, 1300 (D.C.Cir.1974); United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). Moreover, the mere fact that one’s truthful answers to a particular question would result in a revocation of his probation does not alone implicate the fifth amendment privilege. Heath v. State, supra; Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Putting the two principles together, it follows that Dearing was correctly required to admit that he had pled guilty to, and thus that he had committed an offense which occurred during his probation. Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969) squarely so holds. In that case, the defendant had pled nolo to a charge of taking indecent liberties with a child, which took place while he was on probation. In the appeal from an order of revocation,

Holdren contends finally that he was denied the privilege against self-incrimination when, over the objection of counsel, the court asked him if he had been drinking and if he had two boys with him. To both questions, Holdren replied ‘yes.’ The privilege against self-incrimination would have been applicable had Holdren been charged with a new crime. Here the issue of guilt upon which the sentence issued had already been determined by his earlier plea. Holdren’s testimony, moreover merely corroborates what the probation officer had already told the court. No authority has been cited for the rule which Holdren would have us adopt. We find no error. 452 P.2d at 30.

See also, Douglas v. State, supra, at 376 So.2d 13 (“The questions appellant refused to answer involved a separate criminal offense with which appellant, not having been convicted thereof and not having been granted immunity, could have been charged. He retained his right to refuse to answer such questions, and his probation could not be revoked for exercising this right.” [e. s.]); Tempo Trucking and Transfer Corp. v. Dickson, 405 F.Supp. 506, 520 (E.D.N.Y.1975) (no privilege in license revocation proceeding to decline to answer questions concerning prior offense to which defendant had pled guilty, although testimony could result in. loss of license); cf. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977) (no such privilege as to compelled testimony in response to IRS summons).

This court has recently rejected Dearing’s final contention that the trial court may not revoke a term of probation for a violation which occurred while the order was validly superseded. Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).

Affirmed.

      . There is no doubt that this conduct constituted a violation of the federal narcotics laws. 21 U.S.C. §§ 952(a), 963, even if it occurred entirely outside the boundaries of the United States. United States v. Brown, 549 F.2d 954 (4th Cir. 1977), cert. denied, 430 U.S. 949, 97 S.Ct. 1590, 51 L.Ed.2d 798 (1977); United States v. Vicars, 467 F.2d 452 (5th Cir. 1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702 (1973).


author: PER CURIAM. NESBITT, Judge

text:
    J. Arthur HAWKESWORTH, Jr., Individually and E. James Schmick, Individually, and Hawkesworth & Schmick, a partnership organized for the practice of law in Dade County, Florida, Appellants, v. Ronald PONZOLI et al., Appellees.
    No. 79-1173.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 20, 1980.

      Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin and Larry S. Stewart, Miami, for appellants.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal by defendants below from the final judgment entered in the Circuit Court for Dade County wherein the property rights of the parties were determined in a suit incident to the dissolution of their law firm. The dispute centers upon the expenses relating to appellants’ prior relationships with other law firms. Appel-lees declared their unwillingness to pay for any part of appellants’ earlier involvement in other law firms and sought relief.

In January, 1976, appellants Hawkes-worth and Schmick promoted appellees Ponzoli and Wassenberg from associates to junior partners, and granted them a combined thirty-four percent interest in the assets of the new partnership. This latest partnership became a fourth legal entity, Hawkesworth, Schmick, Ponzoli & Wassen-berg (hereinafter HSP & W) which co-existed in that office with the firms (newest to oldest) of Hawkesworth & Schmick, Hawkesworth, Kay & Schmick, and Hawkesworth & Kay. These (dissolved) firms were in various stages of “winding up”, i.e., a resolution of the legal matters which constitute the assets of each partnership.

Upon the February, 1978 de facto dissolution of HSP & W, the latter two attorneys moved into new offices and commenced practicing under the firm name of Ponzoli & Wassenberg. In parting, they took with them two hundred files from the old firm. They have serviced them along with the files of Ponzoli & Wassenberg, without separate accounting procedures. Similarly, Hawkesworth and Schmick joined (again), became Hawkesworth & Schmick, and accumulated new files. However, under the split custody arrangement, they retained approximately three hundred files of HSP & W and have serviced them with their other files, which bear various names according to the firm which produced them.

