text:
    ROSALIND HOLDING COMPANY, etc., Appellant, v. The ORLANDO UTILITIES COMMISSION, et al., Appellee.
    Nos. 79-1298/T4-596; 80-9.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 11, 1981.

      Stephen P. Kanar, Winter Park and Charles Evans Davis of Fishback, Davis, Dominick & Bennett, Orlando, for appellant.
    J. Thomas Gurney, Leon Handley and Thomas B. Tart of Gurney, Gurney & Handley, P.A., Orlando, for appellee, Orlando Utilities Commission.
    Richard W. Bates and Gray, Adams, Harris & Robinson, Orlando, for appellee, Orange County.
    Robert L. Hamilton, Orlando, for appel-lee, The City of Orlando.
   SHARP, Judge.

Rosalind Holding Company appeals from a final judgment denying it any relief in its class action suit against the Orlando Utilities Commission and the City of Orlando. The lower court held that Rosalind failed to prove the utility rates charged by the OUC for the years 1970 through 1978 were unreasonable and confiscatory. The court assessed Rosalind with taxable costs of $8,624.67, which Rosalind also appeals. After an extensive review of the record in this case, we affirm the lower court on both grounds.

The OUC was created in 1923 by a special act of the legislature, Chapter 9861, Laws of Florida (1923), as a part of the City of Orlando. Its purpose is to operate and manage the City’s electrical and water utilities both inside and outside the boundaries of the City. The Commission is empowered to set the utility rates, and the City is required to pay for any OUC utilities it uses. During the period 1970 through June 1974, Florida excluded municipally owned utilities from regulation by the Florida Public Service Commission (PSC). Effective July 1, 1974, section 366.04(2), Florida Statutes, was added to give the PSC power over municipal electric utilities... “(b) [t]o prescribe a rate structure for all electric utilities ... and (f) [t]o prescribe and require the filing of periodic reports and other data as may be reasonably available and as necessary to exercise its jurisdiction.” Since 1978 the OUC has filed its reports with the PSC, but as yet no regulations concerning rate structure have been promulgated by the PSC.

In contrast to a public service commission, which is designed to regulate and set reasonable rates for utilities and require certain methods of calculating reasonable rates, the courts have a much more limited function. Setting rates and methods to calculate them is a legislative function, whether it is done by a public service commission or the OUC board. A person seeking to attack in the courts the rates charged by a utility has the burden of showing that the rates are outside or beyond the “zone of reasonableness,” as established by the evidence, and not necessarily by the PSC, so as to be confiscatory or discriminatory. Absent a controlling statute, a municipal utility, like any other utility, is entitled to earn a reasonable rate of return on its capital and its rates may be set so that it earns a rate of return on its equity comparable to other similar businesses.

Rosalind argued that certain payments made by the OUC to Orange County “in lieu of taxes” and payments in the nature of franchise fees paid by the OUC to the City of Orlando were improper operating expenses, and if disallowed as operating expenses, the results would substantially increase the OUC’s income, and therefore its rate of return on capital, far above what other municipal utilities and private utilities are allowed to earn. Rosalind also argued that the OUC should not have been allowed to set its rates so as to earn as high a return on its equity as an investor-owned utility. The OUC argues that these matters relate to the method of calculating rates and not to the reasonableness of the rates themselves. Obviously the method of calculating rates impacts on their reasonableness, and it is a proper subject for judicial review. We shall consider each point raised by Rosalind separately.

I. “IN LIEU OF TAX” PAYMENTS MADE BY ORLANDO UTILITIES COMMISSION TO ORANGE COUNTY.

The record established that the OUC made payments totaling approximately $1,114,000 to Orange County from 1973 through 1978. The amount of each annual payment was based on 1% of the retail sales of electricity to the OUC’s customers outside the City of Orlando, but within Orange County. Witnesses for the OUC testified that these payments were somewhat less than a private utility would have paid Orange County for ad valorem taxes based on the value of OUC's property located within Orange County, and that the payments were for police and fire protection and other services afforded the utility by the County-

Rosalind argued that the City’s property could not legally be taxed by the County absent a general statute, which does not now exist, that the amount paid to Orange County was not a valid obligation of the OUC, but rather was a “gift”, and therefore it should not serve to reduce the OUC’s income by allowing the utility to treat it as an operating expense.

Expert witnesses for the OUC testified that it was not an uncommon practice in other states for tax exempt utilities to make “tax-equivalent” payments to local governmental bodies providing them with valuable services. Failure to make such payments would have the effect of discriminating against the county taxpayers because they presumably would have to pay through higher taxes for the free services received by the utility.

We have found no controlling precedent in Florida on this point. In some jurisdictions, such payments are not allowed. However, the PSC has approved the payment of “reasonable” charitable contributions by regulated utilities and the inclusion of these amounts in operating expenses of the utility for purposes of calculating reasonable rates. The allowance or disallowance of such “in lieu of tax” payments as operating expenses for purposes of determining the rate structure or rate base of a utility is a matter more appropriate for determination by the PSC than the courts where the payments (as in this case) are reasonable in amount for the purpose intended, are actually made, and are made pursuant to a reasonable ground or basis.

We conclude that Rosalind failed to establish that the OUC’s inclusion of the “in lieu of tax” payments to Orange County as an operating expense was arbitrary or unreasonable.

II. “FRANCHISE” PAYMENTS MADE BY OUC TO THE CITY OF ORLANDO.

The record showed that since 1970, the OUC has been paying to the City of Orlando substantial annual payments labeled “franchise-equivalent” fee. The OUC pays the franchise fee to Orlando in addition to profits earned by the OUC. For example, in 1973, $1,442,561 was paid to the City of Orlando as a franchise fee and the OUC also paid the City $5,542,000 in profits. The OUC keeps as retained earnings about as much as it pays Orlando in profits.

The OUC shows the franchise fee as an operating expense, which reduces its net operating income. However, there is no franchise agreement between the City and the OUC. Further, the OUC witnesses admitted that the franchise fee was treated as additional income on the OUC’s reports filed with the Federal Power Commission and on its official bond statements, and that these funds would be available to pay bonds or other “real” operating expenses if needed.

Rosalind argues that the OUC’s treatment of the franchise fee as an operating expense is an improper method to mask additional profits. Since the OUC is in actuality part of the City of Orlando, no payment to a third party is possible. It is merely a transfer of funds from one pocket to another. We agree that the franchise fee should be considered as additional OUC profit. See City of Logansport v. Public Serv. Comm’n of Ind., 202 Ind. 523, 177 N.E. 249, 76 A.L.R. 838 (1931).

However, assuming the franchise fee constitutes additional profits to the OUC, and should in fact be treated as such, this does not, by itself, establish that the OUC’s rates are unreasonable. Municipal utilities in Florida are entitled to earn a profit on their utilities operations, and some municipalities in Florida take a higher percentage of the utility’s profit into general revenues than Orlando does, even including the franchise-equivalent payment.

No witness testified that the OUC was earning an excessive amount of profit on its operations. Further, the one expert witness for Rosalind was not allowed to testify that the OUC’s rates were unreasonably high, and he admitted he was not qualified to so testify. The OUC’s expert witnesses all testified the OUC’s rates were reasonable. We conclude that Rosalind failed to establish by a preponderance of the evidence that the OUC was earning an excessive profit, or that its rates were unreasonably high for the years in issue. See Killion v. City of Paris, 192 Tenn. 446, 241 S.W.2d 524 (1951).

III. WAS THE 13.5% RATE OF RETURN ON EQUITY USED BY ORLANDO UTILITIES COMMISSION IN SETTING ITS RATES SHOWN TO BE UNREASONABLE AND ARBITRARY?

The record showed that the OUC used the rate of 13.5% in calculating the needed rate of return on equity in setting its rates for the years in question. The testimony established that the rate of return among investor-owned Florida utilities from 1972 to 1977 ranged from 12.75% to 16.35%, and that the PSC had established from 13% to 15% as a “reasonable” zone. Both appellant and appellees agree that a utility should be allowed to earn a reasonable rate of return on its equity, but they disagree what industry earnings standard should be applied.

Rosalind argued that because the OUC is a city-owned utility, the court should not consider the rate of return on equity allowed to privately owned utilities. Some states’ public service commissions do not allow municipal utilities to receive as high a rate of return as a private utility because they pay no taxes, are able to raise funds through bonds at lower interest rates, and their “stockholders,” or cities who take their profits, pay no taxes either. Rosalind showed that the average rate of return on equity for municipal utilities, as shown in a 1973 Federal Power Commission Report, was only 8.1%. The expert witness for Rosalind also testified that a municipal utility should not earn a rate of return on equity higher than 6% to 9%, and that OUC’s calculations based on 13.5 would make its rates unreasonable.

