text:
    William MANSFIELD and Miguel Del Toro, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1948.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 7, 1980.
    Mark King Leban, Miami, Mechanic & Goldstein, North Miami, Spain & O’Donnell, Miami, for appellants.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Defendants Mansfield and Del Toro were each convicted of and sentenced for possession with intent to sell marijuana and unlawful possession of marijuana upon entry of pleas of no contest with a reservation of their rights to appeal. The trial court denied their motions to suppress the marijuana retrieved without a warrant from the locked trunk of an automobile. The issues before this court are the validity of the warrantless search and seizure and defendant Del Toro’s standing to challenge the search and seizure.

While engaged in surveillance of a residence, Officer Green observed defendant Mansfield leave the residence, enter a vehicle, and drive it to the front door. From the doorway of the residence, defendant Del Toro handed packages which looked like “large objects like sacks” to Mansfield. Officer Green called for another officer, who saw Del Toro hand Mansfield what the officer thought was marijuana.

The officers stopped Mansfield as he drove from the residence and arrested him. They obtained the keys to the locked trunk and seized the contraband. Officer Green then returned to the residence and arrested defendant Del Toro.

Earlier that day, Officer Green had observed another vehicle at the residence and had seen two packages and a briefcase placed in its trunk. When that vehicle was stopped, marijuana was discovered, leading to the arrest of two people, Fox and Alexander.

At the hearing on the motion to suppress, the trial court ruled that both defendants lacked standing to challenge the search of Fox and Alexander, and that Del Toro lacked standing to challenge the search of the vehicle Mansfield had been driving. The court held, in addition, that the search and seizure of the packages from the trunk of the Mansfield vehicle was sustainable under the “moving vehicle” exception to the search warrant requirement. We affirm.

We hold that defendant Del Toro had no legitimate expectation of privacy in the packages placed inside the trunk of Mansfield’s automobile as he neither owned nor rode as a passenger in the vehicle. United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Norman v. State, 388 So.2d 613 (Fla.3d DCA 1980).

In addition, we hold that the officers had probable cause to believe the vehicle contained marijuana when they observed readily recognizable large bales wrapped in plastic and burlap being placed into its trunk. The circumstances giving rise to probable cause were enhanced by the officers’ knowledge of the arrest of Fox and Alexander for the possession of marijuana obtained from the same residence earlier that day. Under the exigent circumstances consistent with the departure of the automobile, the officers were not required to obtain a search warrant. Chambers v. Maroney, 399 U.S. 43, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Since no evidence indicates the bales were opened, it is not necessary for us to consider cases discussing the requirement of obtaining a search warrant prior to opening the bales. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). On the other hand, if we infer from the evidence that the bales were opened, we decide that Chadwick does not require a search warrant under the circumstances of this case. We agree that neither defendant had standing to challenge the search and seizure of Fox and Alexander.

For the foregoing reasons, we conclude that the trial court correctly denied defendants’ motions to suppress, and we affirm the convictions and sentences entered by the trial court.


source: Caselaw Access Project

author: PER CURIAM. HUBBART, Judge

license: Public Domain

text:
    Sherolyn Denise HARRISON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2269.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 14, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

The conviction under review will be reversed because the trial court erred in denying the motion to suppress the contraband. See: Royer v. State, 389 So.2d 1007 (Fla.3d DCA 1980); United States v. Mendenhall, - U.S. -, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Reid v. Georgia, - U.S. -, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).

Reversed and remanded for further proceedings not inconsistent herewith.

HUBBART, Judge

(concurring).

I concur in the court’s reversal in this cause solely on the ground that there was no reasonable basis on this record for the police to have conducted a full blown search of the defendant-even assuming, as the state contends, that the police either effected no prior temporary stop of the defendant at the airport or did so based on founded suspicion. As such, the search here was unreasonable and its fruits should have been suppressed by the trial court upon the defendant’s timely motion. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979) cert. denied, 381 So.2d 770 (Fla.1980); Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978); Meeks v. State, 356 So.2d 45 (Fla.2d DCA), cert. denied, 364 So.2d 892 (Fla.1978); Carr v. State, 353 So.2d 958 (Fla.2d DCA 1978); Harris v. State, 352 So.2d 1269 (Fla.2d DCA 1977); Conner v. State, 349 So.2d 709 (Fla. 1st DCA 1977).


author: BASKIN, Judge.

text:
    Michael Angelo SAVOIA a/k/a Michael Anthony Savoia, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-279, 80-374.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 14, 1980.

      Mason & Meyerson and John C. Maine, Jr. and William J. Mason, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We are asked to review in consolidated appeals defendant’s conviction for vehicular homicide under Section 782.071, Florida Statutes (1977), and the revocation of his probation resulting in concurrent sentences of imprisonment.

Defendant Savoia was charged with killing his wife by operating a motor vehicle in a reckless manner likely to cause her death. She was killed when he drove his jeep off the roadway and struck a parked truck. We have jurisdiction to entertain both appeals.

Defendant first proceeded to hearing on the probation violation affidavit. After he was found guilty, defendant agreed to the use of the testimony taken at the probation violation proceeding at his non-jury trial for the substantive offense. He was again convicted and sentenced to concurrent four year terms of imprisonment. We affirm.

The issue to be decided is whether defendant’s conduct was merely negligent and not so reckless as to sustain a finding of guilt for vehicular homicide.

On the night in question, defendant went to a pub, shot pool, and drank some beer. At midnight, accompanied by a friend, James McBeth, he went to meet his wife, Donna, at the airport. On the way, Mr. McBeth purchased a six-pack of beer. Defendant picked up his wife, and they drove in his jeep along the south extension of the Florida turnpike. A witness, Major Kilroy, had noticed the defendant and his wife at the airport. He was on his way home from the airport when defendant and his wife sped past him in their jeep. At that time, the road was slightly wet from a recent rain. The major was able to see a truck parked completely off the road on the shoulder. There were overhead lights. The defendant passed the major, and without hitting his brakes (no brake lights went on), drove the jeep into the back of the parked truck, moving the truck about 200 feet. He later stated he had been cleaning his windshield. The trooper, who investigated the accident, testified that he smelled alcohol on defendant’s breath and saw a beer can in his hand. The speedometer was stopped at 90 miles per hour.

Defense counsel failed to present a motion for judgment of acquittal during the trial for vehicular homicide. Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977). Nevertheless, his appeal challenges the sufficiency of the evidence. We have reviewed the record and the parties’ stipulation that the court base its decision as to defendant’s guilt or innocence upon the testimony taken in the probation violation proceeding. Implicit in that agreement was an understanding that the sufficiency of the evidence would be the subject of an appeal. We will, therefore, treat the issue as though it had been preserved by motion.

An examination of the evidence discloses that defendant had been drinking and driving his car at excessive speeds on a wet road. The legislature has enacted a statute to punish as a third-degree felony reckless driving which results in the killing of a human being. When the degree of negligence falls short of culpable negligence but is more than mere failure to use ordinary care, the offense becomes vehicular homicide. McCreary v. State, 371 So.2d 1024 (Fla.1979). Here, the evidence reveals that defendant Savoia killed another human being by the operation of a motor vehicle in “a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla.Stat. (1977).

For these reasons, the conviction and the probation revocation are affirmed.

      . The state’s challenge to the timeliness of the probation violation appeal is without merit. The supplementary record discloses that defendant’s appeal from the probation violation conviction was filed within 30 days after the trial court re-sentenced defendant Savoia.


author: PER CURIAM.

text:
    CARPET SYSTEMS, INC., Appellant, v. TORO ENGINEERING AND CONSTRUCTION CORPORATION, Appellee.
    No. 80-466.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 14, 1980.
    Patton, Kanner, Segal, Zeller, King & Kubit and Dennis G. King, Miami, for appellant.
    Frank E. Maloney, Jr., Ft. Lauderdale, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).


text:
    Manuel Gonzalez GOENAGA, Appellant, v. The BANK OF MIAMI, Jose L. Carrion, Jose L. Garrigo, and Justo Legido, Appellees.
    No. 80-573.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Rehearing Denied Nov. 7, 1980.
    Richard N. Friedman, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Kendall B. Coffey and Alan T. Dimond, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Burnett v. Rushton, 52 So.2d 645 (Fla.1951); Tropical Park, Inc. v. Jock, 374 So.2d 639 (Fla. 3d DCA 1979); cf., Spillers v. Five Points Guaranty Bank, 335 So.2d 851 (Fla. 1st DCA 1976).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    CITY OF OCOEE, Appellant, v. CENTRAL FLORIDA PROFESSIONAL FIRE FIGHTERS ASSOCIATION, LOCAL 2057, IAFF, and Public Employees Relations Commission, Appellees.
    No. 79-612/T4-451.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.

      Norman F. Burke, Orlando, for appellant.
    Curtis A. Billingsley, Tallahassee, for ap-pellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, the City of Ocoee, appeals from a final order of the Public Employees Relations Commission of February 28, 1979, verifying election results and certifying ap-pellee, Local 2057, Central Florida Professional Fire Fighters Association, as the exclusive bargaining representative of a unit of employees in the city’s fire department.

Local 2057 filed a representation petition with PERC seeking to represent city firemen below the rank of lieutenant. PERC conducted a representation hearing at which two issues were raised; first, whether Local 2057 was a properly registered employee organization and second, whether part-time firemen should be included in the same bargaining unit with the full-time firemen. The hearing officer found that Local 2057 had occasionally failed to timely file registration statements and that its annual financial statements were of little value. He also concluded that part-time firemen were not public employees and in any case should not be included in the proposed unit because of a lack of a community of interest with their full-time counterparts.