When the former partners met for the first pooling of their ¿ssets and distribution of profits, a dispute arose, ultimately the object of this appeal, concerning the allocation of overhead generated in the production of the partnership’s post-dissolution income. Appellants wanted to apportion their total overhead expenses, as a deduction from the net sum attributable to each office engaged in the “winding up” process, based on the percentage of the firm’s total income generated in each office. Appel-lees, on the other hand, wanted each office to absorb its own overhead, and take its percentage of the unreduced combined fee income. The trial court opted for the latter alternative, possibly in light of the failure of both parties to keep records which would have disclosed the hourly expenditures made on files from which an overhead-per-file ratio could have been formulated.

Appellants complain that, by the court’s adoption of appellees’ formula, appellants are denied the sixty-six percent interest in the firm’s income which they contracted for: Although they receive two-thirds of the pre-overhead income of the firm, they pay a disproportionately high share of the total overhead.

Unfortunately, appellants’ proposal is as arbitrary as is appellees: They seek to extract from appellees’ share of profits a reimbursement for overhead expenses of firms in which appellees have no financial interest. Such compensation to appellants would violate the requirement that partners of a dissolved law firm fulfill the partnership’s obligations without additional compensation. Kreutzer v. Wallace, 342 So.2d 981 (Fla.3d DCA) cert. denied 353 So.2d 680 (Fla.1977); Frates v. Nichols, 167 So.2d 77 (Fla.3d DCA 1964).

We affirm the result reached by the trial court, because, although it seemingly discriminates against appellants, it appears to reach an equitable result. The various firms being operated in appellants’ offices share the same light and the same space as does HSP & W, and should share ratably in their cost. Moreover, relative inefficiencies (so-called “diseconomies of scale”) which the smaller firms must suffer tend to depress the income-per-unit-of — overhead ratio enjoyed by HSP & W; appellants should bear this additional cost. Given the unwillingness of the parties to keep hourly ti-mesheets by which to accurately apportion costs, we see no reason to disturb a result which seems as equitable as any more theoretically justifiable system we might fashion.

We have considered the other points on appeal, and find them to be without merit.

Affirmed.

NESBITT, Judge

(dissenting):

I dissent. It is the general rule that, in a partnership dissolution, expenses incurred during the partnership must be reimbursed prior to distribution of net profits. § 620.-745(1), Fla.Stat. (1979); § 620.755, Fla.Stat. (1979); Lichenstein v. Murphree, 9 Ala.App. 108, 62 So. 444 (1913); Casey v. Hurley, 115 Conn. 341, 161 A. 518 (1932); Geist v. Burnstine, 19 N.Y.S.2d 76 (Sup.Ct.1940); Sandberg v. Scougale, 75 Wash. 313, 134 P. 1051 (1913); 68 C.J.S. Partnerships § 395.

It is equally well settled that, upon dissolution of a partnership where the partners have no dissolution agreement, the assets of the partnership are to be distributed according to the methods and ratios provided in the original agreement under which the parties operated prior to dissolution. Cohen v. Lansburgh, 366 So.2d 154, 156 (Fla.3d DCA 1979).

Applying these principles to the admitted facts makes it apparent that the appellees have obtained a windfall in the name of equity. The failure of parties to keep time records may make the rendering of an accounting more difficult, but it does not render it impossible. When men of affairs make a bargain, they should abide by it absent extraordinary or compelling reasons which are not presented here.

I cannot agree that “the other points on appeal” are without merit. Although the amount of money involved is miniscule, the failure to award proper credit for fixed assets is contrary to the manifest weight of the evidence. Moreover, the failure to award Hawkesworth personal credit for personal loans made by him is contrary to the undisputed evidence.