However, experts for the OUC testified that the OUC’s operations are more comparable to the private utilities in Florida because of its size and the fact that it has a substantial generating capacity. The municipal utilities in the Federal Power Commission’s Report were considerably smaller than the OUC and many had no generative capacity. At least one public service commission allowed a city utility a rate of return on equity comparable to private industry, and the courts in our jurisdiction frequently equate municipal utilities with privately owned utilities. Where there is conflicting expert testimony concerning the proper rate of return on equity standard to be applied to municipal utilities, we cannot say the lower court erred in finding for the OUC on this point. We note however, that this is precisely the type of ruling relating to rate structure that the PSC should determine.

Rosalind’s expert witness testified that if the Orlando franchise fee was treated as profit as we conclude it should be, then the OUC was earning approximately a 16% rate of return on equity rather than 13.5%. The OUC’s witnesses conceded that disallowance of such a large “operating expense” would indeed affect the OUC’s income yield perhaps as much as 2%. Assuming the OUC is really setting its rates to earn 16% rate of return on equity, this figure exceeds the PSC’s range of reasonableness, or certainly sits on the extremely high side of the range. However, rates may be higher than the PSC’s “reasonable” range but still not be confiscatory and arbitrary. Although this is a close question, we are reluctant to rule that one percentage point topples the OUC into the confiscatory or excessive range.

IV. COSTS.

Finally Rosalind argues that litigation costs should not be taxed against it as the representative of the class action because such amount has been included in the rates as an operating expense and therefore has been assessed to the OUC’s consumers through regular bills for service. We find this argument to be without merit, and consequently affirm the award of costs to the OUC as the prevailing party.

AFFIRMED.

ORFINGER, J., and WALKER, GRIS-SIM H., Associate Judge, concur.

      .In the Orlando Utilities Commission v. Rosalind Holding, 330 So.2d 56 (Fla. 4th DCA 1976), the Fourth District Court ruled that the complaint alleging that the Orlando Utilities Commission had charged its customers unreasonable rates, filed by Rosalind as a member of the class, stated a cause of action. Rosalind is a “resident” of the City of Orlando and an OUC customer. The OUC has approximately 80,000 consumers of its utilities services. The standing of Rosalind to bring this suit, and the propriety of the suit as a class action, were determined in the prior appeal and are therefore the “law of the case.”

      . Ch. 10968, Laws of Fla. (1925).

      . Edris v. Sebring Util. Comm’n, 237 So.2d 585 (Fla. 2d DCA), cert. denied, 240 So.2d 643 (Fla. 1970); §§ 366.02, 366.11, 367.022, Fla.Stat. (1979).

      . Cooper v. Tampa Elec. Co., 154 Fla. 410, 17 So.2d 785 (1944); City of Pompano Beach v. Oltman, 389 So.2d 283 (Fla. 4th DCA 1980); and 64 Am.Jur.2d, Public Utilities §§ 80, 89 (1972).

      . Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976); Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438 (1943); 12 E. McQuillin, Municipal Corporations, § 35.37a (1970).

      . Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944); Cooksey v. Utilities Comm’n, 261 So.2d 129 (Fla.1972); Pinellas Apartment Ass’n., Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974); § 180.13(2), Fla.Stat. (1979); 64 Am.Jur.2d Public Utilities §§ 135, 190 (1972); Annot., 127 A.L.R. 94 (1940).

      . Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438 (1943); City of Pompano Beach v. Oltman, 389 So.2d 283 (Fla. 4th DCA 1980); Clay Util. Co. v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969); see Edris v. Sebring Util. Comm’n, 237 So.2d 585 (Fla. 2d DCA), cert. denied, 240 So.2d 643 (Fla.1970); Wichita Gas Co. v. Public Serv. Comm’n of Kan., 2 F.Supp. 792 (D.Kan.1933), modified, 290 U.S. 561, 54 S.Ct. 321, 78 L.Ed. 500 (1934); 64 Am.Jur.2d Public Utilities § 86 (1972); 29 C.J.S. Electricity § 33 (1965).

      . The parties all agree that basing rates on “cost of capital” is the most universally adopted and reasonable method in the industry. The OUC has employed this method in setting its rates.

      . Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944); City of Logansport v. Public Serv. Comm’n of Ind., 202 Ind. 523, 177 N.E. 249, 76 A.L.R. 838 (1931).

      . In re Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968) (reviewed method of regulation); Banton v. Belt Line R. Corp., 268 U.S. 413, 45 S.Ct. 534, 69 L.Ed. 1020 (1925) (reviewing operating expenses); Wichita Gas Co. v. Public Serv. Comm’n of Kan., 2 F.Supp. 792 (D.Kan.1933), modified, 290 U.S. 561, 54 S.Ct. 321, 78 L.Ed. 500 (1934) (reviewed proper operating expenses and fair rate of return on utility property); Shevin v. Yarborough, 274 So.2d 505 (Fla.1973) (reviewed method to calculate rate base, inclusion of items in operating expenses); City of Miami v. Florida Public Serv. Comm’n, 208 So.2d 249 (Fla.1968) (reviewed method to compute rate of return); Hawaiian Elec. Co., Inc., 56 Haw. 260, 535 P.3d 1102, 83 A.L.R.3d 951 (1975) (reviewed “promotional” expenses as operating expenses); State v. Department of Pub. Serv., 19 Wash.2d 200, 142 P.2d 498 (1943) (reviewed operating expenses).

      . Art. VII, § 3(a), Fla.Const.

      . State v. Department of Pub. Serv., 19 Wash.2d 200, 142 P.2d 498 (1943).

      . City of Miami v. Florida Pub. Serv. Comm’n, 208 So.2d 249 (Fla.1968). See also In re Petitions of Burlington Elec. Light Dep’t, 135 Vt. 114, 373 A.2d 514 (1977); 56 Am.Jur.2d Municipal Corporation § 583 (1971).

      . See Occidental Chem. Co. v. Mayo, 351 So.2d 336 (Fla.1977).

      . In re Petitions of Burlington Elec. Light Dep’t, 135 Vt. 114, 373 A.2d 514 (1977).

      . Shevin v. Yarborough, 274 So.2d 505 (Fla.1973); Columbus & S. Ohio Elec. Co. v. Public Util. Comm’n of Ohio, 58 Ohio St.2d 120, 388 N.E.2d 1378 (1979).

      . Approximately $2 million per year.

      . The amount of the fee is based roughly on 6% of the revenues earned in Orlando. Six percent for a true franchise fee is fairly standard in Florida. Florida League of Cities, Municipal Utilities in Florida 122, 123 (1974). We note that the PSC now required real franchise fees to be paid only by the consumers in the cities charging the fees. City of St. Petersburg v. Hawkins, 366 So.2d 429 (Fla.1978). However, this is an area of discretion available to the PSC. In any event we do not consider the OUC’s franchise fee as a real franchise payment.

      . The City of Jacksonville receives 30% of its utility’s gross revenue. In an extreme case, there may arise the specter of a tax-free town made wealthy by its utilities operations both inside and outside its political limits.

      . In re Permian Basin, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

      . In re Petitions of Burlington Elec. Light Dep’t, 135 Vt. 114, 373 A.2d 514 (1977); In re Wanakah Water Co., No. 24511 (N.Y. P.S.C. March 26, 1968).

      . Federal Power Commission, Statistics of Publicly Owned Electric Utilities in the United States 1973 (1974).

      . Re Municipality of Anchorage d/h/a Anchorage Water Utility, 19 PUR 4th 278 (Alaska Pub. Util. Comm’n February 28, 1977).

      . Hamler v. City of Jacksonville, 97 Fla. 807, 122 So. 220 (1929); Edris v. Sebring Util. Comm’n 237 So.2d 585, cert. denied, 240 So.2d 643 (Fla.1970); 12 E. McQuiilin, Municipal Corporations § 35.37a (1970).

      . Columbus S. Ohio Elec. v. Public Util. Comm'n of Ohio, 58 Ohio St.2d 120, 388 N.E.2d 1378 (1979).

      . The expert witness from the PSC expressly refused to answer this question.

      . Government owned municipals are considered by authorities to foster lower rates in private utilities because of lower rate competition. R. Heilman, Government Competition in the Electric Utility Industry — A Theoretical and Empirical Study 39 (1972). In this case Orlando Utilities Commission has disproved the norm.