PERC ordered a representation election and found that Local 2057 was a properly registered employee organization and that it had remedied its registration defects. PERC also upheld the determination that part-time firemen should be excluded from the bargaining unit. The election was held in December, 1978 and a majority of the eligible votes were cast in favor of Local 2057. PERC verified the election results and the city took this appeal.

While not necessary to the determination of this appeal, we will consider a question raised by appellant because that question will be important to the parties in the conduct of another election: whether PERC improperly excluded part-time firemen from the bargaining unit.

PERC found that the part-time firemen were not properly within the bargaining unit due to a lack of a community of interest. The city contends that this finding is not supported by the record because PERC failed to consider seven criteria delineated in section 447.307(4), Florida Statutes (1977). This section states that in determining a proposed bargaining unit the commission shall take into consideration certain criteria, though there is no designation as to the weight to be accorded to each. While the legislature has sought to guide the commission’s discretion somewhat, the inherent nature of such determination requires that the commission have flexibility to weigh the statutory elements and determine which are most relevant or dispositive in the particular case. See Packard Motor Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Board of Regents v. PERC, 368 So.2d 641 (Fla. 1st DCA 1979). Therefore, this court’s review of the commission’s factual determinations should be limited to asking whether there has been a departure from the essential requirements of law and whether competent substantial evidence exists to support the determination. City of Winter Park v. PERC, 349 So.2d 224 (Fla. 4th DCA 1977).

In the case before us, the record reflects that the part-timers, unlike the full-timers, work an irregular, on call schedule, receive none of the fringe benefits paid to full-timers (except worker’s compensation) and are hired and fired by the assistant fire chief and captain. Rather than a community of interest being present, a potential conflict of interest could logically be inferred.

The city points out that both full and part-timers share the same duties, responsibilities and risks, and cites NLRB v. Meyer Label Co., Inc., 597 F.2d 18 (2d Cir. 1979), in support of its contention that the fire department employees operate as an integral unit and hence, should be within a single bargaining unit. In Meyer, the Second Circuit held that the NLRB’s determination of a bargaining unit was not supported by substantial evidence and the board failed to adequately consider the employer’s specific structure and mode of operations. The court found that’ the bargaining unit as designated split certain employees apart from others even though they were engaged in basically the same work.

Meyer, however, dealt with all full-time employees; in fact the court specifically found that a uniformity of treatment of employees existed regarding hours, benefits and salaries, thus militating in favor of a finding of a community of interest. This is in direct contradiction to the instant case. Meyer, however, is significant in its emphasis on the employer’s specific structure and mode of operations, which the court implied is especially significant where the employer has relatively few employees as in the instant case. Frequently in such situations, the employer organizes operations so that employees can perform as many different functions as possible, as Ocoee appears to have done, and a finding of separate bargaining units could lead to havoc due to separate, independent bargaining. Meyer at 22.

In summary, however, it appears that substantial competent evidence exists to support the designation of the bargaining unit in the instant case. Therefore, we affirm this portion of the order appealed.

The next point the city raises on appeal is whether the Local 2057’s failure to comply with section 447.305, Florida Statutes (1977), bars PERC from ordering a representation election.

Section 447.305, Florida Statutes (1977), provides:

(1) Every employee organization ... pri- or to submitting a petition .. . [for] a representation election, shall . .. register with the commission ....
(2) Every employee organization shall file annually with the commission a financial report . . . containing .. . information in such detail as may be necessary accurately to disclose its financial condition ....
(6) An employee organization which is not registered as provided in this section is prohibited from . . . submitting a petition requesting a representation election. (Emphasis added.)

The city contends that Local 2057 was prohibited from petitioning for a representation election because it had neither complied with the registration requirements nor submitted an appropriate financial statement.

The First District Court of Appeal in Bay County Board of County Commissioners v. PERC, 365 So.2d 767 (Fla. 1st DCA 1978), construed section 447.305(6) as requiring both registration and submission of financial information as a condition precedent to the filing of a petition requesting a representation election.

In North Brevard Hosp. Dist., Inc. v. Florida Public Emp. Comm., No. 11-407 (Fla. 1st DCA May 23, 1980), reh. denied, September 9, 1980, the First District was confronted with a union claim that the registration requirements of section 447.305 were “hyper-technicalities.” The court disagreed declaring that in Bay County it had addressed one of the purposes of the registration requirements-that of having financial and other information regarding the union available for a significant period of time prior to the election so as to allow employees to make an informed free choice in the election. The court then stated, “Every employee organization seeking recognition must, by the terms of the statute and rules, be prepared to submit full credentials, including financial report, at the time it files its petition and to maintain that registration in a current status throughout the proceedings for recognition.” (Emphasis supplied.)

Section 447.305(6) prohibits a noncomplying organization from submitting a petition requesting a representation election. The existence of injunctive relief to enforce this prohibition is evidence that the legislature intended such prohibition to be enforceable. To construe the 1977 statute to allow a non-complying union to petition for an election and then to proceed to satisfy the statutory requirements would be in direct conflict with the cardinal rule of statutory construction that where the language of a statute is so plain and unambiguous as to fix the legislative intent and leave no room for construction, admitting of but one meaning, courts may not depart from the plain language employed by the legislature. 30 Fla.Jur. Statutes § 84 (1974).

Therefore, we conclude that PERC was in error in denying the city’s objections to the election and reverse.

The third point to be considered is whether the city’s request for attorney’s fees and court costs based on the allegation that PERC ignored its statutory commands should be granted.

Section 447.504(3), Florida Statutes (1979), provides:

The court may award to the prevailing party all or part of the costs of litigation and reasonable attorney’s fees . . . whenever the court determines that such an award is appropriate. However, no such costs or fees shall be assessed against the commission in any appeal from an order issued by the commission in an adjudicatory proceeding between adversary parties conducted pursuant to this part.

The first portion of the statute was analyzed in Jess Parrish Memorial Hospital v. PERC, 364 So.2d 777 (Fla. 1st DCA 1978), wherein the court enunciated general principles applicable in determining whether to impose fees and costs against an agency following reversal of its order when it acts within the scope of its adjudicatory responsibilities. The court stated that while no requirement of bad faith or maliciousness exists, courts may properly impose fees and costs either where the fairness of the proceedings or correctness of the action is impaired by material error in procedure or by a failure to follow prescribed procedure. In other words, an agency which does not “conform to and act consistently with the authority delegated” to it may be answerable to a prevailing party in costs and fees. Jess Parrish at 785. On the other hand, courts should be reluctant to impose fees and costs against an agency if, for example, its order is reversed only because the agency erroneously interpreted a provision of law or the agency’s action depended upon a finding of fact which was not supported by competent, substantial evidence.

An assessment of fees against PERC is not indicated because our reversal results from PERC’s erroneous interpretation of the applicable statute (447.305), which is understandable because of lack of court precedent construing the section. It being discretionary in such matters, we shall deny an award.

AFFIRMED in part and REVERSED in part.

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

      . The 1979 Florida Legislature revised section 447.305 which now provides:
      (1) Every employee organization seeking to become a certified bargaining agent for public employees shall register with the commission .. . prior to requesting recognition by a public employer for purposes of collective bargaining and prior to submitting a petition to the commission requesting certification as ah exclusive bargaining agent. Further, if such employee organization is not registered, it may not participate in a representation hearing, participate in a representation election or be certified as an exclusive bargaining agent ....
      (2) A registration shall be renewed annually by filing application for renewal . .. which application shall reflect any changes in the information provided ... in conjunction with the employee organization’s preceding application for registration.... Each application for renewal of registration shall include a current annual financial report ....
      This statute has an effective date of July 1, 1979, and is presumed to act prospectively, absent clear legislative intent to the contrary. See generally, Department of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla. 1978).

      . Section 447.305(6), Florida Statutes (1977): “This prohibition shall be enforced by injunction upon petition of the Commission to the appropriate circuit court.”

      . The Florida Administrative Procedure Act also contains an attorney’s fee provision: “[I]n the event a court reverses an agency’s order, the court in its discretion may award attorney’s fees and costs to the aggrieved prevailing party.” § 120.57(l)(b)(9), Fla.Stat. (1979).

        .See § 447.504(4), Fla.Stat. (1977).


text:
    Susan SUDHOLT, Appellant, v. Lester F. SUDHOLT, Appellee.
    No. 79-843/T4-499.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    J. Russell Hornsby, Orlando, for appellant.
    W. J. Heffernan, Jr., Altamonte Springs, for appellee.

      . Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980).

   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment for dissolution of marriage in which the court found that neither party had established a special equity in the marital home or boat and denied partition of the home.

Prior to their marriage in Missouri in 1974, the wife owned a home and the husband had purchased a sizeable amount of personal property. After liquidating their property and pooling their assets, the parties moved to Florida and used their funds to purchase property within the state. During their marriage, the husband used his fixed income which consisted of $720.00 per month in disability benefits, to support his wife and her children. No children were born of this marriage nor were any expected. Recently, the wife established a lucrative real estate business, income from which was used to purchase the marital home and boat which were both jointly titled. The court recognized a special equity in wife to the extent that she was awarded the furniture, fixtures and appliances located in the marital home.

The wife contends that the trial court erred in not awarding her a special equity in the marital home and the 1973 Glastron boat.

We conclude that the trial court was correct and affirm the denial of the special equity.