      . Costs directly traceable to particular files are not at issue; these are deducted from the income each file is said to produce. Rather, the issue relates to indirectly attributable (non-traceable) expenses, such as office salaries, rent, and library costs.

      . That is, if Hawkesworth and Schmick generated $70,000 of the $100,000 (hypothetical) income produced by the firm, they would deduct seventy percent of their total office overhead from that figure, to arrive at a “net” figure, of which, combined with the net figure similarly obtained in the Ponzoli-Wassenberg operation, Hawkesworth and Schmick would take sixty-six percent, under the terms of the partnership agreement.

      . Appellees’ overhead is roughly one-eighth that of appellants, on a per-case basis.


author: DANIEL S. PEARSON, Judge.

text:
    In re the Matter of ADOPTION of John Steven COTTRILL. Nancy COLLINS, Appellant, v. Mary Elsie COTTRILL, Appellee.
    No. 79-2258.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Leonard Frishman, Coral Gables, and Bruce M. Boiko, Miami, for appellant.
    Howard L. Kuker, Miami, for appellee.

      Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We hold that the trial court’s finding that Nancy Collins abandoned her child is not supported by clear and convincing evidence, see, e. g., Solomon v. McLucas, 382 So.2d 339 (Fla.2d DCA 1980), and accordingly, reverse the trial court’s order granting Mary Cottrill’s petition for adoption.

A decree of adoption results in permanent deprivation of parental rights. Because of the finality which attaches to adoption, the legislature has seen fit to authorize it only upon the giving of appropriate consents, Section 63.062, Florida Statutes (1977), or under circumstances where it can be said that the conduct or condition of the parent obviates the necessity of consent, Section 63.072, Florida Statutes (1977). One of the bases, and the only one pertinent here, upon which a court may consider that consent to adoption has been waived is when the parent has abandoned the child. § 63.072(1), Fla.Stat. (1977).

At the outset we make clear that the custody of the child, which from this record quite clearly was properly awarded to Mary Cottrill, is unaffected by our decision. Presumably, custody will remain unchanged until Nancy Collins can demonstrate her fitness to properly care for her child and that it will be in the child’s best interests to return him to her custody. We also make clear that this is not a proceeding for the permanent commitment of the child under Chapter 39, Florida Statutes (1977), which, as this court has recently held, contains a less stringent test for abandonment and has objectives far different than an adoption proceeding under Chapter 63, Florida Statutes (1977). See In Interest of J. F. (Fla.3d DCA 1980) (Case No. 79-1223, opinion filed June 3,1980).

When Johnny Collins, the child, was ten years old, his mother, plagued by a chronic drinking problem, became ill, bedridden and unable to properly care for him. It was at this point that Mary Cottrill, a nurse who was needed in the Collins home, first took an interest in Johnny. Mrs. Collins was hospitalized and voluntarily placed Johnny at a youth ranch. Later that year, 1977, Johnny, with Mrs. Collins’ consent, was adjudicated dependent. He was placed in the custody of Mary Cottrill.

Ms. Cottrill does not contest the fact that Mrs. Collins continued to evince interest in her child. Mrs. Collins repeatedly and unsuccessfully sought to regain custody of Johnny through proceedings in the juvenile court and attended several hearings for that purpose. She called Johnny on the phone until Ms. Cottrill acquired a new and unlisted number, which she admittedly did not disclose to Mrs. Collins. Johnny’s mother sent him letters, toys and clothing, and birthday and Christmas cards and gifts. On a number of occasions she had dinner with Johnny at her house. For several months Mrs. Collins and Johnny attended counselling sessions with a psychologist. By Ms. Cottrill’s admission, at no time did Mrs. Collins give any indication that she wanted to relinquish permanent custody of Johnny or have him adopted by another.