      . “A reasonable rate is one that falls within a ‘zone of reason’ ... it is a field, and not a mathematical point.” Wichita Gas Co. v. Public Serv. Comm’n, 2 F.Supp. 792, 799 (D.Kan.1933), modified, 290 U.S. 561, 54 S.Ct. 321, 78 L.Ed. 500 (1934). See also Banton v. Belt Line R. Corp., 268 U.S. 413, 45 S.Ct. 534, 69 L.Ed. 1020 (1925); 64 Am.Jur.2d Public Utilities § 190 (1972).

      . City of Pompano Beach v. Oltman, 389 So.2d 283 (Fla. 4th DCA 1980).

      . Rosalind does not dispute the amount of costs — $8,624.67.

      . § 57.041, Fla.Stat. (1979).


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    Gifford PETERSEN, Appellant, v. K-MART CORPORATION, Appellee.
    No. 80-141.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.
    Janet L. Brown of Haas, Boehm, Brown & Ridgon, P. A., Orlando, for appellant.
    Robert A. Hannah of Pitts, Eubanks & Ross, P. A., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This appeal comes to. us primarily upon an order requiring the appellant to either remit a portion of the punitive damages award or have a new trial on the issue of punitive damages. The trial judge determined the jury awarded an excessive amount for punitive damages.

By cross-appeal the appellee says the trial court erred in allowing the punitive damages issue to go to the jury in any event.

After this appeal was filed, the Florida Supreme Court issued its opinion in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), and we deem that case to be on point. It persuades us to say that based upon the evidence before the jury the plaintiff is not entitled to any punitive damages because the standard required in Mercury Motors was not met. Mercury Motors held that an employer is not vicariously liable for punitive damages under the doctrine of respondeat superior unless there is proof of fault on the employer’s part which foresee-ably contributed to the plaintiff’s injury. In point of fact, the plaintiff rather presciently, attempted to prove some matters relating to K-Mart’s hiring practices and the like and was met by the objection of the defendant and the ruling of the trial court which prevented inquiry into that subject. Because plaintiff preserved these points for appeal, we affirm the order for new trial on punitive damages in order to require and permit, if he can, the plaintiff to prove the essentials required by Mercury Motors.

ORDER OF NEW TRIAL AFFIRMED.

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


author: PER CURIAM. ORFINGER, Judge,

text:
    STATE of Florida, Appellant, v. David Allen HAUGEE, Appellee.
    No. 80-201.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Joseph A. Rosier, Altamonte Springs, for appellee.
   PER CURIAM.

An undercover agent, while making a drug buy from Sam Andrews at a single family dwelling occupied by Sam Andrews and Janice Peeler, was asked by Sam if the agent was interested in buying a large quantity of drugs. When the agent indicated affirmatively, he was told to come back any time after midnight as Sam was expecting another 20,000 Quaaludes then. Based on this as probable cause, a search warrant was issued authorizing search of the private dwelling

. . . together with the yard and curtilage thereof, any and all outbuildings and vehicles thereon ....

When, after midnight, the warrant was executed appellee Haugee was present in the house and his truck was in the yard. Appellee was searched, the keys to his truck were obtained from him and the truck was searched. Contraband was found within a briefcase in the truck. Citing Dunn v. State, 292 So.2d 435 (Fla. 4th DCA), cert. dismissed, 296 So.2d 47 (Fla.1974), the trial court suppressed the contraband found in the briefcase in the truck. We reverse.

In Alexander v. State, 108 So.2d 308 (Fla. 1st DCA 1959), where a search warrant did not specifically authorize the search of vehicles, the search of an automobile parked in the yard of the dwelling was upheld and Judge Wigginton, specially concurring, observed: *'

it has been uniformly held that where a search warrant authorizes officers to search a described building, together with the yard or curtilage on which the building is located, parked automobiles or other vehicles found in the yard or within the curtilage are proper subjects of search under the warrant. It has accordingly been held that evidence obtained by the search of automobiles or vehicles under such circumstances is admissible to prove the offense with which the defendant is charged.

Id. at 309.

In Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), cert. dismissed, 325 So.2d 404 (Fla.1976), it was held that information that contraband was “at” a certain described dwelling authorized the search warrant for the dwelling and the curtilage thereof. Neither the affidavit nor the warrant referred to any automobile and the dwelling was an apartment in a multi-unit complex. The court held the warrant authorized a search of an automobile located in a common parkway serving the entire complex where the automobile was identified as connected with the searched apartment merely because keys to it were obtained from the occupant of the specifically described apartment.

In Stipp v. State, 355 So.2d 1217 (Fla. 4th DCA), cert. denied, 364 So.2d 893 (Fla.1978), the affidavit referred to certain vehicles but the warrant expressly authorized search only of a described house and the curtilage thereof. Again keys to vehicles were obtained from the house and the vehicle searched. The court held:

We think the search of these vehicles was authorized under the warrant since they were in the curtilage described and under the control of the suspects in the house. 355 So.2d at 1218.

In Dunn v. State, 292 So.2d 435 (Fla. 4th DCA), cert. dismissed, 296 So.2d 47 (Fla. 1974), the search warrant described a single dwelling. In suppressing evidence resulting from a search of a van owned by the occupant of the dwelling and parked in the driveway, the Fourth District Court of Appeal in a two-one decision attempted to distinguish Alexander primarily because in Alexander the vehicle keys were obtained from the house and the Dunn majority believed “some such evidence necessary in order to authorize the search of a vehicle parked even within the ‘curtilage.’ ” Id. at 436. Dunn is merely referred to in Stipp and appears to be out of step with Alexander, Joyner, and Stipp. However, in requiring some evidence of a connection between the premises and the vehicle, Dunn recognizes that the obtaining of keys to the vehicle from the house described in the warrant is sufficient. Where, as in Joyner, the vehicle is in the common area of a multi-unit complex only one unit of which is described in the warrant, some connection of the vehicle to the dwelling unit is reasonable and necessary in order to extend to the vehicle the authority given by the warrant to search the dwelling unit.

In this case a probable cause for the warrant was the reasonable belief that contraband drugs were going to be somewhere in or around this single family dwelling after midnight. As there were no details as to how the contraband drugs were going to arrive there or where the drugs going to be located after they arrived, the search warrant was not overbroad in permitting a search of all places where the contraband could be hidden in the dwelling and its curtilage, including all buildings and vehicles thereon.

Taking arguments from two cases from other jurisdictions cited in Dunn, appellee Haugee argues that he and his vehicle were not named or described in the warrant and were not the “target” of the search but were “strangers to the process.” While this colorful language is designed to attract supporters, it actually is not in point. An arrest warrant is directed at people. Search warrants are directed at things which are believed to be at places. The reference to ownership or to persons in a search warrant is material only as a part of a description of a place or when the object to be seized may be located on, or in possession of, a person. In a search warrant authorizing the seizure of contraband, the reference to ownership is immaterial and the reference to persons is material only as the description, or part of the description, of a place where the contraband is or may be located. The object or “target” of the search and seizure here and in other drug cases is the contraband and the place where the affidavit reasonably indicates the contraband is, or will be, located without regard to ownership.

If courts exempt unknown and hence unnamed persons’ property from a valid warrant for a premises location, then most contraband can be kept secure from discovery by being kept on the premises but within vehicles, suitcases or other opaque containers owned by persons other than the regular known occupants of the premises. It is in the nature of such things that drug dealers are not specific when disclosing information that may be hazardous to their activities, such as exactly where on a premises contraband is kept or will in the future be kept. Even when an unwary drug abuser slips and discloses an exact location he does not guarantee that he will not relocate it if circumstances dictate. Law enforcement did the best it could do in this case. It should be sufficient.

Since the warrant did not exceed the probable cause upon which it was based and the warrant expressly authorized the search of vehicles on the curtilage to the described single family dwelling, we uphold the search. The suppression order of the trial court is

REVERSED.

SHARP and COWART, JJ., concur.

ORFINGER, J., dissents with opinion.

ORFINGER, Judge,

dissenting:

I must respectfully dissent. The majority opinion authorizes and encourages “dragnet” search warrants by permitting the search of a vehicle belonging to a stranger and not shown to have any connection to the premises described in the search warrant, except that the person and the vehicle are on the premises when the search warrant is executed. Article I, section 12 of the Florida Constitution says that “no [search] warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized ... and the nature of the evidence to be obtained.” The fourth amendment to the United States Constitution contains a similar proscription.