The wife contends that in view of Ball v. Ball, 335 So.2d 5 (Fla.1976), Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978), and Lindquist v. Lindquist, 351 So.2d 391 (Fla. 2d DCA 1977), the denial of the special equity “does not comport with Florida law nor with logic and reason.” (Brief for Appellant at 7.) We believe that appellant seeks to extend Ball even further than the supreme court intended. In Ball, the court stated:

[W]e hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entir-eties was supplied by one spouse from a source clearly unconnected with the marital relationship.

(Emphasis added.) Id. at 7.

In the case before us, all of the consideration for acquisition of the home did not come from the wife’s funds. The record reflects that the husband also liquidated his assets and while they were not as great as the wife’s contribution, they were pooled with hers to acquire property in Florida. Then with the husband’s support and encouragement, the wife obtained her real estate license. His funds paid for her schooling and initially helped her establish her real estate business. The test that “all of the consideration . . . was supplied . . . from a source clearly unconnected with the marital relationship” was not met. In fact, the evidence reflected that much of the consideration was derived from sources connected within the marital relationship.

The same analysis applies to the boat as there is no distinction between real and personal property. Lawless v. Lawless, 362 So.2d 302 (Fla. 2d DCA 1978); Merrill v. Merrill, 357 So.2d 792 (Fla. 2d DCA 1978).

The husband has also cross-appealed contending that it was error to refuse his prayer for partition of the marital home. We agree and reverse.

An estate by the entireties is not subject to partition during the marriage of the parties because both are deemed equally interested in the property and their interests are not severable. Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941). After the dissolution, the parties become tenants in common and the property is subject to partition. The supreme court stated in Condrey v. Condrey, 92 So.2d 423 (Fla.1957), that the power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted.

There was nothing demonstrated to justify the trial court’s denial of partition. The wife’s earning ability exceeded the husband’s. His right and interest in the home were equal to the wife’s. To refuse to grant partition would require a showing of need on the part of the wife and an obligation of support by the husband. Neither was proved.

That portion of the judgment denying a special equity in the home and boat is AFFIRMED, the portion denying partition is REVERSED and REMANDED to the trial court for partition of the home.

ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    LIFE INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Margaret E. Del AGUILA, Robert B. Knoll, Walter W. Morris, Jr., and Knoll Associates, Inc., etc., Appellees.
    No. 79-1328/T4-601.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 1980.
    Marjorie D. Gadarian, of Jones & Foster, P. A., West Palm Beach, for appellant.
    Robert T. Burger, Satellite Beach, and J. Daniel Ennis, of Ennis & Northcutt, Indian Harbour Beach, for appellees.
   ORFINGER, Judge.

Appellant, Life Insurance Company of North America (LINA), together with Robert B. Knoll, Walter W. Morris, Jr., and Knoll Associates, Inc., were defendants below in an action brought by Appellee and submitted to the jury on one count in fraud. The jury awarded appellee $34,000 in compensatory damages against all defendants and awarded punitive damages as follows: $65,000 against LINA, $15,000 against Robert B. Knoll, $2,000 against Walter W. Morris, Jr., and $34,000 against Knoll Associates, Inc. LINA appeals the final judgment entered upon the verdict.

Knoll Associates, Inc., and Robert B. Knoll were general agents for LINA, authorized to sell variable annuity contracts for it. Morris was an agent for Knoll Associates and was also so authorized. Knoll Associates had sold appellee’s husband a $50,000 life insurance policy, and when he died, appellee notified the office of his death. The next day Morris appeared at appellee’s home and inquired of her about her plans for investing the proceeds of the policy. Morris represented himself as an agent of LINA, told appellee of his many years of experience in the sale of insurance and annuities and advised her that he was sales manager of Knoll Associates, in charge of life insurance and annuity sales. He also had descriptive folders and pamphlets published by LINA which described various investment possibilities.

After advising appellee that she could not pay LINA directly but that an agent must remit the funds, she deposited the entire $50,000 with Knoll Associates, to be invested in various LINA programs. $15,000 was immediately invested through LINA in a mutual fund. After Knoll and Morris again told appellee that she could not pay LINA directly since the funds must come through an authorized agent, she agreed to purchase a variable annuity with the remaining $35,-000, but to allow Knoll Associates to hold that sum in an interest bearing escrow account and pay for the policy in monthly installments of $500 each. She testified that she would not have given them the money had she not believed them to be agents for LINA. LINA initially billed ap-pellee for the monthly installments, but sent no more bills to appellee after receipt of a letter from Knoll Associates advising that bills to appellee should be discontinued because “. . . she has paid Knoll Associates the full amount and Knoll Associates will make the monthly contribution.”

Knoll Associates paid two monthly installments and converted the remaining $34,000 to their own use. This litigation followed. The jury returned a special verdict in which it found, in answer to specifically framed interrogatories:

1. That Robert B. Knoll made fraudulent representations that were a legal cause of plaintiff’s damages.
2. That Walter W. Morris, Jr., made fraudulent representations that were a legal cause of plaintiff’s damages.
3. That Robert B. Knoll and Walter W. Morris, Jr. were acting within their real or apparent authority of defendant Knoll Associates, Inc., when they obtained monies from plaintiff.
4. That Robert B. Knoll, Walter W. Morris, Jr., and Knoll Associates, Inc., were acting within their real or apparent authority of LINA when monies were obtained from plaintiff.

Appellant’s first point questions the propriety of the instruction given the jury on the subject of agency. Appellant correctly points to a portion of the instruction which was not a complete sentence and which, standing alone, might be confusing. But the correctness of jury instructions is determined not by any one instruction or part thereof, but by the instructions as a whole, and reading the entire agency instructions we cannot say that they were erroneous or misleading. Grimm v. Prudence Mutual Casualty Company, 243 So.2d 140 (Fla.1971).

Much more vexatious, however, is the other point raised by appellant, as follows:

WHETHER THE COURT ERRED IN SUBMITTING THE ISSUE OF PUNITIVE DAMAGES AGAINST LIFE INSURANCE COMPANY OF NORTH AMERICA TO THE JURY AND IN ENTERING FINAL JUDGMENT FOR PUNITIVE DAMAGES AGAINST LIFE INSURANCE COMPANY OF NORTH AMERICA BASED ON LIABILITY FOR AN AGENT’S CRIMINAL CONDUCT WHERE THERE WAS NO PROOF LIFE INSURANCE COMPANY OF NORTH AMERICA HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE THAT ITS AGENT WOULD ENGAGE IN CONDUCT LIKELY TO CAUSE INJURY TO OTHERS.

We are squarely presented with the question of whether a principal can be vicariously liable in punitive damages under respon-deat superior for torts of an agent or employee, when the principal neither authorized nor ratified the tort in the absence of any proof of negligent hiring or of some other negligent act directly attributable to the employer.

There is a sharp split of authorities on the question. Professor Prosser succinctly states the competing views:

Perhaps the chief among the various controversies which have surrounded punitive damages has been over whether they may be awarded against an employer vicariously liable for the tort of his servant, where he has neither authorized nor ratified it. Following a leading federal case, a considerable minority of the courts have held that they can not, laying stress upon the injustice of a punishment inflicted upon one who has been entirely innocent throughout. This is of course particularly true where the employer is a corporation, and the pocket which is hit is that of the blameless stockholders, whom no one wants to punish. The Restatement of Torts has taken this position.
The majority of the courts, however, have held that the vicarious liability of the master for acts within the scope of the employment extends to punitive as well as compensatory damages, even in the absence of approval or ratification, and that this is true especially in the case of corporations, who can only act through their agents. They have been concerned primarily with the deterrent effect of the award of exemplary damages, and have said often enough that if such damages will encourage employers to exercise closer control over their servants for the prevention of outrageous torts, that is sufficient ground for awarding them.

Prosser, The Law of Torts, (1971), p. 12.

We believe that the Florida Supreme Court has elected to follow the line of authority which Prosser refers to as the “majority view”, i. e., that the vicarious liability of the master for acts within the scope of employment extends to punitive as well as compensatory damages, even in the absence of ratification or approval.

In Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936), the Florida Supreme Court explored the question for the first time. The plaintiff in that case had been a customer in defendant’s store. It was alleged that as she left the store she was accosted by defendant’s employer, falsely accused of stealing some merchandise, pushed and shoved back into the store, subjected to abusive language and placed in a small dark room while awaiting the police. She claimed compensatory and punitive damages against the defendant. The jury awarded plaintiff both compensatory and punitive damages and the appeal followed. Defendant (appellant) contended that punitive damages could not be recovered “because defendant is a corporation and nothing has been alleged in the declaration to show corporate authorization or ratification of the wrong done by the corporation’s servant.” The Supreme Court disposed of this argument by holding that the modern trend of authority held corporate masters liable to the same extent as an individual master,

And so a corporation is liable like an individual to make compensation for any tort committed by its agents or employees in the course of their employment, even though the act be done wantonly and recklessly or against the express orders of the corporation principal. See Stenson v. Prevatt, 84 Fla. 416, 94 So. 656.

