text:
    Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 61606.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Patrick D. Doherty of Gross & Doherty, Clearwater, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On January 6, 1982, Governor Graham signed a death warrant for Ernest John Dobbert, and on January 7, 1982, Dobbert filed a motion to vacate his death sentence. He later filed an addendum to his motion to vacate, and after a hearing, the trial court denied Dobbert’s motion. Dobbert now appeals the denial of his motion to vacate and requests this Court to enter a stay of execution. Finding that the trial court correctly denied Dobbert’s motion to vacate, we affirm. We also deny his motion for stay of execution.

In April 1974, Dobbert was convicted of the first-degree murder of his nine-year-old daughter and was sentenced to death for this murder although the jury recommended life imprisonment. He was also convicted at that time of the second-degree murder of his seven-year-old son, child torture of another son, and child abuse of another daughter. His convictions and sentences were affirmed by this Court. Dobbert v. State, 328 So.2d 433 (Fla.1976). Our judgment was affirmed by the Supreme Court of the United States. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Subsequently, this Court entered an order pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), asking the trial judge whether he had imposed sentence on the basis of any information not known to Dobbert. Dobbert asserted he had not been furnished a copy of the presentence investigation report. By order entered March 31, 1978, we relinquished jurisdiction to the trial court with directions to vacate the death sentence and to give Dobbert an opportunity to respond to this report. After giving Dobbert another plenary sentencing hearing, the trial court resentenced him to death. He appealed, and we again affirmed the sentence of death. Dobbert v. State, 375 So.2d 1069 (Fla.1979). Certiorari was denied by the Supreme Court of the United States. 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). Dobbert was originally scheduled to be executed on July 22, 1981, but the Supreme Court stayed execution pending its disposition of writ of certiorari from our decision in Brown v. Wainwright, 392 So.2d 1327 (Fla,1981), to which Dobbert was a party. Certiorari was denied by the Supreme Court on November 2, 1981. Brown v. Wainwright, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

In his motion to vacate his death sentence, Dobbert alleged as grounds for relief that he was denied his sixth amendment right to a fair trial because the State, in the Fourth Judicial Circuit, had systematically exercised peremptory challenges to exclude persons who had scruples against imposition of the death penalty; that the Supreme Court of Florida may have improperly considered psychiatric examinations in some death appeals; that the Supreme Court of Florida’s construction of the aggravating circumstance of “heinous, atrocious, or cruel” is overbroad, thereby rendering its application unconstitutional; that the trial court considered nonstatutory aggravating factors; and that the imposition of the death penalty in his case constituted cruel and unusual punishment. In an addendum to his motion to vacate, Dobbert alleged that the trial court erred in imposing the death sentence after a jury recommendation of life.

In denying Dobbert’s motions, the trial court held, as to his sixth amendment claim, that neither the record nor pleadings take this case beyond the scope of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and that Dobbert did not demonstrate prejudice. Relative to our alleged consideration of psychiatric reports, the trial court held that this point was resolved adversely to Dobbert in Brown v. Wainwright. The trial court also held that the validity of the aggravating circumstance of heinous, atrocious, or cruel had been addressed by this Court in the direct appeals, that a reading of the trial court’s sentencing order belied Dobbert’s contention that it had considered nonstatutory aggravating factors, and that this Court had already determined that imposition of the death penalty in Dobbert’s case does not constitute cruel and unusual punishment. As to the issue raised in the addendum, the trial court ruled that Dobbert was not entitled to post-conviction review of the jury override.

Before this Court, Dobbert initially contends that he was denied due process of law and his sixth amendment right to a jury composed of a fair cross section of the community because, he alleges, a study conducted by Professor Winick of the University of Miami School of Law shows a pattern of abuse by the state attorney’s office in the exercise of its peremptory challenges. He claims that the study shows that the state attorney’s office in the Fourth Circuit has systematically used its peremptory challenges to excuse prospective jurors who are “death scrupled,” that is, those who expressed some opposition to the death penalty. Professor Winick testified at the hearing on the motion to vacate that he had conducted an empirical study of the jury selection practices by prosecutors in capital cases in the Fourth Circuit from 1974 through 1978 to determine how the prosecutors used their peremptory challenges in the formation of a capital jury. He claimed that the voir dire of 1,103 prospective jurors in twenty-seven cases was examined. Of these 1,103, 146 indicated disagreement with or problems with the death penalty and were classified by Professor Winick as “death scrupled.” Of the 1,103, 587 were subject to prosecutorial peremptory challenge, and of this 587, 51 were, according to Professor Winick, “death scrupled.” Of these 51, 13 actually served on a jury.