The affidavit supporting the search warrant described a transaction with and premises owned and occupied by Sam Andrews and Janice Peeler. There is nothing in the affidavit which would lead one to believe that someone other than those named in the search warrant would come on the premises to deliver any contraband, so there is no probable cause shown to believe such might occur. The affidavit and warrant are more than adequate to support a search of Sam or Janice’s property, but do not present any probable cause which would support a search of a complete stranger to the premises. Until the search of appellee's vehicle was made, the officers had no knowledge or suspicion that he was or would be involved in this drug transaction. I agree that strangers cannot necessarily be identified by the officer, but if the officer had any reason to believe that contraband was going to be brought onto the premises by someone unknown, he could have said so in his affidavit, and thus show probable cause for searching a stranger on the premises at the time. When the search warrant was executed, there were four vehicles in the curti-lage, including appellee's.

In this case, I think the answer to the question of whether the search of appellee’s vehicle can be supported depends on whether, under these circumstances, the search of the appellee would have been justified, and on the basis of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the search of the appellee under these circumstances is unjustified.

It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more give rise to probable cause to search that person .... Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to the person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. (emphasis supplied).

100 S.Ct. at 342.

Consequently, the warrant here did not authorize the search of Haugee merely because he was found on the premises, and neither could it without more authorize a search of his vehicle.

Despite my deep respect for Judge Wig-ginton, the quotation alluded to by the majority from his specially concurring opinion in Alexander v. State, 108 So.2d 308 (Fla. 1st DCA 1959), was not the opinion of the court. Additionally, in Alexander, there is nothing in the opinion to indicate that the vehicle belonged to anyone other than the owner of the premises. In Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), the vehicle in question was parked in the spot designated for the apartment to be searched and could be identified as belonging to the owner of that apartment. In Stipp v. State, 355 So.2d 1217 (Fla. 4th DCA 1978), cert. denied, 364 So.2d 893 (1978), the court upheld the search of the vehicle in the curtilage because the affidavit described certain vehicles which were believed to be leased to the suspects, and the court found that the vehicles were in the control of the persons named in the warrant.

In Dunn v. State, 292 So.2d 435 (Fla. 4th DCA 1974), the court specifically addressed the propriety of the search of a vehicle in the curtilage of the premises identified in the warrant, but not otherwise connected to the premises, and in holding such search invalid, said;

The State relies upon the case of Alexander v. State, 108 So.2d 308 (1st DCA Fla. 1959). There are significant differences between Alexander and the case at hand, we believe. In Alexander, like the case here, the warrant referred to the premises and the automobile was located on the premises, but Alexander does not make it clear how many vehicles were on the premises. Also, in Alexander, the arresting officers were in the process of making their search when they rocked the car in question from side to side. As they did so, a gurgling sound emitted from the trunk. (This was a moonshine case.) The officers procured a set of automobile keys from the kitchen table inside the house, opened the trunk of the car and found the contraband in question. In the case at hand, there was no such evidence to connect the vehicle in question with the premises and we believe some such evidence necessary in order to authorize a search of a vehicle parked even within “the curtilage”.

Id. at 436.

The same significant difference exists here. On a motion to suppress, the judgment of the trial court on probable cause comes to us with a presumption of correctness, G.J.S. v. State, 393 So.2d 14 (Fla. 5th DCA 1980), and in my opinion, the trial court was correct in granting the motion. The majority opinion is in apparent conflict with Alexander, Joyner and Stipp, and is in specific conflict with Dunn, and it should be so certified to the Supreme Court so that the conflict may be resolved.

      . Sec. 933.18(5), Fia.Stat. (1979), authorizes a search warrant for an occupied private dwelling when the law relating to narcotics or drug abuse is being violated therein.

      . Section 933.05, Florida Statutes (1979), requires the warrant to name or describe “the person, place or thing to be searched....” Section 933.07, Florida Statutes (1979), provides the warrant is “to search the property described in the warrant or the person named.... ”

      . See Ybarra, 100 S.Ct. at 343, fn. 4, where the court observes:
      The Fourth Amendment directs that “no warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” Thus, “open-ended” or “general” warrants are constitutionally prohibited. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920; Marshall v. Barlow's Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305; United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538; Stanford v. Texas, 379 U.S. 476, 480-482, 85 S.Ct. 506, 509-510, 13 L.Ed.2d 431. It follows that a warrant to search a place cannot normally be construed to authorize a search of each individual in that place. The warrant for the Aurora Tap Tavern provided no basis for departing from this general rule. Consequently, we need not consider situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs, (emphasis supplied).


author: COWART, Judge. SHARP, Judge,

text:
    Dartha Killingsworth THOMPSON, Appellant, v. George Allen THOMPSON, Appellee.
    No. 80-1225.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.
    Bruce S. Kaufman, Daytona Beach, for appellant.
    Henry P. Duffett of Duffett, Seps & Ak-ers, Ormond Beach; and Berrien Becks, Jr., of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   COWART, Judge.

We uphold the trial judge’s finding that it was in the best interest of the child to award custody of the 15 year old son to the father although this decision split the custody of the parties’ two children.

We sustain the award of $65 per week for child support for the 11 year old daughter in the wife’s custody on the basis that the father must also provide full medical and dental care and in view of the father’s loss of income resulting from a disabling medical problem from which he is recovering. Of course, an increase in the father’s earnings above that upon which the final judgment was based will warrant an increase in child support. A parent’s income is the most dominant and directly related factor to be considered in determining the amount of the financial duty to support a child in the custody of another. We suggest that a 10 percent change, up or down, in an obligor’s disposable income, could constitute a substantial change in circumstances justifying an adjustment of such support.

Florida law does not yet require that all of the wealth and property acquired during the marriage, i. e., “marital property,” be equally divided between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). Therefore we affirm the trial court’s equitable distribution of the marital property.

Considering the husband’s depressed financial condition, the length of the marriage, the age, education, conduct and substantial assets of the wife, the trial judge did not abuse his considerable discretion in awarding lump sum alimony payable periodically. § 61.08, Fla.Stat. (1979); Canakaris v. Canakaris; McAllister v. McAllister, 345 So.2d 352, 354 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978); Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973).

The final judgment is

AFFIRMED.

FRANK D. UPCHURCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissents.

Prior to the dissolution the wife received $900.00 per month for the household budget and she testified she needed $20,000.00 per year to maintain the same life-style for herself and the children. She was awarded custody of the daughter, but she has no job or income. The daughter attended private school, and her tuition cost was $75.00 per month. The family was accustomed to a relatively high standard of living. The husband’s lowest income was $73,788 per year, the year the dissolution was started. It is obvious the daughter’s life-style will drastically change. I consider it an abuse of discretion to award only $65.00 per week for the support of the daughter.

Further, the denial to the wife of any substantial alimony award — periodic or lump sum — also appears to me an abuse of discretion. The wife is thirty-eight (38) years of age, has a BS Degree in Medical Technology, and expressed a desire to enter the real estate sales business. But during the sixteen years of the marriage she did not work, and stayed home to raise the children. She had no job and she had not taken courses to obtain certification by the State as a salesperson. From his medical practice, the husband had acquired substantial assets. He had considerable real estate (formerly in joint name with his wife) which was then owned by his corporations and he had various insurance policies, IRA accounts. His admitted net worth was approximately $320,482.34.

The unequal treatment of the wife in this case can only be explained by the “fault” the trial judge “found” with regard to her conduct as a wife in the closing years of the marriage. This judgment is not entitled to any presumption of correctness, because the trial judge did not hear the testimony. It was all recorded for his reading before a “special master” who made no findings of fact. The record indicates, however, that there was evidence of “fault” and misconduct on both parties' sides — even if such matters are relevant, and I submit, they should not be. Under these circumstances, I would remand to the trial judge to reconsider the alimony award to the wife, without regard to “fault.”

      . Alford v. Alford, 364 So.2d 1255 (Fla.2d DCA 1978); Hall v. Hall, 363 So.2d 137 (Fla.2d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979).

      . She did receive a $10,000 lump sum amount.

      . Fodor v. Fodor, 379 So.2d 466 (Fla. 4th DCA 1980); Shaw v. Shaw, 369 So.2d 81 (Fla.3d DCA 1979).


author: SHARP, Judge.

text:
    Marvin Wayne STONE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1302.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1980.
    James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Stone entered a nolo contendere plea and appeals from the trial judge’s denial of his motion to dismiss because his prior conviction and sentence barred his current prosecution on double jeopardy grounds. Under the circumstances of this case we agree that the.second prosecution was barred by the double jeopardy clause.

Stone was charged by an information with assault and improper display of a dangerous weapon. He pled guilty to improper display, and the trial court on its own motion dismissed the count based on a violation of Section 784.011, Florida Statutes (1979). Stone was convicted and sentenced. Later the State sought to prosecute Stone pursuant to an earlier separately filed information which charged Stone with aggravated assault. For purposes of the motion to dismiss the attorneys stipulated that both charges are based on Stone’s pointing a shotgun, cocking it, and threatening to kill one Mark Steven Holt. Both the informations set out the same factual basis for both counts.