These facts notwithstanding, Ms. Cottrill says that the order of adoption is warranted for the reasons that Mrs. Collins was not the victim of an unfortunate illness, but rather brought it upon herself with a chronic drinking problem, which even in 1979 was not totally cured; that Mrs. Collins’ estranged husband, who, all admit, did nothing to care for Johnny, stated it would be in the child’s best interests to be adopted by Ms. Cottrill; that Johnny expressed his love for and desire to remain with and be adopted by Ms. Cottrill; that as a result of being with Ms. Cottrill, Johnny had changed from withdrawn and fearful to being friendly and secure; that it was suggested that some of the negative experiences of the past were so strong that visitation with Mrs. Collins should only be done with the consent of the child’s therapist; that Mrs. Collins had previously consented to an adjudication of dependency; that Mrs. Collins’ home environment was not suitable as a residence for Johnny, and she was poorly equipped, emotionally and physically, to provide for Johnny; and, finally, that the Florida Department of Health and Rehabilitative Services recommended that it would be in the best interests of Johnny to be adopted by Ms. Cottrill.

It is clear that the trial court was perfectly justified in finding that Johnny was thriving with Ms. Cottrill and that it was in his best interests to remain in her custody. The best interests of the child are not, however, a factor which will obviate the necessity of consent to adoption, Solomon v. McLucas, supra, and by the same reasoning not a factor that will obviate the necessity of proof of abandonment where consent is not forthcoming. As Judge Danahy stated in his opinion in Solomon v. McLucas, supra, at 343:

“We are aware of the concerns expressed by Judge Mills in his specially concurring opinion in Nelson v. Herndon, [371 So.2d 140 (Fla. 1st DCA 1979)], and recognize that, on the face of the matter, it would appear that the legislature was remiss in not considering the best interests of the child as the sole determinative basis for an adoption. But it must be remembered that Chapter 63 relates only to adoption, not custody. Permitting the adoption of a child terminates the rights of a natural parent, and should not be ordered without parental consent where that consent is otherwise required except upon a showing that the natural parent has engaged in conduct which justifies the termination of that parent’s rights with respect to the child. The legislature has specified in Section 63.072(1) that such conduct must amount to a desertion without affording means of identification or an abandonment. We point out, however, that the denial of a petition for adoption on the ground that abandonment has not been shown does not determine the matter of custody. Custody traditionally has been taken from natural parents and placed in others whenever the parents’ neglect or abuse makes that action necessary for the best interests of the child. Section 39.-01(9) and Sections 39.40, et seq., Florida Statutes (Supp.Í978). But grounds which may legally justify depriving a natural parent of custody do not necessarily constitute grounds for severing the parental relationship permanently by allowing adoption of the child by others. Wiggins v. Rolls, 100 So.2d 414 (Fla.1958).”

The expressed preference by a child to be adopted by another similarly does not dispense with the need for the parent’s consent or its functional equivalent, proof of abandonment. The recommendation of the Department of Health and Rehabilitative Services, and, a fortiori, the recommendation of an uninterested father, does not justify an order of adoption. Solomon v. McLucas, supra; Matter of Adoption of No ble, 349 So.2d 1215 (Fla. 4th DCA 1977). Neither the prior dependency adjudication nor Mrs. Collins’ derelictions serve as a basis for this permanent step. In re Adoption of Lewis, 340 So.2d 126 (Fla. 1st DCA 1976). In a word, nothing but evidence of abandonment by the parent will suffice, and such evidence is completely lacking here. Indeed, the evidence of Mrs. Collins’ continued interest in and affection for the child is undisputed. On much stronger showings of a parent’s disinterest in the child, courts have refused to find abandonment. See, e. g., Durden v. Henry, 343 So.2d 1361 (Fla. 1st DCA 1977); In re Adoption of Gossett, 277 So.2d 832 (Fla. 1st DCA 1973).