Dobbert’s argument that he was denied his right to due process of law by the State’s exercise of its peremptory challenges is predicated on an attempted synthesis of Swain v. Alabama and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Swain v. Alabama, a Negro convicted of rape by an all-white jury appealed his conviction, contending that there had never been a Negro on the petit jury in either a civil or criminal case in Talladega County, Alabama, and that in criminal cases prosecutors had systematically exercised their strikes to achieve this result. Swain had objected to the jury selection in the trial court immediately after the jury was selected and had moved to have the jury declared void on fourteenth amendment grounds. The Supreme Court held that the striking of Negroes in a particular ease is not a denial of equal protection. It dealt at great length with the nature, history, and importance of the right to exercise peremptory challenges which it described as an integral part of trial by jury. The peremptory challenge, it explained, is one exercised without a reason stated, without inquiry, and without being subject to the court’s control. It permits rejection for real or imagined partiality not easily designated or demonstrat-. ed and is not infrequently exercised on grounds not normally thought to be relevant to legal proceedings, such as race, religion, nationality, or affiliations of people summoned. This is the nature of the peremptory challenge, and this is as it should be to guarantee the fairness of the trial by jury. The Supreme Court further explained:

In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterward. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

380 U.S. at 221-22, 85 S.Ct. at 836-37.

The Supreme Court, however, viewed the broader issue in Swain relating to the alleged systematic use over a period of years of peremptory challenges to excuse jurors on the basis of race in a somewhat different light. Although finding that the prosecutor has broad discretion in the exercise of his peremptory challenges, it concluded:

We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. Cf. Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]. In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.

380 U.S. at 223-24, 85 S.Ct. at 837-38 (emphasis supplied). The Court held, however, that the record before it was not sufficient to demonstrate that the rule was violated by the peremptory system as it operates in Talladega County.

Although Swain involved a contention of discrimination based on race, Dobbert seeks to extend the concepts enunciated in Swain relative to the prosecutor’s abuse of the peremptory challenges to ideological groups as well. He attempts to apply the Swain test in combination with Witherspoon v. Illinois and argues that the Winick study meets the Swain test.

In Witherspoon, the Supreme Court held that a death sentence cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced their general objections to the death penalty or expressed scruples against its infliction. The Court in that case was reviewing Illinois’ procedure which gave the prosecution unlimited challenges for cause to exclude those jurors who might hesitate to return the death sentence.

The general rule applied by the Supreme Court in Swain is that peremptory challenges may be exercised freely and without explanation or justification. The Court recognized that there may be an exception to the general rule where, over a period of time, the State has systematically exercised its peremptory challenges to exclude all Negroes from juries for a reason wholly unrelated to the outcome- of the particular case on trial and where the peremptory system is being used to deny Negroes the same right to participate in the administration of justice enjoyed by the white population. There is nothing to indicate, however, that the Supreme Court would extend the exception made by Swain based on this systematic exclusion of Negroes to other systematic exclusions not based on prejudice. We need not resolve that issue in this case because, even if we were to conclude that the Swain exception was applicable in this type of case, Dobbert has failed to demonstrate that either his right to due process or his sixth amendment right to an impartial jury has been violated. We hold that neither the record nor the pleading, including the study by Professor Win-ick, are sufficient to move this case beyond the general rule of Swain v. Alabama.

Furthermore, we find that Dobbert has waived any right to challenge the jury based on the rationale of Witherspoon by his failure to object at trial to the State’s peremptory challenges to the jury panel. Recently, in Maggard v. State, 399 So.2d 973 (Fla.1981), we considered the necessity for an objection when a Witherspoon violation is claimed, and we explained the reason for requiring an objection. We pointed out that this requirement is entirely reasonable in view of the fact that it is certainly possible that defendant himself did not want a particular juror to serve and was perfectly content with the State’s peremptory challenge of a “death-scrupled” juror so that he would not have to exercise one of his peremptory challenges.