171 So. at 219.

Appellants in Winn & Lovett next argued that punitive damages against a corporation for wanton torts of its servant could not be recovered unless it was alleged and proved as a basis for such recovery that the corporation employed or retained an incompetent servant with knowledge of his incompetency, or that it is chargeable with some gross misconduct in connection with the servant’s act or that the corporation authorized or ratified the act. Examining the authorities cited to support that portion, the court found that those cases really held:

that in cases brought for recovery of punitive damages against a corporation for the alleged wanton tort of an agent or servant charged with a single specific duty in cases where the agent or servant, without authority, committed a wrong that he was not expressly or impliedly directed to do on the corporation’s behalf, and without any fault or negligence on the part of the controlling officers of the corporation -in ratifying or approving it, the punitive or exemplary damages are not recoverable merely because the agent or servant’s act was of such gross nature as to render the servant subject to such liability. (Emphasis supplied).

171 So. at 220.

The punitive damage award was affirmed.

So far as we can determine, Winn & Lovett is still the law of Florida. Not only has the Supreme Court reaffirmed it, but District Courts of Appeal have followed it as well, either explicitly or in principle. In Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977), the First District would not permit an award of punitive damages against the employer under the doctrine of respondeat superior, holding that some act of the employer, such as negligent hiring or knowledge of the employee’s propensities was necessary before such award could be sustained. But this opinion appears to be in conflict with Winn & Lovett v. Archer, supra, and we cannot support it.

This was a proper case for submission to the jury which found that Knoll and Morris were acting within the real or apparent authority of LINA when they defrauded the plaintiff. The jury could thus assess punitive damages against LINA under the doctrine of respondeat superior.

Finding no reversible error, the judgment appealed from is

AFFIRMED.

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

      . 22 Am.Jur.2d, Damages, § 261 (1978).

      . Buie v. Barnett First National Bank of Jacksonville, 266 So.2d 657 (Fla.1972); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). Other Supreme Court cases have reached the same conclusion, without discussing the principle. E. g. Atlantic Greyhound Lines v. Lovett, 134 Fla. 505, 184 So. 133 (1938).

      . Columbia By The Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963); Mercury Motor Express, Inc. v. Smith, 372 So.2d 116 (Fla. 3d DCA 1979).

      . See concurring and dissenting opinion of Judge Ervin in Ellis v. Golconda Corp., 352 So.2d 1221, 1229 (Fla. 1st DCA 1977) cert. den. Peterson v. McKenzie Tank Lines, Inc., 365 So.2d 714 (Fla.1978), wherein he says that Ai-terman appears to be in conflict with Winn & Lovett v. Archer, supra, as well as the weight of authority, and Judge Ervin’s concurring opinion in Alexander v. Alterman Transport Lines, Inc., 387 So.2d 422 (Fla. 1st DCA 1980). See also, 188 AFTL Journal 8, May 1978 where the editor refers to Aiterman as a “wildcat” case which “flies directly in the face of all of the many other Florida cases as well as most of the decisions throughout the country.”


text:
    Flora E. COCKRELL, Personal Representative for John L. Cockrell, deceased Appellant, v. Gerald A. LEWIS, as Comptroller of the State of Florida, Appellee.
    No. 79-4.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 1980.
    Jonathan D. Kaney, Jr., and J. Lester Kaney of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, and Shirley W. Ovletrea, Asst. Attys. Gen., Tallahassee, for appellee.
   ORFINGER, Judge.

This is an appeal from a final order of the Comptroller upholding the estate tax assessed by the Florida Department of Revenue and denying appellant’s request for a refund. We reverse.

A formal administrative hearing was requested by appellant following which the hearing officer filed a recommended order that appellant be refunded $11,690.11. The Comptroller rejected the recommendation, and entered a final order denying the refund, and from that order this appeal follows.

The facts and legal issues are set forth in the recommended order which we recite in full.

FINDINGS OF FACT

The parties stipulated to the accuracy of the factual allegations in the petition, which are hereby incorporated by reference. A brief recapitulation may be helpful. John L. Cockrell died resident in Florida on September 26, 1977. For federal tax purposes, his gross estate was valued at $746,373.54. Securities held in trust by an Indiana bank, valued at $702,-581.05 on the day Mr. Cockrell died, accounted for the bulk of his estate. Petitioner paid federal estate taxes in excess of the federal credit for estate taxes paid the several states, which credit amounted to $12,349.44. In response to an assessment by Indiana tax authorities, petitioner paid Indiana estate tax in the amount of $11,578.83. Petitioner paid Florida estate tax in the amount of $12,-349.44, together with interest in the amount of $111.28.

CONCLUSIONS OF LAW

Florida law imposes a tax on the transfer of the estate of which petitioner is personal representative in an amount equal to the amount by which the credit allowable under the applicable Federal Revenue Act for estate, inheritance, legacy and succession taxes actually paid to the several states shall exceed . . . [t]he aggregate amount of all constitutionally valid estate, inheritance, legacy and succession taxes actually paid to [Indiana] .... Section 198.02,' Florida Statutes (1977).

In the present case, the ‘credit allowable’ for purposes of Section 198.02, Florida Statutes (1977) is $12,349.44.

Citing Department of Revenue v. Golder, 326 So.2d 409 (Fla. 1976), petitioner argues that the amount of Indiana death taxes actually paid must be subtracted from the ‘credit allowable.’ While conceding that the federal constitution presents no bar to an estate tax by Indiana in the circumstances of the present case, Curry v. McCanless, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339 (1939), respondent contends that the Indiana death taxes, although actually paid, were not owing under Indiana law; and cannot serve to reduce Florida taxes for that reason. See Wells v. Gay, 58 So.2d 690 (Fla. 1952). Petitioner answers that the death taxes paid to Indiana were indeed owed under Indiana Law.

Indiana law imposes an estate tax when ‘the federal death tax credit allowed against the federal estate tax . . . exceeds the total state death taxes actually paid . . . . ’ Ind.Code § 6-4.1-11-1 (1976). Under Indiana law, ‘state death taxes’ are defined to exclude ‘any tax which [like Florida’s] is similar in purpose and character to the Indiana estate tax.’ Ind.Code § 6-4.1-1-12 (1976). Respondent’s argument otherwise is unpersuasive, in light of the interpretation the Indiana tax authorities have given to these Indiana statutes.

Conceding arguendo that, under Indiana estate tax law, estate taxes paid to Florida need not be subtracted from the federal death tax credit, respondent nevertheless maintains that Ind.Code § 6-4.1-ll-2(b) (1976) precludes collection of an estate tax by Indiana in the present case. This subsection prescribes an adjustment for estates of non-resident decedents and provides:

In the case of a non-resident decedent, the Indiana estate tax equals the product of (1) the remainder described in subsection (a) of this section, multiplied by (2) a fraction, the numerator of which is the value of the decedent’s Indiana gross estate and the denominator of which is the value of the decedent’s total gross estate.

Respondent takes the position that the securities held by the Indian bank as trustee are not part of Mr. Cockrell’s ‘Indiana gross estate’ under Indian law, because Mr. Cockrell was domiciled in Florida at the time of his death and has been deemed, for federal tax purposes, to have been the owner of the securities at that time. The situs of intangible personal property depends on the domicile of the owner of the property. The situs of intangible personalty does not turn, however, on the domicile of persons who have no more than an equitable interest in the property. It is «the trustee, domiciled in Indiana, who has legal title to the securities in the present case. Again, respondent’s argument to the contrary is unpersuasive, in light of the view the Indiana tax authorities have taken on this question of Indiana law.

To calculate petitioner’s Florida tax liability, the ‘credit allowable’ of $12,349.44 should be reduced by $11,578.83, the amount of estate tax paid to Indiana. This computation yields $770.61. Since petitioner paid respondent $12,460.72, petitioner is entitled to a refund in the amount of the difference between $12,-460.72 and $770.61.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED:

That respondent refund to petitioner the sum of $11,690.11.

The history of Florida’s inheritance tax laws is described in detail in Green v. State ex rel. Phipps, 166 So.2d 585 (Fla. 1964). What requires emphasis is the fact that Florida has been so determined to protect its residents from inheritance taxes that it proscribes such taxes by a constitutional provision. This constitutional provision and the statutes adopted pursuant thereto only serve to assist the state in receiving the taxes for which a federal credit is allowed, but prohibit any increase in taxes over what would otherwise be paid to the federal government.

The history of the times in which these constitutional provisions were adopted, the language of the provisions themselves and the language of the implementing statutes (too lengthy to quote here) clearly indicate that it was the intent of the people of Florida that the State of Florida would impose such taxes but only such taxes upon estates of decedents as could be paid to Florida and deducted from the federal taxes without increasing by one jot or one tittle the total tax burden upon such estates.

Green v. State, at 589.

Section 198.02, Florida Statutes (1971) the applicable statute here, says:

A tax is imposed upon the transfer of the estate of every person who, at the time of death, was a resident of this state, the amount of which shall be a sum equal to the amount by which the credit allowable under the applicable Federal Revenue Act for estate, inheritance, legacy and succession taxes actually paid to the several states shall exceed the lesser of: (1) The aggregate amount of all constitutionally valid estate, inheritance, legacy and succession taxes actually paid to the several states of the United States (other than this state) in respect to any property owned by such decedent or subject to such taxes as a part of or in connection with his estate, or
(2) An amount equal to such proportion of such allowable credit as the value of the properties taxable by other states bears to the value of the entire gross estate wherever situate.

In this final order, the Comptroller concedes that the Indiana tax assessed and paid here was constitutionally valid, but he says that his interpretation of the Indiana tax statutes makes it clear that Indiana should not have levied the tax because the Florida tax is not similar in purpose and character to the Indiana tax. Therefore, he says, under Indiana law alluded to in the hearing officer’s proposed order, Indiana should have given the estate a complete credit for the Florida assessment, which would have resulted in no tax payable to Indiana.