Cottrill relies on three cases, Watson v. Watson, 330 So.2d 848 (Fla.3d DCA 1976); In re Adoption of Layton, 196 So.2d 784 (Fla.3d DCA 1967); and In re Adoption of Corcuera, 145 So.2d 493 (Fla. 1st DCA 1962), to support her position that the evidence of abandonment was sufficient to justify the trial court’s ruling. Layton and Corcuera both involved extreme infrequency of contact over a prolonged period of years from which abandonment was inferred, and are thus inapposite. In Watson, the recitation of facts is sparse. To the extent that these cases suggest that the best interests of the child are paramount in adoption proceedings and where demonstrated may justify an adoption award without regard to abandonment, we specifically recede from Watson and Layton and decline to follow Corcuera. We also recede from the statement in Watson that the mother’s engagement in illegal activities which culminated in a nine-month prison term, being a voluntary act on her part, would “necessarily have to be considered as abandonment or a lack of sufficient concern for her obligation as a parent.” Incarceration, or in the present case, illness brought on by a drinking problem, does not, ipso facto, constitute abandonment even though the acts leading to the incarceration may be voluntary. See Harden v. Thomas, 329 So.2d 389 (Fla. 1st DCA 1976) (holding that the imprisonment of a parent under a lifetime sentence does not, as a matter of law, constitute abandonment of his child). Accord, Turner v. Adoption of Turner, 352 So.2d 957 (Fla. 1st DCA 1977). A collateral consequence of a sentence of imprisonment or the illness of alcoholism is simply not the permanent forfeiture of one’s child.

Reversed.

      . Nancy Collins adopted the child in 1967. That act in effect made her the natural parent of the child, Section 63.172(1)(c), Florida Statutes (1977), and a further adoption required her consent or, in this case, proof that she abandoned the child. Cf. Vreeland v. Vreeland, 296 S.W.2d 55 (Mo. 1956); In re Macrae, 189 N.Y. 142, 81 N.E. 956 (1907).

      . Section 63.172(1), Florida Statutes (1977), sets forth the legal effects of a judgment of adoption. The impact is most dramatically expressed in Section 63.127(l)(b), Florida Statutes (1977), which states that a judgment of adoption “terminates' all legal relationships between the adopted person and his relatives, including his natural parents, ... so that the adopted person thereafter is a stranger to his former relatives for all purposes, . . . ” (emphasis supplied).

      . Mr. Collins did not, however, execute a formal consent.

      . In light of the Second District’s decision in Solomon v. McLucas, Cottrill can no longer take comfort in Jones v. Allen, 277 So.2d 599 (Fla.2d DCA 1973), in which the court said that a showing of abandonment was not required where there is clear and convincing evidence that adoption would be in the best interests of the child. See also Matter of Adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977), expressly declining to follow Jones v. Allen.

      .A minor over the age of twelve must consent to his or her adoption unless the court finds that the best interest of the child makes the child’s consent unnecessary, § 63.062, Fla.Stat. (1977). This, however, is in addition to, not in replacement of, the parents’ consent.

      . Layton and Corcuera were, of course, decided prior to enactment of Chapter 73-159, Laws of Florida. Before then, the required showing for adoption was that the adoptive parents were fit and proper, that the best interests of the child would be promoted, and that the child was suitable for adoption. See In re Adoption by Cooper, 242 So.2d 196 (Fla. 1st DCA 1970). Before 1973, abandonment and the inability to locate a parent would excuse a lack of notice, but were not a required showing for adoption. See Fielding v. Highsmith, 152 Fla. 837, 13 So.2d 208 (1943).


author: NESBITT, Judge.

text:
    William A. INGRAHAM, Jr., P.A., Zyne & Wehby, P. A., on behalf of themselves and other similarly situated, Appellants, v. CITY OF MIAMI, Florida, Appellee.
    No. 79-2281.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 7, 1980.

      Bertram A. Sapurstein, Miami, for appellants.
    George F. Knox, Jr., City Atty., and Mik-ele Carter, Asst. City Atty., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The issue before us is whether the City of Miami had authority to impose an occupational license tax against an individual licensed attorney for the year 1976 and subsequent years and additional authority to levy an occupational license tax against the professional association, of which the attorney was also a member. We find that it did and affirm the summary judgment entered against the individual professional associations as well as all others within the class similarly situated.