Without objection having been made, we have no way of knowing whether Dobbert was satisfied with the dismissal of these prospective jurors as a result of the State’s use of its peremptory challenges. In fact, in this case, the record of the voir dire reveals that Dobbert himself peremptorily challenged two “death-scrupled” jurors and agreed with the State that a third should be dismissed for cause. If the State had peremptorily challenged these jurors, Dobbert would not have had to use two of his challenges.

Also, although we conclude that Dobbert has failed to demonstrate that any of his constitutional rights were violated by the State’s exercise of its peremptory challenges, we note that, in any event, he was not prejudiced. The jury in his case recommended life. He claims that had there not been these peremptory challenges of “death-scrupled” jurors, the jury may have returned a unanimous life recommendation rather than a 10:2 life recommendation. This argument is frivolous. Florida’s death penalty statute states that the jury’s life or death recommendation shall be by a majority of the jury. No different test is applied in imposing and reviewing a sentence of death after a 10:2 recommendation of life than is used in imposing and reviewing a sentence of death after a unanimous jury recommendation of life. In fact, in most cases, the trial judge and this Court know only that a majority of the jury has recommended life or death. Nothing more is required because it is not material what number of the majority of the jury recommends a sentence of death or recommends a sentence of life.

Dobbert again attempts to challenge the trial court’s override of the jury’s life recommendation. We have already resolved this issue against Dobbert. In Dobbert v. State, 375 So.2d 1069 (Fla.1979), we applied the test of Tedder v. State, 322 So.2d 908 (Fla.1975), and concluded that the facts suggesting the death sentence in Dob-bert’s case are so clear and convincing that virtually no reasonable person could differ. Dobbert's reliance upon Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), is without foundation. Because of the substantial differences between the sentencing procedures of Florida and Missouri, BuIIington is clearly distinguishable from the present case.

He next contends that certain psychological reports were considered by this Court in some death cases and not in others. He then alleges that our failure to consider his favorable psychological report violated his right to equal protection of the laws. This issue has already been resolved against Dobbert in Brown v. Wainwright, in which Dobbert was a named party. In Brown, we explained that our role after the death sentence is imposed by the trial court is merely to review and is not to impose the death sentence, and we said:

Even if petitioners’ most serious charges were accepted as true, as a matter of law our view of the non-record information petitioners have identified is totally irrelevant either to our appellate function in capital eases as it bears on the operation of the statute, or to the validity of any individual death sentence.
The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role. Indeed, our role is neither more nor less, but precisely the same as that employed by the United States Supreme Court in its review of capital punishment cases.

392 So.2d at 1331-32.

We also reject Dobbert’s contention that the aggravating circumstance of heinous, atrocious, or cruel has been rendered void for vagueness by its application. As recently as 1979, we have reaffirmed the trial court’s finding that Dobbert’s “shockingly evil and unnecessarily torturous” murder of his nine-year-old daughter was especially heinous, atrocious, or cruel. Dobbert v. State, 375 So.2d at 1071.

Dobbert’s contention that the court considered nonstatutory aggravating factors is a matter that could have and should have been raised on direct appeal and is not a proper subject matter for post-conviction relief. Moreover, we agree with the trial court’s holding in its order denying the motion to vacate that the sentencing order of the trial court belies this contention.

Finally, we find no merit to Dob-bert’s claim that imposition of the death penalty in his case constitutes cruel and unusual punishment. On direct appeal of his sentence of death, we held that the death penalty was warranted in light of the totality of the circumstances. Dobbert v. State, 375 So.2d at 1071.

Accordingly, finding no error in the trial court’s denial of the motion to vacate, we affirm, and we deny the motion for stay of execution.

No motions for rehearing will be entertained.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Jeffrey Michael HURST, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-197.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Rehearing Denied March 10, 1982.
    Bill Salmon, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   SHAW, Judge.

Appellant was arrested and charged with possessing and delivering controlled substances, possessing paraphernalia and carrying a concealed weapon. The paraphernalia count was dismissed on October 21, 1980, and appellant entered a plea of nolo conten-dere to Count II of the information charging him with delivery of a controlled substance. He specifically reserved his right to appeal the trial court’s denial of his motions to suppress physical and oral evidence obtained as a result of an alleged illegal arrest, information obtained via the “body-bug” placed on the confidential informant, and items seized from his pickup truck pursuant to an allegedly defective search warrant.