Two problems exist with this position. First, it is clear from the record that Indiana did not construe its statutes in that manner; that Indiana, like Florida, attempts to get the maximum federal credit; that although not identical, the laws are similar in purpose and character, thus the Florida tax does not qualify for credit in Indiana. Secondly, the Comptroller’s position would force the estate to litigate with Indiana to determine if Florida’s interpretation of Indiana law was correct, and we do not find any support for that position in Florida law.

Indiana law apparently does not restrict collection of inheritance taxes which, when combined with taxes paid other states, exceed the Federal credit, but Florida law does. The maximum tax which can be assessed by Florida under our Constitution and statutes is the amount of the Federal credit less the amount actually paid to other states. The Comptroller’s determination would have the effect of increasing the tax burden upon the estate of a resident of Florida and produces an unconstitutional result. Department of Revenue v. Golder, 326 So.2d 409, (Fla. 1976).

The order appealed from is quashed and is remanded with directions to enter the order recommended by the hearing officer.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Art. VII, § 5(a), Fla.Const.:
      No tax upon estates or inheritances or upon the income of residents or citizens of the State shall be levied by the state, or under its authority, in excess of the aggregate of amounts which may be allowed to be credited upon or deducted from any similar tax levied by the- United States or any state.


author: SCHEB, Chief Judge.

text:
    In re FORFEITURE OF 1979 FORD TRUCK, # VIN F14HNEC1331.
    No. 79-1936.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.
    Stephan P. Lange of Sandstrom & Had-dad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Michael E. McGee challenges the trial court’s order forfeiting his 1979 Ford truck. McGee contends that the court erred because the evidence did not show that the truck was involved in an illegal drug trafficking operation. We agree and reverse.

The state petitioned for forfeiture of McGee’s truck under Section 943.43, Florida Statutes (1979). The state’s petition alleged that the Hendry County Sheriff seized McGee’s vehicle on March 7, 1979, because it had been used to transport a controlled substance in Hendry County.

Two law enforcement officers and McGee testified at the hearing on the petition. The evidence disclosed that Corporal William Teal of the sheriff’s department and Paul Williams, an investigator with the state attorney’s office, were involved in the surveillance of a number of vehicles and individuals believed to be involved in an illegal drug trafficking operation. Teal testified that officers watching McGee’s residence stopped an automobile leaving the residence and, on searching it, discovered sixty pounds of marijuana. Teal then obtained a warrant and searched McGee’s residence, finding small amounts of marijuana. He also discovered five hundred methaqualone tablets in McGee’s 1979 Ford truck parked beside the residence. Investigator Williams testified that sometimes persons who are caught with marijuana also have methaqualone.

McGee testified that he had had no knowledge of methaqualone in his truck prior to the search. He further stated that the keys were in the truck, that other people had access to and, in fact, had driven it. At the conclusion of the hearing, the trial court entered an Order of Forfeiture stating that the Ford truck was used to facilitate trafficking in contraband.

In Griffis v. State, 356 So.2d 297, 302 (Fla.1978), the supreme court held that forfeiture under section 943.43, Florida Statutes (1979), “is permitted only upon a showing of ‘a nexus between the illegal drugs found in the car and the furtherance of an illegal drug “operation.” ’ ” Here, the only evidence connecting the truck with any illegal drug operation was the five hundred tablets discovered in it; there was no evidence showing that the truck had been used to transport marijuana. In addition, the record contains nothing indicating that McGee knew the methaqualone was in the truck, which was readily accessible to others. Therefore, the truck was not subject to forfeiture. In re Forfeiture of 1972 Mercury, 357 So.2d 472 (Fla. 1st DCA 1978).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

HOBSON and CAMPBELL, JJ., concur.


author: RYDER, Judge.

text:
    In re the Marriage of Wanda Lee SCHNEIDER, Appellant, v. Jack B. SCHNEIDER, Appellee.
    No. 79-2257.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.
    Albert P. Lima, of Lima & Elliott, Tampa, for appellant.
    Ronald E. Perez, Tampa, for appellee.
   RYDER, Judge.

Wanda Lee Schneider appeals from the order awarding her attorney’s fees, alleging that the fee was apportioned contrary to a prior agreement and order. We agree and reverse.

The parties obtained a final judgment of dissolution, from which both appealed. The appeals were voluntarily dismissed after the parties stipulated to amendments to the final judgment including that:

The husband shall pay to the wife a reasonable attorney’s fee as set forth in Paragraph H of the Final Judgment of Dissolution of Marriage, said amount to be determined by the trial court upon reasonable notice to the husband and his counsel so that further testimony may be taken, and the husband can present testimony regarding said fee.

After hearing testimony that a reasonable fee would be in the area of $7,000.00, the court found that a reasonable attorney’s fee would be $7,425.00. The court ordered the appellee to pay two-thirds of that fee, or $4,950.00. On rehearing, the court added supplemental fees of $325.00 and costs of $481.07.

' Appellant urges that the court had no discretion at that stage to remake the terms of a valid property settlement as evidenced by the stipulation, and thus could not apportion the fees. We agree that the lower court was bound by the stipulation. See Borowiak v. Borowiak, 341 So.2d 286 (Fla.2d DC A 1977). We note that the agreement provides for award of a reasonable fee to appellant and does not provide for apportionment of that fee. Having found that a reasonable fee was $7,425.00, the court’s judicial labor was complete. The trial court had no lawful basis on which to apportion that fee between the parties.

The order awarding fees is reversed, and the case remanded for entry of an order awarding appellant fees of $7,425.00 and costs of $481.07. We grant appellant’s motion for appellate attorney’s fees, and direct the lower court to determine the amount of a reasonable appellate attorney’s fee to be awarded to appellant.

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


text:
    David M. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-302.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.
    Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

David M. Walker challenges his conviction of possession of heroin with intent to sell, and sale of heroin.

The state charged Walker with two counts of possession with intent to sell heroin, and two counts of sale or delivery of heroin. At trial the court directed a verdict of acquittal on one count of possession and one count of sale or delivery. It then instructed the jury on the two remaining counts, including attempts to commit the offenses charged. During the jury’s deliberations, however, the trial court, at the state’s request and over Walker’s objections, recalled the jury and withdrew the instruction on attempted possession. The jury then returned verdicts of guilty on both the possession and sale or delivery charges, and the trial court imposed a general sentence of five years.

Walker contends that the court erred in withdrawing the instruction on attempt. We agree. Where the attempt to commit the crime charged would itself constitute an offense under Florida law, the failure to instruct the jury on the attempt is error. Brown v. State, 206 So.2d 377 (Fla.1968). We agree with the Fourth District Court of Appeal that attempted possession of cocaine or marijuana is a crime. Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), approved, 340 So.2d 928 (Fla. 1976); Nichols v. State, 248 So.2d 199 (Fla. 4th DCA 1971). It follows that attempted possession of heroin is also a crime. Thus, the trial court properly instructed on attempt, and its withdrawal of the instruction was error.

We also agree with Walker that the trial court erred in imposing a single sentence of five years when he was convicted of two separate crimes. This was an impermissible general sentence and must be vacated. Dorfman v. State, 351 So.2d 954 (Fla.1977).

We have examined and we reject the other points Walker raises on this appeal.

Accordingly, we reverse Walker’s conviction for possession of heroin with intent to sell, and we vacate the sentence on both charges. We remand for a new trial on the possession count, and for resentenc-ing on the sale conviction. Walker has the right to be present at the resentencing hearing. •

HOBSON and RYDER, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Kevin GROOMS, Appellee.
    No. 80-539.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    William A. Patterson of Masterson, Rogers, Patterson, Masterson & Lowe, St. Pe-tersburg, for appellee.
   CAMPBELL, Judge.

Grooms was arrested on September 8, 1979, and released two days later. Subsequently, an information was filed charging him with battery of a law enforcement officer in violation of Section 784.07, Florida Statutes. Grooms did not appear at his arraignment on October 16, at which time a public defender was appointed to represent him, and his trial was set for January 17, 1980. Grooms’ appointed counsel was present when the trial date was announced in open court. A written notice of the January 17 trial date was sent to the public defender’s office and to Grooms on November 27. Grooms’ copy was apparently mailed to the jail from which he had been released earlier. Grooms evidently never received the written notice of trial. On November 28, the public defender was allowed to withdraw because Grooms had retained private counsel. Grooms failed to appear in court on January 17, and a capias was issued for his arrest. He was arrested on January 23 and a new trial date was set for March 25. A motion for discharge was filed on March 21, alleging the state had failed to bring Grooms to trial within 180 days as required by Florida Rule of Criminal Procedure 3.191. The circuit court granted the motion and the state appealed. The state urges that the motion should have been denied because Grooms failed to appear on the original trial date and was, therefore, not continuously available for trial. We agree.

The issue before us simply stated is whether notice to a defendant’s attorney of the date he is scheduled for trial is notice to the defendant. We answer this question in the affirmative.

In Reizen v. Florida National Bank, 237 So.2d 30 (Fla. 1st DCA 1970), Reizen was ordered to appear before the circuit court to be sentenced for contempt or to show cause why sentence should not be imposed. The order was not personally served upon Reizen, but was served upon his attorney. Reizen failed to appear at the show cause hearing and the court entered its order of contempt and sentenced him to ninety days. Reizen sought to set aside the sentence on the ground that he had not received personal notice of the hearing. The First District upheld the sentence upon finding that the proceedings against Reizen were still in progress and his attorney still represented him when the notice was sent. Under these circumstances, the court reasoned service of the notice upon the attorney was proper.