We begin our review by observing that Article VII, Section 1(a) of the Florida Constitution provides:

No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law.

Article VII, Section 9(a) of the Florida Constitution addresses local taxation generally by providing:

Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this Constitution.

We acknowledge that our Supreme Court has construed these similar provisions to hold that, except for an ad valorem tax, a municipal tax which is not authorized by general law is unconstitutional. City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1, 3 (Fla.1972).

We also have no difficulty construing Section 205.042, Florida Statutes (1975) to authorize a municipality, by an appropriate ordinance or resolution, to levy an occupational license tax for engaging in any business, profession, or occupation within its jurisdiction. Similarly, we find that Section 205.022(3), Florida Statutes (1975), defines a “person” to mean either an “individual” or “corporation.” When the cited statutes are construed in pari materia with the definitional section of the Professional Service Corporation Act, specifically, Section 621.03(2), Florida Statutes (1975), which provides that:

The term “professional corporation” means a corporation which is organized under this act for the sole and specific purpose of rendering professional service and which has as its shareholders only individuals who themselves are duly licensed or otherwise legally authorized within this state to render the same professional service as the corporation,

it is clear that professional corporations are within the occupational license framework enunciated by these statutes.

Even appellants concede that the Legislature may validly impose an occupational tax on both the individual shareholder as well as the corporation of which he is a part. The mere fact that one may fall into multiple classifications, upon each of which the governmental entity may impose a tax, does not by itself, invalidate the tax imposed on any one of those classifications. Smith v. City of Miami, 160 Fla. 306, 34 So.2d 544 (1948); Bentley-Gray Dry Goods Co. v. City of Tampa, 137 Fla. 641, 188 So. 758 (1939).

The only remaining question then is whether the City of Miami had, by ordinance or resolution, duly implemented the aforementioned statutory authority to impose an occupational license tax against a professional corporation contemplated by Chapter 621, Florida Statutes (1975).

Under the express provisions of Article III, Section 30-28 A of the Code of the City of Miami, the city specifically imposed an occupational license tax against individual attorneys. Under the “catch-all” phrase of the cited ordinance, an occupational license tax was imposed against the following categories:

Every business, occupation, profession or exhibition, substantial, fixed or temporary, engaged in by any person whether in a building or tent, or upon the street, vacant lot, or anywhere in the open air in the city, not herein specifically designated, shall pay a license fee of. $47.00. [emphasis added]

The code did not specifically enumerate an occupational license tax against a professional corporation because professional corporations were not specifically designated. Although we recognize the authority to impose taxes must be strictly construed in favor of the taxpayer and against the taxing authority, Lambert v. Mullin, 83 So.2d 601 (Fla.1955), we have no difficulty in arriving at the conclusion that, under the plain and ordinary construction of the “catch-all” section, the city’s design and purpose have been sufficiently evinced so as to warrant the imposition of an occupational license tax against professional legal corporations in addition to a tax imposed against individual attorneys at law. The “logical and practical intent should be ascribed to every legislative act . . . [a]nd the manifest intent of the legislature will prevail over any literal import of words used by it.” George v. State, 203 So.2d 173, 176 (Fla.2d DCA 1967).

We note in passing that appellants brought this suit as a class action for all professional associations similarly situated. A contrary holding to the one we issue today, that Section 30-28 of the Code of the City of Miami as it appeared prior to the amendment, validly imposed an occupational tax on the members of the class, would only have entitled those professional associations who had paid an occupational license tax for the year 1976 and had protested such payment, to have those fees returned. Willig v. Blake, 358 So.2d 871 (Fla.3d DCA 1978).

For the above stated reasons, the judgment of the trial court is hereby affirmed.

      .205.042 Levy; municipalities.-The governing body of an incorporated municipality may levy, by appropriate resolution or ordinance, an occupational license tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction.

      (2) Any person who maintains a permanent business location or branch office within said municipality, for the privilege of engaging in or managing any profession or occupation within its jurisdiction.