The double jeopardy clause prohibits consecutive prosecutions for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Conviction for a lesser included offense will bar a subsequent conviction for the greater offense. The test to determine whether or not double jeopardy applies is whether each statutory offense “requires proof of an additional fact which the other does not ...” Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2227, 53 L.Ed.2d at 194 (quoting Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Brown involved a defendant convicted of “joyriding” who was subsequently being prosecuted for auto theft. The Ohio courts stated that joyriding was a lesser included offense of auto theft, and the “greater offense” only required the proof of one additional element: intent to permanently deprive an owner of his property.

The test in Brown came from Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger a defendant was convicted and sentenced for multiple offenses involving the sale of narcotics. One offense required proof that the sale was not from the original stamped package. Another offense required proof that there was no written order for the sale as required by the statute.

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.... A single act may be a offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.

In this case, the offense of “improper display” may or may not be a lesser included offense of “aggravated assault” because the felony offense may be established by the same proofs necessary to prove the misdemeanor, plus proof that the person threatened was put in fear. However, the misdemeanor may also be established by facts which are not required or elements of aggravated assault — for example, the careless display of a dangerous weapon.

In order to determine whether or not the misdemeanor or other offense is a lesser included offense of the greater one, it is necessary to look at the allegations of the informations and where appropriate, the proofs at trial.

In this case our task is simplified greatly because the parties have stipulated that Stone’s threatening Holt with the shotgun was the basis for both offenses. As in Brown v. Ohio, all the State had to do to prove the felony was to prove one additional element: that Holt was put in fear. In this situation, conviction of the misdemean- or should bar prosecution for the felony because the two offenses do not each require proof of different elements. As the Third District Court of Appeal reasoned in State v. Kirkland, 384 So.2d 1328 (Fla. 3d DCA 1980):

[Although it is quite correct, as argued by the State, that the crime of first degree murder contains one fact that is in addition to the elements of robbery (specifically, in proving the first degree murder charge the State would be required to prove the fact and cause of the death of Mr. Rosenthal in addition to proving the elements of the strong-armed robbery) it is equally clear that the robbery does not require the proof of any fact or element that would not also be required to be proved in the first degree murder case. 384 So.2d at 1330.

Because proof of the misdemeanor in this case required no different element or further proof than the felony, the subsequent prosecution for the felony is barred by the double jeopardy clause. Stone’s conviction and sentence for aggravated assault are therefore vacated, and the judgment appealed is

REVERSED.

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

      . U.S.Const. Amend. V and Amend. XIV; Art. I, § 9, Fla.Const.

      . § 784.011, Fla.Stat. (1979).

      . § 790.10, Fla.Stat. (1979).

      . § 784.021, Fla.Stat. (1979).

      . Willard v. State, 386 So.2d 869 (Fla. 1st DCA 1980); Irving v. State, 337 So.2d 1014 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977).

      . An assault is a “threat ... to do violence ... which creates a well-founded fear ... that such violence is imminent.” § 784.011(1), Fla.Stat. (1979).

      . “If any person having or carrying any ... firearm .. . shall ... exhibit the same in a ... careless . .. manner ....” § 790.10, Fla.Stat. (1979).

      . See Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981); Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1980); Willard v. State, 386 So.2d 869 (Fla. 1st DCA 1980); Irving v. State, 337 So.2d 1014 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977); Mack v. State, 305 So.2d 264 (Fla. 3d DCA 1974).


author: HOBSON, Acting Chief Judge.

text:
    CITY OF LAKE WALES, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    Nos. 80-1491, 80-1837.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
    Rehearing Denied Sept. 4, 1981.
    W. Reynolds Allen and Mark E. Levitt of Hogg, Allen, Ryce, Norton & Blue, P.A., Tampa, for petitioner.
    Frederick G. Bohannon, Staff Counsel, Public Emp. Relations Commission, Tallahassee, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner City of Lake Wales seeks review of two final administrative orders rendered by the Public Employees Relations Commission (PERC). Order No. 80E-153 (case No. 80-1491) defined the appropriate unit of employees of the City’s police department for collective bargaining, directed an election in that unit, and designated managerial/confidential employees. In that order, PERC held that shift command sergeants and the supervisory detective sergeant were neither managerial nor confidential, nor were they “conflict supervisors” and must, therefore, be included in the bargaining unit. Order No. 509 (case No. 80-1837) verified the results of the election and certified the Hillsborough County Police Benevolent Association as the exclusive bargaining representative. We affirm both orders.

This court is required by the provisions of section 120.68(7), Florida Statutes, to deal separately with issues of agency procedure, interpretations of law and determinations of fact. Further, we are not permitted to substitute our judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. § 120.68(10). We restate these well-known rules of judicial review to emphasize that regardless of whether we agree with the final agency actions, we are statutorily prevented from changing the outcome where substantial, competent evidence supports the findings of fact and the agency correctly applied the statutory criteria, section 447.203(4), (5), Florida Statutes, to those facts.

In many respects PERC’s designation seems to ignore the operational and managerial philosophy that exists in the Lake Wales Police Department. Yet, there is some evidentiary support for the hearing officer’s findings of fact, and we cannot say that PERC misapplied the law to these findings.

Therefore, we deny the petitions for review.

GRIMES and OTT, JJ., concur.


author: PER CURIAM.

text:
    OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Vincenza VERDE, a minor, and Leonard Verde and Laura Verde, individually and as parents of Vincenza Verde, a minor, Appellees.
    No. 79-2114.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Sept. 16, 1981.
    Arthur Parkhurst of Parkhurst, Pickford, Ayres & Carlson, Fort Lauderdale, for appellant.
    Timothy P. Beavers of Ferroro, Middle-brooks & Strickland, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed on the authority of United States Fidelity and Guaranty Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976), cert. denied, 353 So.2d 680 (Fla.1977).

LETTS, C. J., and MOORE and HURLEY, JJ., concur.


author: COWART, Judge.

text:
    WINTER SPRINGS DEVELOPMENT CORPORATION, etc., Appellants, v. FLORIDA POWER CORPORATION, etc., Appellee.
    No. 80-547.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.

      Albert R. Cook and Michael D. Jones of Jones, Morrison & Stalnaker, P. A., Alta-monte Springs, for appellants.

      Robert W. Pass, J. Brent Walker and A. Broaddus Livingston of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa; S. A. Brandimore and R. W. Neiser, St. Petersburg, for appellee.
   COWART, Judge.

In 1971 the Florida Public Service Commission adopted rules requiring power companies to calculate the cost differential, if any, of underground service compared to overhead distribution and restructured rates to cause any amount by which the cost of underground service exceeded that of overhead service to be charged to subdivision developers. Appellee Florida Power Corporation had no cost differential and no underground charge until 1974 when a cost differential appeared and, effective January 15,1975, the Commission approved Florida Power’s application to charge a differential.

Winter Springs Development sued Florida Power, alleging that on or about December, 1972, the parties entered into a contract wherein Florida Power agreed to install underground service at no cost in a large subdivision being developed by Winter Springs. The complaint further alleged that Winter Springs had performed all of its obligations under the contract relating to certain clearing and staking and the payment of a certain sum of money for street lights and extra long service runs, but that Florida Power had breached the contract by failing, neglecting or refusing to install a portion of the underground service agreed to be installed until after January 15, 1975. Florida Power answered, alleged certain affirmative defenses, and moved for summary judgment on the following four grounds:

(1)This action was barred by the statute of frauds, section 725.01, Florida Statutes (1977), because the alleged contract was not to be performed within one year and was not in writing signed by Florida Power.
(2) Winter Springs had failed to exhaust its administrative remedies before filing this action.
(3) Florida Power’s performance of the alleged contract was prevented by “supervening governmental activity.”
(4) As Winter Springs was not a corporate entity at the time of the alleged contract it could not enter into a contract.

The trial court entered summary judgment for Florida Power. Winter Springs appeals. We reverse.

Summary judgment for Florida Power was improper because there were genuine issues as to facts which were material to the issues framed by the pleadings. First, all facts relating to the existence and terms of the contract between the parties, especially those expressed or implied terms relating to the time within which Florida Power was to have performed its obligations under the contract as alleged, were at issue. These facts are material both to the applicability of the statute of frauds and, if a contract is established, as to whether Florida Power could have performed under the contract, partially or completely, on or before January 15, 1975, the date of the claimed “supervening governmental activity.” Second, there were questions as to the existence of written memoranda of the alleged contract which might be sufficient to satisfy the statute of frauds if a contract is established and if the time for performance of such contract makes the statute of frauds otherwise applicable.