On April 24, 1980, Sonny Huddleston was stopped by officers of the Narcotics and Organized Crime Unit of the Gainesville Police Department and told that he would be arrested unless he cooperated with the officers. The next day Huddleston, acting as an undercover agent, contacted the defendant at his home by telephone and made arrangements to meet him behind the Maas Brothers Store in Gainesville, Florida. This conversation was recorded without benefit of a warrant or court order. Pursuant to arrangements made over the telephone, Huddleston and the defendant met at approximately 1:00 p. m. on April 25, and Huddleston entered the defendant’s vehicle wearing a “bodybug.” As a result of a drug-related conversation overheard by the officers, the appellant was removed from his truck and detained while a search warrant was obtained. A search of the vehicle disclosed a quantity of methaqualone in a closed shopping bag on the seat.

It is the appellant’s position that the war-rantless interception of the private communication conducted in his vehicle was a violation of his expectation of privacy as guaranteed under Article I, Section 12 of the Constitution of the State of Florida, a violation made even more grievous by the coercive manner in which the cooperation of the confidential informant was obtained. It must first be noted that the Florida Constitution prohibits only “unreasonable” interception of private communications by any means.

Florida has recognized as reasonable the authority of a police officer to intercept an oral communication where one of the parties to the communication has given prior consent to the interception. Section 934.-03(2)(c), Florida Statutes (1977). Except insofar as it authorizes a warrantless interception of a private conversation conducted in the home, this statute has survived constitutional attack. State v. Sarmiento, 397 So.2d 643 (Fla.1981).

In this instance the recorded conversation leading to the issuance of a search warrant took place in the appellant’s truck. This court in Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981) held that a motel room is not the functional equivalent of a home for the purpose of applying Sarmien-to and does not invoke the same expectation of privacy. We feel that this observation can be made in regard to the conversation overheard in the appellant’s truck. Having determined that the conversation is admissible for the purpose of establishing probable cause for the issuance of the warrant and that the warrant itself was neither false nor misleading, we conclude that the trial judge was correct in his denial of appellant’s motions to suppress. We are equally unimpressed by appellant’s argument that Huddleston’s consent to the interception of the communication was not voluntary because it was given in exchange for the resolution of a criminal offense committed by him. See State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980).

The order is AFFIRMED.

JOANOS, J., and MASON, ERNEST E. (Retired), Associate Judge, concur.


author: SHARP, Judge.

text:
    HEINTZELMAN’S TRUCK CENTER, INC., and Ken Kaatz, Appellants, v. D. Leroy GIBSON, Appellee.
    No. 80-86.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Rehearing Denied Feb. 22, 1982.
    R. L. Russell, of Van Den Berg, Gay & Burke, P.A., Orlando, for appellants.
    Daniel J. Roberson, of Roberson & Roberson, Deland, for appellee.
   SHARP, Judge.

Heintzelman’s Truck Center, Inc. (Heint-zelman’s) and Kaatz appeal from a final judgment awarding damages to appellee, Gibson. Gibson sued appellants for the conversion of a truck he purchased from Heint-zelman’s. The trial judge directed a verdict in favor of Gibson on the issue of liability and awarded Gibson compensatory damages against Heintzelman’s and Kaatz (jointly and severally) of nineteen thousand one hundred eighty-one dollars fifty cents ($19,-181.50). The jury awarded Gibson nineteen thousand dollars ($19,000) in punitive damages against Heintzelman’s.

After a careful review of the record we find no reversible error occurred with regard to the compensatory damage award. Accordingly, it is affirmed. However, the punitive damage award against Heintzel-man’s is not sustainable under the dictates of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla. 1981). It is therefore reversed.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: PER CURIAM.

text:
    DEPARTMENT OF TRANSPORTATION, Seaboard Coast Line Railroad Company, et al., Appellants, v. Sheila WEBB, Linda Strong, et al., Appellees.
    Nos. VV-79, VV-103.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Rehearing Denied March 3, 1982.