      . “Person” means any individual, firm, partnership, joint adventure, syndicate, or other group or combination acting as a unit, association, corporation, estate, trust, business trust, trustee, executor, administrator, receiver, or other fiduciary, and shall include the plural as well as the singular.

      . On July 28, 1977, following institution of this controversy, the City Commission of the City of Miami, by Ordinance No. 8678, amended Section 30-28, supra, to specifically designate professional corporations and thereby subject them to an occupational license tax.

      . See n. 3, supra.


text:
    The STATE of Florida, Appellant, v. Johnny ANDERS, Appellee.
    No. 80-401.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 14, 1980.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

After the state had been granted a continuance, Anders’ burglary case was called for trial again. On that occasion the prosecution stated that it was neither ready nor anticipated being so within the near future. By failing to take a nolle prosse, and explicitly declining to move for another continuance-either of which would have maintained some life in the case-the state clearly invited the court to administer the coup de grace. The trial judge accepted the invitation and complied. He dismissed the case for lack of prosecution and ordered the defendant discharged.

The circumstances under which the dismissal was granted and the words employed by the trial court provided a “clearly identifiable manifestation that [it] intended [the dismissal to be with prejudice].” State v. Schafer, 376 So.2d 927, 929 (Fla.2d DCA 1979). It was consequently perfectly correct in entering the order now under review which dismissed, this time explicitly with prejudice, a new information which the state, having thought better of its earlier representations to the court, filed the very next day. See, State v. Schafter, supra, in which the court indicated at 376 So.2d 928 that the state may not refile an information if barred “by a previous final order of dismissal with prejudice.” Compare, State v. Bacon, 385 So.2d 1160 (Fla.2d DCA 1980) (earlier dismissal “without prejudice”); State v. Wells, 277 So.2d 543 (Fla.3d DCA 1973) (no indication that earlier dismissal was with prejudice).

Affirmed.

      . The entire colloquy is set out below.
      THE COURT: Okay. The bottom of 143, Johnny Anders.
      MS. HOAGUE [assistant state attorney]: Your Honor, the State is not ready.
      THE COURT: Is Johnny Anders here?
      MS. HOAGUE: Yes.
      THE COURT: You are Johnny Anders?
      THE DEFENDANT: Yes.
      MR. WHITE [defense counsel]: Your Hon- or, on behalf of the defendant, we would ask the case be dismissed on Jack of prosecution.
      MS. HOAGUE: The state does not anticipate being ready in the near future. We have not had-

        THE COURT: You are not ready, and you do not anticipate being ready?
      MS. HOAGUE: The State would not be requesting a continuance at this time.
      MR. WHITE: We move it to be dismissed, your Honor, for lack of prosecution.
      THE COURT: Case is dismissed. Lack of prosecution. The defendant is discharged.
      (Thereupon, the proceedings were concluded.)

      . If the trial judge had determined to go forward with a “trial” for which the state was not prepared, and had ordered a jury or a witness sworn, refiling would have been precluded on double jeopardy grounds. While the state’s acquiescence to a dismissal instead should be viewed, therefore, as no more than a commendable effort to save the court’s time, the end result should not be different.

      . Although the propriety of the first dismissal is not specifically be fore us in this proceeding, we observe both that the court was authorized to dismiss the case with prejudice on the ground that the prosecution had been abandoned, see. State v. Alvarez, 258 So.2d 24 (Fla.3d DCA 1972), and that the state would be barred by the invited error rule from asserting otherwise. 3 Fla.Jur.2d Appellate Review § 294 (1978). It is hardly acceptable, therefore, to permit the state to accomplish indirectly in this appeal from the later dismissal, what it could not achieve directly by challenging the first one.

      .Perhaps this case may be cited for the proposition that the “gotcha!” doctrine applies not only to criminal, as well as civil cases, State v. Belien, 379 So.2d 446 (Fla.3d DCA 1980), but to the prosecution as well as the defense. See also, State v. Weir, 380 So.2d 1297 (Fla.3d DCA 1980), rev. denied (Fla. 1980).