We find that Florida Power’s assertion of a failure to exhaust administrative remedies does not apply in this action. Actually and essentially this is an action on a contract and not a claim that Florida Power failed to perform some duty placed by law on it as a public utility. The mere fact that the damages for breach of this particular contract may be measured by the amount the plaintiff had to pay as a rate and charge for underground services after January 15, 1975, does not mean that this controversy must be taken to the Florida Public Service Commission. While ordinarily a plaintiff who has an administrative remedy provided by statute must exhaust that remedy before a court will act to give the same remedy, Florida Welding and Erection Service, Inc. v. American Mutual Insurance Company, 285 So.2d 386 (Fla.1973), a plaintiff is not required to pursue administrative remedies where they are not available and adequate. Cherry v. Bronson, 384 So.2d 169 (Fla. 5th DCA 1980). Therefore, where, as here, a plaintiff seeks money damages for breach of contract, which an administrative body is not empowered to award, the administrative remedy is not considered adequate and the plaintiff is not bound to exhaust it before seeking relief in court. Southern Bell Tel. and Tel. Co. v. Mobile America Corp., Inc., 291 So.2d 199 (Fla.1974); Northeast Airlines, Inc. v. Weiss, 113 So.2d 884 (Fla. 3d DCA), cert. denied, 116 So.2d 772 (Fla.1959); Miami v. Fraternal Order of Police, 378 So.2d 20, 24 n. 8 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980). Since the Public Service Commission is not authorized to award money damages, Winter Springs was not bound to seek an administrative remedy for the dispute and thus the doctrine of exhaustion of administrative remedies has no application in this case. See Southern Bell Tel. and Tel. Co. v. Mobile America Corp., Inc. Compare Florida Power Corporation v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980), pet. denied, 394 So.2d 1151 (Fla.1981), where this court perceived the actual dispute between the parties to be one relating only to rates and charges for services or installation under the Florida Administrative Code and therefore exclusively within the primary jurisdiction of the Florida Public Service Commission. In Advance Mobile Homes, rates and charges for services and installations, which were the subject of the dispute, were subject to the jurisdiction of the Florida Public Service Commission, both in 1973 when the parties first discussed underground electrical installations, and also in 1976 when the dispute between the parties matured. In this case there was no governmental limitation on the authority of Florida Power to enter into a contract to install underground service until the Florida Public Service Commission acted on January 15, 1975, and the dispute in this case relates only to matters occurring prior to that date.

For the same reason, the doctrine of “supervening governmental activity” does not apply in this case, because under the theory of its case Winter Springs will be entitled to recover damages only as to the underground service that Florida Power should have installed prior to the January 15,1975, action of the Commission authorizing charges for underground service, which is the very act which Florida Power urges as being the “supervening governmental activity.” It is likewise .the time factor of this case that distinguishes it from H. Miller & Sons, Inc. v. Hawkins, 373 So.2d 913 (Fla.1979). In Miller, the utility’s obligation was limited by agreement to providing only plant capacity and it was not responsible for the installation of the service lines necessary to make the plant capacity available. Accordingly, the utility’s contractual performance was necessarily keyed in time to the actual “time of connection” with each house. Consistently, Miller’s incremental payments were tied to time or the completion of a certain number of homes. In Miller the developer argued only that since, before the rate increase, payment had been madé for future connections, the increase should not be applied to homes built and connected after the rate increase. Therefore, in Miller there was no claim or issue that the utility breached a contract by not timely fulfilling contractual obligations.

In this case the alleged contract with Florida Power relates only to installation of service facilities and the central issue is whether there was a contract and, if so, whether and to what extent Florida Power should have performed its undertakings under the alleged contract prior to January 15, 1975.

The summary judgment in favor of ap-pellee is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . This was done, not by directing such cost differential be collected, but by providing that any such cost differential could not be charged to the general body of rate payers, thereby leaving the utility with the choice of having its stockholders pay the cost differential or imposing it upon subdivision developers. Fla.Admin. Code Rule 25-6.78(8) provides:
      Nothing herein contained shall be construed to prevent any utility from assuming all cost differential of providing underground distribution systems, provided, however, that such assumed cost differential shall not be chargeable to the general body of rate payers, and any such policy adopted by a utility shall have uniform application throughout its service area.


text:
    William J. FRIES, et al., Appellants, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 80-778.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.
    Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley, Scott & Kab-boord, P.A., Cocoa Beach, for appellants.
    Palmer W. Collins, Melbourne, for appel-lee.
   COWART, Judge.

Appellants’ second amended complaint alleges that the defendant, appellee power company, negligently built and maintained uninsulated high tension electrical power transmission lines and poles alongside State Road 520 over the causeway across the Banana River in Brevard County, Florida, which resulted in injuries to appellants when these power lines were touched by the mast of appellants’ catamaran sailing boat. The trial court in granting a summary judgment against appellants found, as a matter of law, no negligence on the part of the defendant power company. We reverse.

The affidavit in support of the appellee’s motion for summary judgment in this case was argued to have tracked the affidavit supporting the summary judgment in favor of appellee power company in Rice v. Flori da Power and Light Company, 363 So.2d 834 (Fla.3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979), and alleges that the power lines in this case were: clearly visible; designed and constructed in full compliance with the accepted engineering procedures and in full conformance with the then existing and anticipated needs; constructed in full conformance with clearance and other requirements of the National Electric Safety Code; and were constructed and installed under the authority of Bre-vard County, Florida. These allegations do not, and cannot, serve to establish as a matter of law that the appellee power company was guilty of no negligence in maintaining its power lines under the exact conditions and circumstances existing at the time and place of the accident in question. Nor do we feel this case is governed by Rice where the Third District Court of Appeal held that, as a matter of law, “it would be beyond the bounds of reason to require [Florida Power and Light] to foresee an occurrence such as that presented by the instant case.” Id. at 839. In Rice the decedent had flown a hand-controlled model airplane, with metal control lines, into the power company’s uninsulated overhead power lines. However in the instant case, appellants contend that the appellee knew the area where the accident occurred encompasses navigable waters frequented by numerous sailing vessels and therefore it was foreseeable that an accident like the one here could occur.

Hoffman v. Jones, 280 So.2d 431 (Fla.1973), adopting comparative negligence in Florida, and Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), effectively abolishing the doctrine of assumption of risk as an absolute defense under comparative negligence, apply to the erection and maintenance of power lines, as does the restriction on granting summary judgments in negligence cases. See Alvarez v. Florida Power and Light Company, 260 So.2d 546 (Fla.3d DCA), cert. denied, 265 So.2d 370 (Fla.1972).

The fact that the power lines here were clearly visible relates only to appellants’ possible negligence and does not indicate lack of any negligence of the power company. Similarly, design and construction of power lines contrary to accepted engineering procedures and safety codes may be evidence of negligence; nevertheless, original design and construction consistent with such procedures and codes does not establish lack of negligence in the maintenance of such power lines under conditions and circumstances existing at a particular given time and place. Finally, the fact that power lines or anything else, are constructed and installed under the authority of a governmental body, rather than tending to exonerate the constructor, may, today, merely indicate that some governmental body may also have some legal liability for resulting damages. See generally section 768.28, Florida Statutes (1979).

Genuine issues of fact, material to the issue of the appellee’s negligence and appellant’s comparative negligence, precluding summary judgment under Florida Rule of Civil Procedure 1.510, appear to include at least the following: (1) whether the defendant power company knew, or should have known, that in the vicinity where this accident is alleged to have occurred, the waters of Banana River are navigable and frequented by many sailing vessels; (2) whether, at the location of the accident, the appel-lee exercised reasonable care for the safety of others in maintaining its overhead electrical transmission lines (relevant to this issue is the height of the lines, their location with respect to the water and possible applicability of warning signs); and (3) whether appellants were negligent themselves in causing their own injuries (relevant to this issue is the obviousness of the lines, and whether they were avoidable or not).

The summary judgment in favor of ap-pellee power company is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: COBB, Judge.

text:
    Daryl Lee CASTELBERRY and Robert James Goode, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-895, 80-903.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Tallahassee and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

In this consolidated appeal, the appellants raise seven issues. Only two merit discussion.