      DuBose Ausley and William M. Smith of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant Seaboard Coast Line.
    H. Reynolds Sampson, Alan E. DeSerio and James W. Anderson, Tallahassee, for appellant Dept, of Transp.
    Stanley B. Powell of Powell, Powell & Powell, Niceville, for appellees Webb and Strong.
    Paul A. Bernardini of LaRue & Bernardi-ni, Daytona Beach, and Cynthia S. Tunni- ' cliff of Spector, Tunnicliff & McCord, Tallahassee, for appellee Grant.
    L. Lee Williams, Jr., and Robert C. Apgar of Peeples, Earl, Smith, Moore & Blank, Tallahassee, for Florida Defense Lawyers’ Ass’n, amicus curiae.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

Seven points on appeal involving contribution, statutory immunity, various eviden-tiary matters, the trial court’s failure to instruct on punitive damages, and the viability of Florida’s doctrine of joint and several liability are presented for our review of the verdict and judgments entered in this negligence action. For the reasons expressed below, we affirm.

Five students were riding to school in northern Leon County when their car collided with a Seaboard Coast Line train. The driver was killed, one passenger required amputation of both legs, and the other passengers were seriously injured. Passengers Webb and Strong filed a negligence action against SCL, locomotive engineer Williams, and the Department of Transportation which was responsible for planning and maintaining the crossing. SCL and Williams filed a third-party complaint for contribution and indemnity against the estate of Grant (the deceased driver), Herring (the owner of the automobile), and Maryland Casualty Company (Herring’s insurer). The third-party complaint was answered by the driver’s personal representative, on behalf of her children, who filed a counterclaim against SCL and a cross claim against DOT and Herring for the wrongful death of the driver. Before trial, the judge entered summary judgment in favor of Herring and Maryland Casualty on the contribution claim.

Also before trial, the judge denied a defense motion in limine which had been directed at excluding, among other things, evidence of prior accidents at the intersection and evidence that additional signals were planned before, but installed after, the accident. The judge additionally denied the plaintiffs’ request for the standard jury instruction on punitive damages.

The jury found the driver 75% at fault, DOT 20%, Seaboard Coast Line 5%. Damages were assessed at $700,000 for Webb, $10,000 for Strong, and $150,000 each for the driver’s two children. Accordingly, the judge found DOT and SCL jointly and severally liable to the driver’s children in the amount of $37,500 each ($150,000 reduced by 75%).

The judgments were further reduced pursuant to Section 768.041, Florida Statutes, because of settlement money the plaintiffs had received. Herring, Maryland Casualty and the driver had settled with Webb for a total of $13,000 and with Strong for a total of $1,000. Herring and Maryland Casualty had settled with the driver (on behalf of her children) in the amount of $2,000. To reflect these agreements, an amended final judgment was entered finding DOT and SCL jointly and severally liable to the driver’s two children in the amount of $36,500 each, Webb $687,000 and Strong $9,000.

The bulk of the argument in this appeal concerns SCL’s contention that the concept of joint and several liability in Florida has been, or should be, superseded by the doctrine of comparative negligence. We reject this notion because it misconceives comparative negligence theory. Comparative negligence, as defined in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), is a device designed to allow compensation for plaintiffs who may themselves be partly negligent, instead of eliminating their recovery altogether under the common law doctrine of contributory negligence. SCL and the amicus Florida Defense Lawyers’ Association argue that because the Hoffman opinion permits juries to apportion damages according to the proportion of fault of each party, the concept of joint and several liability no longer has a place in Florida courts. However, this argument ignores Lincenberg v. Issen, 318 So.2d 386 (Fla.1975) and subsequent statutory developments. In Lincenberg, the court decided that the doctrine of comparative negligence was not incompatible with the 1975 version of the Uniform Contribution Among Joint Tortfeasors Act. Section 768.31, Florida Statutes (1975), which required that fault could not be the basis for determining a defendant’s contribution. The present contribution statute provides that relative degrees of fault shall be the basis for determining contribution. Section 768.31(3)(a) Florida Statutes (1979).

Clearly, if the interplay between comparative negligence and the contribution statute was workable in 1975, it is even more workable now. We must reject the appellant’s arguments that the law of comparative negligence requires a pure apportionment of damages. See Lincenberg at 392, n.2.

SCL further argues that the drivér’s settlement release which was executed by Webb and Strong for $14,000 should act as a settlement by Webb and Strong for 75% of their claim. However, Section 768.-31(5)(a), Florida Statutes, provides that such a release “reduces the claim against the others to the extent of any amount stipulated by the release.” The plain language of the statute supports the trial judge’s decision that the judgment should be reduced by $14,000, not by 75% of the total award.