Likewise, in the instant case, neither the proceedings nor the public defender’s representation of Grooms had been terminated when Grooms’ attorney was notified of the trial date. Therefore, the notice to Grooms’ attorney was proper and the knowledge of its contents should have been imputed to Grooms.

Having determined Grooms was charged with notice of the trial date, the fallacy in the trial court’s dismissal of the charges for failure to timely prosecute is apparent. To be entitled to discharge because of the expiration of the 180 day speedy trial time a defendant must be continuously available for trial. Fla.R.Crim.P. 3.191(a)(3). Grooms was not, and accordingly the order dismissing the charge against him is quashed and the case is remanded.

HOBSON, Acting C. J., and GRIMES, J., concur.


text:
    STATE of Florida ex rel. DIVISION OF BEVERAGE of the State of Florida, Appellant, v. Harry Lee MORRIS, Jr. et al., Appellees.
    No. 80-561.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    G. Robert Schultz, St. Petersburg, for appellees.
   SCHEB, Chief Judge.

The state appeals the dismissal of its petition for forfeiture of a motor vehicle.

The petition for forfeiture alleged that Harry Lee Morris, Jr., had used the vehicle to transport more than fifty cartons of untaxed cigarettes in violation of Section 210.-18(1), Florida Statutes (1979). The State sought forfeiture under Section 943.41(2)(c), Florida Statutes (1979), of the Florida Uniform Contraband Transportation Act. This subsection includes “[a]ny equipment, liquid or solid, which is being used or intended to be used in violation of the beverage or tobacco laws of the state” in its definition of contraband. At the hearing Morris moved to dismiss the petition on the ground that cigarettes are not contraband items under Section 943.41(2)(c). The trial court agreed and granted the motion, stating “the cigarettes are clearly not equipment, liquid or solid.”

The state contends that the word solid as used in Subsection (2)(c) is a noun and not an adjective modifying equipment. We agree. Although the Cigarette Tax Law, Chapter 210, Florida Statutes (1979), does not provide for the forfeiture of vehicles used in transporting unstamped packages of cigarettes, the title of Chapter 74-385, Laws of Florida, enacting the Florida Uniform Contraband Transportation Act, provides “for seizure and forfeiture of vehicles illegally transporting or delivering ... tobacco.” Thus, we conclude, as did the attorney general, that the Legislature intended to include untaxed cigarettes in the definition of contraband under Section 943.-41(2)(c). 1976 Op.Atty.Gen. Fla. 076-43 (February 23, 1976). Therefore, since vehicles used in transporting untaxed cigarettes are subject to forfeiture, the trial court erred in granting Morris’ motion to dismiss.

Reversed and remanded for further proceedings consistent with this opinion.

HOBSON and RYDER, JJ., concur.

      . While it occurred after this case, we note that the Legislature has amended the definition of contraband in Subsection 943.41(2) to include “[a]ny personal property including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting the commission of, any felony.” Ch. 80-68, § 1, Laws of Fla.


author: HOBSON, Acting Chief Judge.

text:
    Roy Charles RINER, Appellant, v. STATE of Florida, Appellee.
    No. 80-692.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Riner appeals from his sentence of probation with the special condition that he pay restitution.

Riner’s car struck a car occupied by Rafael Garcia, injuring Garcia. Riner then left the accident scene without stopping. The state charged Riner with leaving the scene of an accident involving an injury, in violation of Section 316.027, Florida Statutes (1977). Riner pled guilty and was placed on probation with the condition that he pay restitution to the victim in the amount of $4,626.95 for damages caused by the accident.

Riner was adjudicated guilty of the offense of leaving the scene of an accident. Section 948.03(l)(g), Florida Statutes (1977), provides that a trial judge may require, as a condition of probation, that a defendant make restitution for “damage or loss caused by his offense.” See Fresneda v. State, 347 So.2d 1021 (Fla.1977); DiOrio v. State, 359 So.2d 45 (Fla. 2d DCA 1978). The trial court, in the instant ease, imposed restitution for all damages resulting from the accident, not just those damages arising from the criminal act of leaving the scene. The imposition of this condition was therefore improper.

Consequently, the judgment of guilt is affirmed and the condition of probation requiring that Riner make restitution is stricken from the probation order.

OTT and DANAHY, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Roberto PINOAMADOR and Ruben Maquera, Appellees.
    No. 79-1666.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Janet Reno, State’s Atty. and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellees.
    Before HENDRY, NESBITT and DAN- • IEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The trial court’s order suppressing certain contraband, purchased from the defendants in the City of Miami by City of Hialeah Gardens police officers while acting in an undercover capacity, is reversed.

As should be obvious, the police officers were not holding themselves out as police officers or in any way asserting their official position at the time they purchased the narcotics from the defendants, and the evidence so procured is not excludable as being obtained by one acting outside of his jurisdiction under color of office, McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980); State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979); State v. Crum, 323 So.2d 673 (Fla. 3d DCA 1976); compare Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962).

Assuming, arguendo, that, as the trial court found, the officers were without authority when, outside of the jurisdiction of Hialeah Gardens, and acting as officers, they met with a confidential informant who provided them information about the defendants, the only rights which could have been affected were those of the confidential informant, which cannot be vicariously asserted by these defendants. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 47, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); McKenney v. State, 388 So.2d 1232 (Fla. 1980). Similarly, the fact that the plainclothes officers were “on duty” and driving an official unmarked city vehicle at the time they purchased the narcotics lends no support to the trial court’s ruling, since it is the assertion of their official position vis-a-vis the defendants that is condemned by the “color of office” doctrine. See State v. Williams, 366 So.2d 135 (Fla. 2d DCA 1979).

Finally, it is obviously inconsequential, again despite the trial court’s contrary finding, that after the officers completed the purchase of the contraband, they announced their identity and arrested the defendants in the City of Miami. The only evidence sought to be suppressed was procured by the police before the arrest occurred.

Reversed and remanded.

      . The trial court also found that this arrest was unlawful under Section 901.25, Florida Statutes (1979). This statute, authorizing a municipal police officer to effect an arrest outside of his jurisdiction when in “hot pursuit,” sanctions an extraterritorial arrest made under color of office. It does not apply to municipal police officers not acting under color of office, see State v. Williams, supra (holding that while a peace officer not in hot pursuit outside of his jurisdiction could not act as a peace officer, he could nevertheless act as a private citizen), as was the case here.


text:
    Mark COOPER, Petitioner, v. The Honorable Jon I. GORDON, Judge of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 80-1448.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for petitioner.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for respondent.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The petition for a writ of mandamus is granted and the respondent is hereby directed to entertain the petitioner’s subject motion which seeks the return of certain monies herein upon a holding that: (a) a writ of mandamus lies to test the correctness of a trial court’s ruling that it has no jurisdiction in a particular cause, Estevez v. Gordon, 386 So.2d 43, 45 (Fla. 3d DCA 1980); (b) the respondent trial judge has jurisdiction in this cause, contrary to its ruling below, to entertain the petitioner’s motion herein for the return of a $500 fine, a $350 restitution payment as a probationary condition, and a $90 probation cost payment as a probationary condition [all previously imposed as a penalty by the trial •court upon petitioner’s conviction for malicious destruction of personal property] as part of its inherent power to correct the effects of its own wrongdoing and restore the petitioner to the status quo ante, Masser v. London Operating Co., 106 Fla. 474, 508, 145 So. 72, 78 (1932), following a reversal on appeal of said conviction and remand for a new trial, Cooper v. State, 377 So.2d 1153 (Fla.1979), quashing, 356 So.2d 911 (Fla. 3d DCA 1978), on remand, 379 So.2d 201 (Fla. 3d DCA 1980); and (c). this jurisdiction was not divested by the trial court’s dismissal of the criminal charges against the petitioner upon remand prior to the filing of the instant motion and hearing thereon as the court’s inherent authority to correct its own prior wrongdoing still obtained. Hazen v. Smith, 101 Fla. 767, 135 So. 813, 816 (1931).

We assume that the issuance of a peremptory writ of mandamus will be unnecessary and that the respondent trial judge upon receipt of this opinion will abide by the directions contained herein.

Petition granted.


text:
    Josefa APODACA, Appellant, v. OLD SECURITY INSURANCE COMPANY, Appellee.
    No. 80-103.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Vernis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Miami, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   PER CURIAM.

The final order under review is reversed and the cause remanded to the trial court with directions to order a new hearing on the appellant’s motion for equitable distribution of personal injury protection benefits upon a holding that the appellee no-fault carrier, contrary to the trial court’s implicit ruling below, has no right to equitable distribution of personal injury protection benefits under Section 627.736(3), Florida Statutes (1974) [since repealed but applicable to the subject accident herein], based in whole or in part on the appellant no-fault insured’s uninsured/underinsured motorist recovery arising from the same accident in which personal injury protection benefits were recovered. Protective National Insurance Co. of Omaha v. Roberts, 287 So.2d 362 (Fla. 3d DCA 1973). Upon remand, the trial court shall consider the no-fault insured’s recovery from the tort-feasor and his insurer in the subject accident in calculating the no-fault carrier’s entitlement to equitable distribution under Section 627.736(3), Florida Statutes (1974)-but not the no-fault insured’s uninsured/underinsured motorist recovery herein-based on the guidelines established in Williams v. Gateway Insurance Co., 331 So.2d 301 (Fla.1976).