The appellants were both charged with escape (Count I); burglary with an assault (Count II); burglary while armed with a knife (Count III); burglary while armed with a firearm (Count IV); armed robbery (Count V); and grand theft auto (Count VI). Both appellants were convicted and adjudged guilty on all six counts. Both were thereafter sentenced as follows: escape, fifteen years; burglary of a dwelling with a firearm, three hundred years; armed robbery three hundred years; grand theft, ten years.

The first issue we address is whether the automobile in Count VI was personal property taken during the course of the robbery charged in Count V. We hold that it was. The taking of the car, along with other property taken from within the victims’ residence, was effectuated by force and by placing the two victims in fear. The appellants entered a residence and both occupants were bound. The appellants then proceeded to take a gun and ammunition, money, jewelry, clothes, and other personal property, including keys to a car belonging to one of the victims. Having taken everything they wanted from inside the house, and while the victims remained restrained and in fear, the appellants took the car.

Our holding is necessarily limited to its fact situation. See Hearn v. State, 55 So.2d 559 (Fla. 1951). Whether an item is taken as part of one theft or robbery, or two, necessarily depends upon chronological and spatial relationships. If a defendant thrusts a pistol into a victim’s ribs and says, “Give me your watch, your wallet, and your tie!” and the victim complies, only one statutory violation, one robbery, has been committed. See Hearn, 55 So.2d at 560; McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979) [items listed in a grand larceny count were taken during the same continuous sequence of events as money charged in a separate robbery count; the grand larceny was held to be a lesser included offense of the robbery].

We note that section 775.021(4), Florida Statutes (1979), does not mandate a different result because, as previously discussed, only one violation of the criminal statutes occurred with respect to this aspect of the appellants’ course of conduct. We also view our conclusion on this point as not inconsistent with Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975), cited by the state. In Joseph, unlike the present case, there was no indication that the perpetrator obtained the automobile by force, violence, or by putting in fear.

Reiterating, because possession of the car, like all the rest of the personalty taken from the residence by the appellants, was the product of the same force and fear, the taking of the car charged in Count VI is a lesser included offense of the robbery charged in Count V. The convictions and sentences based upon the respective Count Vi’s must be reversed.

The second point we consider is whether the trial court erred by adjudging the appellants guilty of three counts of burglary. We hold that it did. Though three separate aggravating circumstances occurred while the appellants were within the residence, only one burglary, one entrance with the intent to commit an offense, took place. Two of the three respective burglary convictions are therefore vacated: burglary with an assault (Count II) and burglary while armed with a knife (Count III). The appellants’ convictions and sentences for burglary while armed with a firearm (Count IV) are affirmed.

Because we are vacating the appellants’ burglary with an assault convictions, we need not consider their argument that the assault merger into their robbery convictions. We therefore remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED in part; AFFIRMED in part; and REMANDED.

SHARP and COWART, JJ., concur.

      . A third defendant pleaded guilty to the charges against him and is not a party to this appeal.

      . The car owner-victim testified as follows:
      Q. And where did they get the keys from?
      A. Well, I had the keys in a ... I believe they was laying on top of the dresser drawers. Or in my pocket, I forget which. But, they asked me for the keys, and I give them to them, told them where it was.

      . While the appellants were adjudged guilty of all three burglary charges, they were sentenced only for burglary while armed with a firearm (Count IV).


text:
    Jimmy Laverne CANTY, Appellant, v. STATE of Florida, Appellee.
    No. 80-918.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.

      James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant Canty was adjudicated guilty of armed robbery in violation of section 812.13, Florida Statutes (1979) and sentenced to thirty years imprisonment with the trial court retaining jurisdiction over the first one-third of the sentence. It is this judgment and sentence that Canty has appealed.

First, Canty appeals the trial court’s denial of his motion for new trial. The motion was not filed until after the notice of appeal was filed. Since the motion for new trial was untimely filed, the trial court was without jurisdiction to hear it. State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla.1961); State v. Farmer, 384 So.2d 311 (Fla. 5th DCA 1980).

Second, Canty argues on appeal that the trial court erred in retaining jurisdiction over the first one-third of his sentence without stating the reasons on the record pursuant to section 947.16(3)(a), Florida Statutes (1979). This point was not raised before the trial court. It concerns a procedural error which is not fundamental; therefore, it cannot be raised for the first time on appeal. Jones v. State, 384 So.2d 956 (Fla. 5th DCA), pet. for res. denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), approved, 394 So.2d 407 (Fla.1980); Cf., Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

Accordingly, the judgment and sentence of appellant are affirmed.

AFFIRMED.

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


text:
    Bradford Glenn McDONNOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1381.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.

      James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant McDonnough was tried and convicted of aggravated battery and robbery. He appeals the judgment. Of the points raised on appeal, we find merit in a portion of one point and will confine our opinion to that partial point.

In conformity with Florida Rule of Criminal Procedure 3.200 (1980), McDonnough filed a Notice of Intention To Claim Alibi more than ten days prior to trial. During the trial, the state gave the defense a copy of the statement of police officer Brent Papania and notified the defense that the state would be using that officer’s testimony to rebut McDonnough’s alibi. Contrary to Florida Rule of Criminal Procedure 3.220 (1980), the state had never supplied Papa-nia’s name to the defense on a witness list.

Prior to Papania taking the stand, defense counsel objected to the witness testifying since his name had not been listed on the state’s witness list. The prosecutor argued that since he had given a copy of Papania’s statement to the defense earlier in the trial, the defense was not surprised and, therefore, not prejudiced by the state’s failure to comply with the criminal rules of procedure. Based upon this short argument, and without the making of any findings, the trial court allowed Papania to testify.

If it is brought to the attention of the trial court that a party has failed to comply with the criminal rules of procedure, then the trial court may exercise its discretion in determining whether the non-compliance would prejudice the defendant. However, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Richardson v. State, 246 So.2d 771, 775 (Fla.1971). Such an inquiry should at least cover the questions as to whether the violation was inadvertent or willful, whether the violation is trivial or substantial, and what effect if any the violation had upon the ability of the other party to prepare for trial. Richardson at 775. See State v. Snell, 391 So.2d 299, 300 (Fla. 5th DCA 1980).

If the trial court does not hold an adequate Richardson hearing, the appellate court cannot apply the doctrine of harmless error. Brey v. State, 382 So.2d 395 (Fla. 4th DCA 1980); Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA), cert. denied, 386 So.2d 642 (Fla.1980). Nor can the appellate court order a post-trial Richardson hearing. Smith v. State, 372 So.2d 86 (Fla.1979); Miller v. State, 373 So.2d 377 (Fla. 2d DCA 1979).

The rules of criminal procedure requiring disclosure of witnesses apply to all witnesses including rebuttal witnesses. Hicks v. State, 400 So.2d 955 (Fla.1981); Miller v. State, 389 So.2d 1210 (Fla. 1st DCA 1980); Miller v. State, 373 So.2d 377 (Fla.2d DCA 1979).

In the case at hand, the inquiry into the state’s failure to provide Papania’s name on a witness list was insufficient to meet the requirements of Richardson. In view of the precedential cases cited above, we are compelled to reverse the judgment and remand this case for a new trial.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . § 784.045, Fla.Stat. (1979).

      . § 812.13(2)(b), Fla.Stat. (1979).


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Warren D. MUSSELWHITE, Appellee.
    No. 80-990.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Rehearing Denied Sept. 3, 1981.

      Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Richard S. Rhodes, Orlando, for appellee.
   RYDER, Judge.

This is an appeal from an order granting a motion to suppress physical evidence in a criminal proceeding against Warren D. Musselwhite and the denial by the trial judge of the State’s motion for sufficient time to bring the Musselwhite matter to trial after receipt of the mandate issued by this court.

On March 7, 1979, a search warrant was executed and issued by Circuit Court Judge Charles T. Carlton wherein he authorized a search of a particular residence in Lee County, as well as the curtilage thereof and all vessels and vehicles found within the curtilage.

When the authorities arrived at the aforementioned residence, they found a 1978 Lincoln Versailles, allegedly owned by Musselwhite, parked in the driveway of the residence. The Lincoln had been twice described in the search warrant’s affidavit. The police searched the vehicle, found a quantity of marijuana and other material within and charged appellee with various drug offenses.

On May 7,1980, appellee filed a motion to suppress physical evidence found within the Lincoln claiming, inter alia, that the vehicle had not been listed in the warrant as an item to be seized and, further, that the vehicle and properties seized from the vehicle pursuant to the warrant were not incorporated into the return and inventory of all property seized pursuant to the warrant.