The decision to admit evidence of prior accidents at the railroad crossing was within the sound discretion of the trial judge. See Friddle v. Seaboard Coast Line Railway, 306 So.2d 97 (Fla.1975); Lawrence v. Florida East Coast Railway Company, 346 So.2d 1012 (Fla.1977).

The judge also properly admitted evidence of remedial measures taken by the defendants after prior accidents but before the accident in question. We construe Section 90.407, which prohibits the admission of evidence of remedial measures “taken after an event” as addressing those measures taken after the event giving rise to the cause of action. SCL argues that this evidence was unfairly admitted because the defendants offered to stipulate to the dangerous nature of the crossing. However, the jury in this case was entitled to know the extent and nature of the defendants’ knowledge of the crossing in order to assess negligence.

Finally, the Department of Transportation contends it should have been declared immune from tort liability in this case because the installation of warning devices and the establishment of an adequate line of sight for approaching motorists and engineers (and impliedly, any maintenance of the crossing which may have contributed to its dangerous condition) should be construed as “planning” activities, which are immune from suit, instead of “operational” activities, which are not. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Because of the detailed and expert planning necessarily involved in deciding where, when or how to take safety measures at the crossing, DOT argues, this should be considered a planning function, especially since budgetary matters must be considered in the decision-making process.

However, this analysis is unhelpful because every operational activity undertaken by DOT must at some point entail planning, which would cloak the department in absolute immunity. See Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981).

The department has not demonstrated that its action or inaction at this admittedly dangerous railroad crossing was based upon “basic governmental policy,” or that the jury’s determination of negligence in this case was merely an exercise in second-guessing “the propriety of governmental objectives or programs” which the court in Commercial Carrier sought to protect.

On cross appeal, we also affirm the judge’s rejection of a jury instruction on punitive damages. There was no evidence tending to show that punitive damages could properly be applied. See Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977), cert. denied 365 So.2d 714 (1978). See also Carraway v. Revell, 116 So.2d 16 (Fla.1950).

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . 371 So.2d at 1019, quoting Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965).

      . Id.


text:
    Dagoberto SANCHEZ and Christina Sanchez, his wife, Appellants, v. LARIBEE MACHINE COMPANY, INC., a New York corporation, Appellee.
    Nos. 81-154, 80-1549.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Horton, Perse & Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellants.
    Bond, Schoeneck & King and Robert J. Hunt, Boca Raton, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

These consolidated appeals of plaintiffs are from a non-final and a final order dismissing their second amended complaint against Laribee Machine Company, Inc., a nonresident New York corporation, on the ground of lack of personal jurisdiction over the defendant under Sections 48.181 and 48.193(l)(f), Florida Statutes (1977).

The complaint was filed in the Circuit Court of Dade County, Florida in an action by plaintiffs, husband and wife, against Laribee Machine Company wherein it was alleged that Dagoberto Sanchez was injured when a machine manufactured by the defendant threw a loose wire and struck him in the eye. The machine was on the premises of Sanchez’ employer in Florida when the injury occurred.

There were allegations in the complaint relative to jurisdiction which stated that at all times material to the cause Laribee was a New York corporation authorized and licensed and/or doing business in the State of Florida and subject to the jurisdiction of the Courts of Florida.

In the alternative it was alleged that Laribee was engaged in the solicitation of business and sales and/or performed service activities in the State of Florida; that the high speed wire buncher manufactured and sold by Laribee was used in the State of Florida and said use caused the injuries complained of by the plaintiffs.

The defendant moved to dismiss the complaint on jurisdictional grounds and supported its motion by discovery and affidavits of its officers and employees. It was shown therefrom that Laribee is a small family owned company with over 30 years experience in manufacturing wire bunching machines and related products; that Lari-bee’s machines are handcrafted and assembled one at a time at Laribee’s only facility which consists of an old pre-1900 factory building and newer addition of about 11,000 square feet combined,' located in Camden, New York; that it has 18 employees; that it has no presence within or contacts with Florida. It neither owns nor leases real or personal property in Florida. It has no officers, agents or employees in Florida and does not conduct business in Florida by or through means of brokers, jobbers, wholesalers, distributors or the like. It does not have an office in Florida. It does not have telephone or business listings in Florida, does not have a mailing address in Florida, does not advertise in Florida, does not have security interests in or retain title to goods or products in Florida and does not make deliveries in Florida. It has never solicited business in Florida or elsewhere. Instead, it relies upon word of mouth promotion of its product and upon its customers to call for re-orders when need arises.