Reversed and remanded.


text:
    Carlos CAMPS and Elena Camps, Appellants, v. Rolando CARDENAS, Appellee.
    No. 80-193.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellants.
    Lionel Barnet, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that: (1) the trial court’s refusal to dismiss the mechanics lien count of the operative complaint, although error, was harmless because: (a) the trial court never ruled on the mechanics lien count and never foreclosed such lien in the final judgment, (b) the trial court still had subject matter jurisdiction over the remaining counts of the operative complaint by virtue of a valid good faith claim for an equitable lien pled in said complaint, Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Green v. Putnam, 93 So.2d 378 (Fla.1957); Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So.2d 559 (Fla. 4th DCA 1979); Divine Homes, Inc. v. Gulf Power Co., 352 So.2d 115 (Fla. 1st DCA 1977); Art. V, § 5(b), Fla.Const.; § 26.012(2)(c), Fla.Stat. (1979), which jurisdiction was not divested when the court after trial took no action on the equitable claim of lien and rendered a money judgment for the appellee on the breach of contract claim for less than $2,500, Emery v. International Glass & Manufacturing, Inc., 249 So.2d 496 (Fla. 2d DCA 1971); Tomayko v. Thomas, 144 So.2d 335, 337 (Fla. 3d DCA 1962), cert. discharged, 151 So.2d 272 (Fla.1963); (2) there was no right under the applicable contracts herein to arbitrate the total controversy in this cause, and, to the extent that a right to arbitrate part of the controversy might have existed, such right was clearly waived by the appellants, 4 FLA.JUR.2d, “Arbitration and Award” § 13 (1978) and cases collected; and (3) the other claimed errors urged by the appellants have no merit.

Affirmed.


text:
    Fernando ALLER, Appellant, v. EDITORIAL PLANETA, S.A., a Foreign Corporation doing business in Florida, Publicaciones Espanoles, S.A., Corp., d/b/a Lesa, a Florida Corporation, Appellees.
    No. 80-217.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Tew & Spitler, Joaquin R. Carbonell, Miami, for appellant.
    No Appearance, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order dismissing plaintiff’s complaint without prejudice, for failure of his counsel to appear at a pretrial conference, is reversed because that action was too severe a sanction to visit upon a litigant where the record is devoid of evidence reflecting his willful or flagrant disregard for the court’s authority. For derelictions of this nature, the court is empowered to discipline the offending attorney by contempt or other appropriate punishment. Beasley v. Girten, 61 So.2d 179 (Fla.1952); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971).

Reversed and remanded.


text:
    Lawrence HYMAN, as Executor of the Estate of Jule Hyman, Deceased, Appellant, v. Goldie CANTER, etc., et al., Appellees.
    No. 80-539.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Bailey & Dawes and William Berger, Miami, for appellant.
    Hylan H. Kout, Horton, Perse & Ginsberg, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and LILES, WOODIE A. (Ret.), Associate Judge.
   PER CURIAM.

The orders of the trial court setting aside the default and default judgment entered against Canter and the final judgment on the pleadings entered against the appellee-banks are affirmed upon a holding that (1) the service of process by publication against Canter, whose residence was known to the Plaintiff, was ineffective to obtain personal jurisdiction over Canter and the default and consequent default judgment against her were, as admitted by Hyman, erroneously entered, Sections 49.031 and 49.041, Florida Statutes (1979); (2) where an order of default is invalid, a defendant need not show a meritorious defense in order to be entitled to a setting aside of the default and default judgment, Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980); Mac Organization, Inc. v. Harry Rich Corp., 374 So.2d 81 (Fla. 3d DCA 1979); and (3) the final judgment on the pleadings against the banks, since based on the default judgment against Canter, was correctly vacated, Florida Rule of Civil Procedure 1.540(b)(5) (providing that a court may relieve a party from a final judgment where a prior judgment “upon which it is based has been reversed or otherwise vacated”), see Riley v. Gustinger, 252 So.2d 583 (Fla. 3d DCA 1971).

Affirmed.


text:
    Paul A. DAVIDSON, Leah J, Davidson, and Padlea Equipment Co., a Florida Corporation, Appellants, v. Farouke WARRIS, Appellee.
    No. 80-714.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Marks, Aronovitz & Leinoff and Tod Aro-novitz, Miami, for appellants.
    Levey, Levenstein & Cowan and Robert A Kanziger, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This interlocutory appeal is before us pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) to review the trial court’s order denying appellant’s motion to vacate a clerk’s default. We reverse the order on the grounds that: (1) the stipulated facts presented indicate that the cause had been actively litigated as demonstrated by the various court appearances made, depositions taken, communications between opposing counsel, and the relatively short delay in filing responsive pleadings along with virtually no showing of any dilatory tactics being utilized; and (2) excusable neglect was demonstrated by a showing that defense counsel, upon discovering that defendant’s pleading, though prepared, was not served [a temporary secretary had either not been advised or had not followed office procedure in causing the original to be filed with the clerk and copies sent to opposing counsel] immediately communicated with plaintiff’s counsel to determine the status of the case. Upon being advised that an application was made to the clerk to enter a default, defendant’s counsel promptly ascertained that a default had indeed been entered. Defense counsel then filed a motion to set aside or vacate the default, which was accompanied by affidavits attesting to the facts indicated herein.

Florida courts are committed to a policy of liberality in vacating defaults, North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962) and where there is a reasonable doubt upon the granting or denial of a motion to vacate, that doubt should be resolved in favor of the movant. State Bank v. Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40 (1931).

Reversed and remanded.


text:
    NATIONAL PREMIUM BUDGET PLAN CORPORATION, Appellant, v. ALL AMERICAN ASSURANCE COMPANY, Appellee.
    No. 80-1283.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.

      Meyers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman, Miami, for appellant.
    Smathers & Thompson and George Vol-sky and Jose R. Garcia-Pedrosa, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ„ and LILES, WOODIE A. (Ret.), Associate Judge.
   PER CURIAM.

The order of the trial court setting aside a default and default judgment entered against All American Assurance Company is reversed with directions that the judgment in favor of National Premium Budget Plan Corporation be reinstated.

Excusable neglect sufficient to warrant vacating a default is not shown by mere proof that the defendant relied upon another to defend the action, see Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977); White v. Spears, 123 So.2d 689 (Fla. 3d DCA 1960). Nor does proof that the defendant, after being served with the complaint, moved its corporate offices, where such move did not involve losing, misplacing or misfiling of the complaint, compare North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976), or a failure to follow corporate procedures, Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972), establish excusable neglect. Where, as in the present case, counsel for the defendant, in possession of the complaint and fully aware of the precariousness of the defendant’s position some four months before entry of the default judgment, compare Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So.2d 530 (Fla. 3d DCA 1980), failed to move to vacate until after judgment was entered and nearly a year after service was effected, the trial court grossly abused its discretion in setting the default and default judgment aside.

Reversed.


author: COWART, Judge.

text:
    In the Interest of G. E. G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 78-1929/T4-199.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

In an adjudicatory hearing on a delinquency charge that the appellant-child had violated the law prohibiting the possession of cannabis, the State produced the baggie taken from the appellant, had it marked as an exhibit for identification purposes only, elicited testimony from the State’s chemist that the contents was cannabis, but failed to formally introduce the baggie or contents into evidence.

Appellant relies for reversal on Alexander v. State, 288 So.2d 538 (Fla.3d DCA 1974), a drug case where, reversing a conviction, the Third District Court of Appeal said:

The packets .. . having been marked for identification, but not introduced into evidence, defendant was denied thereby of a real opportunity to cross-examine the witnesses of the prosecution. For a mere formal proffer of an opportunity to cross-examine, where the circumstances as in the case at bar are such that the accused cannot effectively avail himself of it, is not a sufficient observance of the right.
288 So.2d at 539.

In Smith v. State, 305 So.2d 868 (Fla.3d DCA 1975), the same court did not follow the reasoning in Alexander and held that no right of confrontation or cross-examination was denied when the State introduced photographs of a stolen power saw but not the saw itself.

Also, since Alexander, drug convictions based only on the testimony of a chemist, where the drug was unavoidably consumed in the testing, have been upheld. State v. Atkins, 369 So.2d 389 (Fla.2d DCA 1979); State v. Herrera, 365 So.2d 399 (Fla.3d DCA 1978).

This is not a case where some right of an accused to examine tangible inculpatory evidence has been violated because of its willful, negligent, or unnecessary loss or destruction by the State. See Stipp v. State, 371 So.2d 712 (Fla.4th DCA 1979), and cases cited therein.

In criminal cases in which an essential element is the possession of a particular substance identifiable only by chemical analysis, such as drugs, as distinguished from cases involving objects that can be identified from common experience, such as burglary tools or firearms, the primary evidence of the identify of the chemical substance is not the substance itself but the testimony of the chemist. The chemist, and not the substance, is the witness which the accused can confront and cross-examine. The confrontation provision of the sixth amendment of the Constitution of the United States is restricted to “witnesses” and does not include physical evidence. State v. Armstrong, 363 So.2d 38 (Fla.2d DCA 1978). In this case, the cannabis in question was available and counsel for the accused did cross-examine the State’s chemist. Therefore, we decline to follow Alexander and the appellant’s delinquency adjudication and commitment is

AFFIRMED.

ORFINGER and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Louis VERNELL, Appellant, v. EDGE, INC., a Florida Corporation, Appellee.
    No. 80-120.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Louis Vernell, pro se.
    Stephen M. Stone, Orlando, and William J. Berger, Miami, for appellee.
   ON MOTION TO REMAND FOR NEW TRIAL

SHARP, Judge.