The Musselwhite case came on for trial on May 30, 1980 and after the jury panel for that specific trial was sworn for voir dire examination, a hearing was held on appellee’s motion to suppress before Circuit Judge Robert T. Shafer, to whom the case had been assigned for trial. Subsequent to a hearing on the motion, Judge Shafer granted the motion to suppress so far as it applied to the Lincoln but denied same as to all other physical evidence pursuant to the search warrant.

Thereafter, the State filed its notice of appeal, moved for the tolling of speedy trial during appeal, as well as the granting of a sufficient time to try the Musselwhite case after receipt of the mandate from the Second District Court of Appeal. Judge Shafer granted the motion to toll speedy trial, but denied the State’s motion for a sufficient time to permit trial after receipt of the mandate.

The State challenges the rulings alleging that Judge Shafer erred in granting the motion to suppress evidence seized in regard to the Lincoln and that he also erred in denying the State’s motion for sufficient time to permit trial after receipt of this court’s mandate. We agree and reverse in both instances.

Appellee’s basic contentions during the motion to suppress were:

(a) the search warrant was not sufficient to authorize the search of the Lincoln as the automobile was not specifically mentioned in the warrant;
(b) the failure of the authorities to list the Lincoln on the return and inventory rendered the warrant void as illegally executed.

Our reading of the search warrant reveals that the issuing judge directed a search not only of the particularly described residence but also required a search of the curtilage and of all vehicles found within that curtilage. Where a search warrant authorizes the police to search a described building, together with the curtilage of that building, parked vehicles found within the curtilage are proper subjects of search under that warrant and evidence obtained by the search of those vehicles under such circumstances is admissible to prove the offense with which the defendant is charged. Alexander v. State, 108 So.2d 308 (Fla. 1st DCA 1959).

In Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), the First District Court of Appeal held that the search of an automobile in a driveway parking area was within the curtilage when the search warrant so issued authorized the search of that appellant’s apartment and the curtilage.

Even closer to the instant case is the decision of another sister court in the matter of Stipp v. State, 355 So.2d 1217 (Fla. 4th DCA 1978). Therein, the search warrant authorized a search of a residence and the curtilage thereof. The court held that the parked vehicles within the curtilage were proper subjects to search under the warrant so issued. We agree with the Joyner court and hold that a driveway to one’s residence is within the curtilage of that property. We also agree with the Stipp court that vehicles within the curtilage are proper subjects of search, especially where, as in the case sub judice, the warrant charged the police with the search of vehicles within the curtilage. As such, the Lincoln was subject to search and the evidence seized by that search is admissible to prove the offense with which the defendant is charged.

Also, during the motion to suppress before the trial court the appellee argued an additional point of some consequence which we feel appropriate to address here.

After describing the premises to be searched, including any vehicles found there, the search warrant authorized the seizure of the following:

Cannabis Sativa, a controlled substance, more commonly known as marijuana, and fruits and instrumentalities of a crime pertaining to the importation, possession and distribution of Cannabis Sativa, consisting of documents, charts, notes, maps, wrappings, packaging and labeling materials as well as scales or equipment for measuring tangibles by weight.

When the police swept out the Lincoln Versailles during the search, they found minute particles of marijuana. They also found a title certificate in the glove compartment showing that appellee owned the automobile. They seized the sweepings, the title certificate, and the automobile itself.

Clearly, the police could seize the sweepings because the warrant authorized the seizure of marijuana. However, the title certificate and the automobile were not within the search warrant’s description of property to be seized. Appellee contends that in light of this fact their seizure was illegal because they were neither contraband nor instrumentalities or fruits of crime.

At one time, appellee would have been correct. See Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). However, the United States Supreme Court in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), made it clear that during the course of executing a valid search warrant, the police may seize evidence of a crime provided there is:

a nexus—automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior. Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.

Id. at 307, 87 S.Ct. at 1650, 18 L.Ed.2d at 792.

Measured against the foregoing standard, the police had a right to seize the automobile because it must have been used to carry marijuana, and they had a right to seize the title certificate in order to implicate appel-lee. The fact that our court disapproved the forfeiture of the same vehicle in One 1978 Lincoln Versailles v. State, 388 So.2d 1383 (Fla. 2d DCA 1980), is irrelevant. The tests there and here are different. The owner of the property seized by police may ultimately be entitled to its return, but this does not mean that the seizure was illegal. Warden, Maryland Penitentiary v. Hayden, 387 U.S. at 307-08, 87 S.Ct. at 1650, 18 L.Ed.2d at 792.

Turning now to appellee’s contention that the failure to list the automobile and its contents on the return and inventory voided the warrant. As this court stated in Nofs v. State, 295 So.2d 308 (Fla. 2d DCA 1974), at page 309: “The return of a search warrant is a ministerial act and any failure therein does not void the warrant, unless prejudice is shown.” See also State v. Laiser, 322 So.2d 490 (Fla.1975). In the instant case, appellee did not offer proof that he was prejudiced by the fact that the property was not listed on the return and inventory and without a showing of prejudice, a defect in post-seizure procedure does not render the execution of the warrant illegal. There being no showing of prejudice by appellee, Judge Shafer erred in granting the motion to suppress.

Although, as alluded to above, the trial judge granted the State’s timely motion to toll speedy trial, he denied the State’s motion for a sufficient time to permit the State to bring Musselwhite to trial . after receipt of our mandate. The practicality of this denial would require the State to try Musselwhite on the day we issue the mandate in the case sub judice. This is impracticable and does not follow the Rules of Criminal Procedure.

At the time the court entered its order on May 30, 1980, the jury panel for Mussel-white’s trial had been sworn for voir dire examination and, thusly, the State had satisfied all speedy trial requirements. Fla.R. Crim.P. 3.191(a)(3). State v. Vukojevich, 392 So.2d 297 (Fla. 2d DCA 1980). The trial court erred in denying the State’s motion to permit trial time after receipt of the mandate and that order is REVERSED.

The order granting appellee’s motion to suppress is also REVERSED and the case is REMANDED for further proceedings with instructions to the trial judge to grant to the State the period of time allowed by Fla.R.Crim.P. 3.191(g) to permit trial of Musselwhite after the receipt of this court’s mandate.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Dorothy L. ALLEN, Appellant, v. Arthur E. ALLEN, Appellee.
    No. 80-2305.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.
    Rehearing Denied Sept. 4, 1981.
    C. Gilbert Pierce of Pierce & Punto, Tampa, for appellant.
    John J. Duffy and Carleton L. Weidemeyer of Wightman, Weidemeyer & Maynor, Clearwater, for appellee.
   PER CURIAM.

Dorothy L. Allen (the wife) appeals portions of the final judgment of dissolution of the parties’ marriage. We affirm the trial court’s disposition of the real property involved, but hold it was error for the trial court not to have awarded the wife at least $200.00 per moth permanent alimony in view of the financial circumstances of the parties and the wife’s age and physical condition.

Accordingly, that portion of the final judgment denying the wife alimony is vacated and the cause remanded to the trial court with directions to award the wife permanent alimony of at least $200.00 per month absent a finding of a material change in circumstances. The judgment is otherwise affirmed.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


text:
    Jack J. WEISS, Caroline Weiss, Calaz, N. V., Appellants, v. Robert TIERNEY, Appellee.
    Nos. 80-2416, 80-2427.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 21, 1981.
    Frank, Strelkow & Gay, Manners, Amoon, Whatley & Tucker and Kenneth J. Duckworth, for appellants.
    Ron Brenner, Male, Bodne, Kuperstein & Eisenberg, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Upon consideration of the appeal and the cross-appeal, we affirm the Final Judgment and the Corrected Final Judgment in favor of appellee Tierney with regard to liability, but we reverse the amount of the damage award. Under the express terms of the contract, appellee is entitled to recover $100,000. We therefore remand the cause for entry of a final judgment reflecting this opinion.

Affirmed in part, reversed in part.


text:
    German GOMEZ and Florentino Molina, Appellants, v. The STATE of Florida, Appellee.
    Nos. 80-1328, 80-1329.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 28, 1981.

      Bierman, Sonnett, Beiley & Shohat and Benedict P. Kuehne, Miami, for appellants.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that: (a) the motion to suppress the evidence was properly denied by the trial court as the subject marijuana was observed by a state agent in “open view” prior to any official intrusion upon the defendant’s privacy, which “open view” gave the state agent probable cause to search the defendants’ boat without a search warrant and to seize the marijuana thereon, see e. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted by § 933.19, Fla.Stat. (1979); Ensor v. State, 403 So.2d 349 (Fla.1981); and (b) the motion to dismiss the information for lack of jurisdiction over the offense was properly denied by the trial court because the ground urged in support thereof could only be urged on a sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) or on a motion for judgment of acquittal at trial.

Affirmed.