Appellant filed a notice of appeal from a final judgment. Subsequently it was discovered that the stenographic notes of the trial court proceedings were lost. The parties were unable to agree on a stipulated statement of the proceedings pursuant to Florida Rules of Appellate Procedure 9.200(b)(3). Therefore the final judgment appealed from is vacated and this cause is remanded for a new trial on the merits.

REMANDED.

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


author: DAUKSCH, Chief Judge.

text:
    Budagail S. KIRCHMAN, Appellant, v. Kenneth P. KIRCHMAN, Appellee.
    No. 78-2410/T4-281.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.

      Jack B. Nichols and Harold L. Downing of Nichols & Associates, P. A., Orlando, for appellant.
    J. Cheney Mason and Donald A. Lykke-bak, Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a marriage dissolution action.

The first point on appeal challenges the method by which the trial court dealt with a major asset of the parties. In examining the transcript of the findings of the trial court and comparing those declarations with the judgment, we find some difficulty in determining exactly how the trial court meant to treat the capital stock of Florida Software Services, Inc., which stock was titled in the husband’s name alone. The appellant claimed a special equity in a portion of the capital stock and the court specifically found no special equity.- However, the court did make the statement: “I think it would be an absolute catastrophe and a sin for this court to permit Mrs. Kirchman to have any financial interest in the company after this case was over.” There are also indications from the record that the trial judge felt that Mrs. Kirchman was entitled to take from her husband a portion of his assets to equalize the assets of the parties upon dissolution. This is reflected by the statements of the trial judge:

Now, I obviously cannot sit here and tell you that I state for sure exactly what the value of that company is. I am in the posture of making a very educated guess solely upon the testimony that’s been presented before me here. The value suggested was anywhere between two hundred and fifty thousand dollars, all the way up to two million five hundred thousand dollars. That’s quite a spread. I was able to go ahead and come up with a figure and feel fairly confident with it because I knew in the back of my mind that in the event I was wrong, if I did set what the value of the company was specifically at this time, you know, March the 2nd, nineteen hundred and seventy • eight, that if the company went under on December the 30th of nineteen hundred and seventy-eight and the value turned out to be three hundred percent less than what I said it was, whatever, that a modification petition could come in and we could go ahead and make the necessary adjustments. Also, I knew that in the event that the value that I set was one half of what it really was and it was twice the amount, and if subsequently proved that the value significantly increased, and there was still corresponding need, and that type of thing, that I could go ahead and make an adjustment. So, knowing that, I didn’t feel pushed really to have to come up with a very difficult task of really nailing down what the exact figure was, but I did the best I could with all the testimony that came in. And, in my opinion, that the value of the company as of today is seven hundred fifty thousand dollars. So, I’ve set that value as that side of the asset. I’ve put that on the husband’s side of the ledger which means now he’s starting off with seven hundred and fifty thousand dollars.
Now, getting down to the alimony situation. This was the most difficult area to work in. It’s obvious to me I’ve got to supply-in order to try to offset the tremendous assets I’m giving to the husband~the value of those stocks. I’ve got to try to go ahead and set out periodic alimony for the wife and, yet, I’m looking at a depreciated cash flow situation as far as the husband goes .... I’ve got to go ahead and make it as easy as possible during this transition period.
I believe the wife is going to have to eventually get out and work. It’s obvious that she’s been sitting back praying for a miracle, and that miracle hasn’t been forthcoming, and I can’t perform any miracles. So, I need for her to have, you know, something to get by on. • Initially a little bit more because now’s the critical time as far as she goes. And, as the months and years go by, reduce it so that her need won’t be as great.

In the judgment the trial court then awarded alimony from the husband to the wife in the amount of $2,500.00 per month for six months; $2,000.00 for the next thirty months; $1,500.00 for the next twenty-four months and $600.00 for the next one hundred eighty months.

While it appears the trial court was attempting to do equity between the parties to give the wife a portion of the husband’s assets, it becomes more apparent upon deeper consideration that equity was not done. Although the attempt to balance the assets was done through periodic alimony payments, it was not done in any method heretofore recognized proper under the law.

There are three recognized types of alimony. The first is permanent periodic alimony which is used generally to provide support from a financially able former spouse to a financially needy former spouse. The second is rehabilitative alimony which is from a financially able former spouse to a financially needy former spouse to assist the needy in adjusting to a new life and to aid in obtaining new skills, education and/or other rehabilitation. Rehabilitative alimony is for a set period of time and ofttimes for a specific purpose such as obtaining a degree or a skill and a return to the labor marketplace. The last recognized form of alimony is called lump-sum alimony and that is generally recognized as an alternative to one of the two foregoing types of alimony and is not for the recognition of a special equity to the receiving former spouse but has been used to balance assets acquired during the marriage between the parties. Our Supreme Court has given us a rather generalized description of the forms of alimony, equity and special equity in the recent decision of Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). The various types of alimony can be used in combination to provide for the needy spouse after dissolution. Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975). Alimony is not to be used to pay off a debt from one spouse to another. Spears v. Spears, 148 So.2d 564 (Fla. 1st DCA), aff’d mem., 156 So.2d 912 (Fla.App. 1963). See also Black v. Black, 247 So.2d 775 (Fla. 3d DCA 1971).

Here, the trial judge referred to his award as “periodic alimony” in the transcript and denominated it merely “alimony” in the judgment. We do not know if he means periodic rehabilitative alimony, periodic permanent alimony or lump-sum alimony paid in periodic installments. Because of the nature of the award, the schedule of declining amounts terminating at a fixed date, it is not periodic permanent alimony because that kind of alimony continues throughout the unremarried life of the recipient and cannot be terminated unless there is a showing, in the future, of no longer a need on the part of the recipient or there is a showing of a lack of ability on the part of the donor. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). This award cannot be deemed rehabilitative alimony because there is no specific finding by the trial court regarding the need for rehabilitation or a plan to do so and thus is not tied to any specific rehabilitative purpose. Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 737 (Fla. 1975). See Melvin v. Melvin, 265 So.2d 414 (Fla. 3d DCA 1972) (alimony must be either rehabilitative or permanent). This award is rather like lump sum alimony paid periodically, but again, we find nothing in the record from the many declarations of the trial judge to indicate that is what he had in mind.

Rather than following the legally recognized forms of property division, either by way of recognizing a special equity or a lump- sum alimony award, it seems the trial judge has hybridized and tried to form a new type of alimony which he simply calls “periodic alimony.” It can be quickly seen however that this is not an equitable award especially to the appellant. If we assume this is an award of permanent alimony for support, then it will terminate upon the death or remarriage of the wife. If she wants the income then she is prevented from remarrying. Additionally, her estate would not receive the money after her death. So, if the trial judge meant to balance the assets between the parties, then the death or remarriage would thwart that intent. The same applies in this case if he meant it to be rehabilitative alimony. Additionally, if this award was meant to balance the assets or equalize the assets between the parties, the trial judge should have taken into account the tax consequences of the award, which the parties would have done had they been able to devise their own property settlement agreement. From the periodic payments the wife will pay income tax and the husband will receive a deduction from his tax payments. The trial court specifically found no special equity in the shares of stock, yet he referred to the fact that these parties “had a partnership, we had a marital partnership which was also a business partnership, and you all are where you are today because of each other. ...” Also, the trial judge found, “I do feel each of you should come out of this relationship with approximately, approximately as far as where the existing assets go, the same, and close as we can.” The tax man will prevent that equalization of assets in the formula used here. It was at this point the trial judge made the earlier referred to statement about it being a catastrophe and a sin to permit Mrs. Kirch-man to have any financial interest in the company.

Mrs. Kirchman either has a special equity in the shares of stock or she does not. The trial judge needs to review this case and clarify his findings based on the record and, if it is his determination that she has acquired a special equity, then he should so find and legally recognize, in some manner but not necessarily a transfer of stock. It is very difficult for us to review this case and determine what the findings of the trial court are because they are conflicting in many instances.

Additionally, the judgment itself is lengthy and not limited to the resolution of legal rights and responsibilities; much of it contains legally unenforceable matters.

The award of the marital home as lump sum alimony to the wife is affirmed. Point II in the appellant’s brief argued that “it was reversible error per se for the trial court to base its verdict upon its own beliefs and personal ideologies rather than upon the applicable law and the facts presented at trial.” The appellant has not pointed to any specific result of the ideological determinations which amounted to error in the legal sense, except as set out here in regard to the alimony. The appellant has also challenged the failure of the trial court to award permanent periodic alimony to the wife. Because we are reversing the alimony portion of the judgment, we shall not at this point speak to the issue of permanent alimony.

As to Point IV, we find no error in regard to the award of attorney’s fees because that matter is within the discretion of the trial judge. Canakaris.

This cause is remanded for entry of a proper judgment dealing specifically with the issues of alimony and special equity in the shares of stock. Should the evidence support it and the trial judge in his sound discretion deems it proper, a distribution of the assets of the parties can be effected through the use of lump-sum alimony paid periodically. Canakaris. Upon remand the trial court may take such additional evidence as is deemed necessary, or may base its judgment upon the evidence previously admitted.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, J., and EVANS, VERNON W., Jr., Associate Judge, concur.


text:
    William Allen BURHAM, Appellant, v. STATE of Florida, Appellee.
    No. 79-27.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980).

ORFINGER, SHARP and COWART, JJ., concur.