The Laribee wire buncher machine purchased by the employer of the injured plaintiff was bought in New York and delivered F.O.B. Camden, New York. Laribee’s first sale to a Florida customer was in 1972. From 1972 through November, 1979 its total sales were $4,648,924, of which $69,922 or 1.5 percent were to Florida customers. All of its sales were and are made in New York and shipped to its customers F.O.B. Camden, New York. It has not purposely availed itself of the privileges of carrying on business activities in Florida.

Laribee denies that it employs any procedure whereby it solicits new business. However, the manual for the buncher contains a full page advertisement of the machine purchased. It also invites the purchaser, in bold-faced type, to: “Write or phone for more information on our complete line of simplified wire manufacturing machines — Rod Breakdown — Intermediate & Fine Wire Drawing Machines — Stran-ders — Annealing Equipment — Spoolers— Tinning Machines — Stringers—Take-Ups— Pay-Offs — Bobbin Winders — Respoolers— Flyers — Traverses[.]” There is also a statement in the advertisement that Laribee has had “50 years experience with bare copper wire fabricating equipment[.]”

The trial court considered the defendant’s motion to dismiss the plaintiffs’ second amended complaint. After hearing on defendant’s motion to dismiss and its evidence in support thereof, the trial court granted the defendant’s motion, with prejudice, on the ground of lack of jurisdiction of the Courts of Florida over Laribee corporation.

We think that the trial court erred in entering the order of dismissal, therefore we must reverse.

It appears from the record that the defendant’s own evidence, which it adduced in support of its motion to dismiss, when viewed in the light of Ford Motor Company v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981), clearly shows that its actions and conduct made it amenable to service of process under the Florida long arm statutes. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Ford Motor Company v. Atwood Vacuum Machine Co., supra; Pennington Grain & Seed, Inc. v. Murrow Brothers Seed Co., Inc., 400 So.2d 157 (Fla. 1st DCA 1981); Jacobson Manufacturing Co. v. Cross Manufacturing Co., 396 So.2d 825 (Fla. 4th DCA 1981); Section 48.193, Florida Statutes (1977).

Reversed and remanded for further proceedings.

      . Decided after the trial court’s ruling in this case.


author: ANSTEAD, Judge.

text:
    Henry LANGBERT, Appellant, v. Ruth I. LANGBERT, Appellee.
    Nos. 80-1193, 80-1356 and 80-1357.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.

      Ronald Sales, Palm Beach, and Edna L. Caruso, West Palm Beach, for appellant.
    Ira Marcus of Ira Marcus, P. A., Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

In these consolidated cases, Henry Langbert timely seeks review of a July 2, 1980 order of the lower court finding him in civil contempt and fining him $2,000 per day until compliance for failure to obey prior court orders in a dissolution proceeding. Because he was uncertain whether an order of civil contempt was reviewable through appeal of a non-final order under Rules 9.130(a)(3)(C)(ii) and (iii) or by petition for writ of common law certiorari under Rules 9.030(b)(2)(A) and 9.100(e), he elected to pursue both approaches. We accept review under the provisions of Rule 9.130(a)(3).

The prior court orders which the lower court found Langbert had violated had directed him to deliver certain furniture, allegedly valued at $50,000, to his estranged wife Ruth Langbert, and to refrain from alienating her interest in two municipal sewer bonds valued at $20,000. Langbert alleges error in the admission of evidence and in the failure of notice as to the alleged alienation of the bonds. He also urges that the fine of $2,000 per day was excessive.

Under Sections 38.22 and 38.23, Florida Statutes, Florida judges are granted broad powers of contempt. The parameters of this authority under circumstances similar to those involved herein has been described by the Florida Supreme Court as follows:

A civil contempt proceeding naturally involves in some measure a transgression against the dignity of the court and the prestige of its order, however, it is in actuality a proceeding between the parties to the cause and is instituted and tried as a part of the main case. It should be considered more nearly in the nature of a civil proceeding between the parties, and to the extent appropriate rules governing civil causes should apply. When a judgment or decree in favor of one party is disregarded or violated by another party to the injury of the former, it is then appropriate for the injured party to call upon the court to exercise its contempt powers in the enforcement of its decrees for the benefit of the party in whose favor the decree has been entered.
In an appropriate civil contempt case the court may compel performance of a required act by coercive imprisonment or in the event that the violation of the decree has resulted in damages to the injured party, there is adequate authority to support the assessment of a “compensatory fine” to be paid by the wrongdoing party to the party injured. The expression “compensatory fine” seems to have found its way into the law governing contempt in Gompers v. Buck’s Stove & Range Co., [221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911) ]. It was indirectly recognized by our opinion in Seaboard Air Line R. Co. v. Tampa Southern R. Co., [101 Fla. 468, 134 So. 529 (1931)]. Although in 17 C.J.S., Contempt, § 94, p. 137, it is stated:
“The power of the court to award indemnity to the injured party usually rests on statute”,
nevertheless, the history of civil contempt proceedings sustains the conclusion that the power to impose a compensatory fine to the extent of the damages suffered by the injured party inheres in the court whose decree has allegedly been violated.

South Dade Farms v. Peters, 88 So.2d 891, 899 (Fla.1956). The burden of proving the amount of a compensatory fine to be assessed against a contemnor rests with the moving party and the amount of such fine “should be reasonably certain of measurement.” National Exterminators, Inc. v. Truly Nolen, 86 So.2d 816, 818 (Fla.1956); see also Schoenthal v. Schoenthal, 138 So.2d 802 (Fla. 3d DCA 1962).

We have reviewed the record and find no merit to appellant’s claim of lack of notice or with respect to the admission of evidence. In addition we believe the evidence submitted with reference to the value of the items in question was sufficient to support the imposition of a substantial fine. However, we also believe it was incumbent upon the trial court to limit the fine imposed to an amount reasonably related to the damage suffered by the injured party in accordance with the decision in South Dade Farms v. Peters.

Accordingly, we affirm the findings of the trial court’ and the judgment of contempt but remand this cause to the trial court with instructions to reconsider the penalty provisions of the fine in accordance with the principles set out in South Dade Farms v. Peters. The trial court may receive additional evidence as it deems necessary.

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

      . Florida Rulés of Appellate Procedure 9.130(a)(3)(C)(ii) and (iii) provide for appellate “[rjeview of non-final orders of lower tribunals .. . which . . . determine . .. (ii) right to immediate possession of property . . . (or) (iii) right to immediate monetary relief or child custody in domestic relations matters,” language which on its face appears applicable to the instant case. Under the earlier Rule 4.2, it had been held that an order of civil contempt was reviewable by interlocutory appeal. In re Estate of Rasmussen, 335 So.2d 634 (Fla. 1st DCA 1975). When the earlier Rule was amended to become the present Rule 9.130, In re Proposed Florida Appellate Rules, 351 So.2d 981, 997 (Fla.1977), its terms were made much more specific. It is apparent from the Committee Notes to the new Rule that such specificity was designed to better define the scope of appeala-ble non-final orders while limiting the number of petitions for writ of common law certiorari. Accordingly, we believe that the Rasmussen holding, that orders of civil contempt are reviewable by interlocutory appeal, is still valid.


text:
    EXPERT TILE, INC., a Florida Corporation, Appellant, v. Otto HAMMANN and Gisela C. Rotter, Appellees.
    No. 81-416.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied March 9, 1982.
    Edward J. Richardson of Saxon & Richardson, Melbourne, for appellant.
    Calvin B. Brown of Collins, Brown, Caldwell & Evans, Vero Beach, for appellees.
   PER CURIAM.

Appellant has failed to demonstrate reversible error and, consequently, we affirm the trial court’s decision on the merits. However, it was conceded at oral argument that it was error not to award appel-lees/defendants’ attorney’s fees for that portion of the defense which was necessary to defeat the mechanic’s lien claim. Accordingly, the judgment is affirmed in part and reversed in part and the cause is remanded with instructions to award appel-lees an appropriate attorney’s fee.

GLICKSTEIN and HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.


text:
    PARK ROAD MOBILE MANOR, INC., Petitioner, v. K. Jack BREIDEN, Respondent.
    No. 81-2017.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied March 12, 1982.
    Ronald A. Dion of Entin, Schwartz, An-gert, Dion & Broudy, North Miami Beach, for petitioner.
    E. Louis Fields of E. Louis Fields, P. A., Fort Lauderdale, for respondent.
   PER CURIAM.

This is a petition for common law certio-rari growing out of a mobile home eviction proceeding. The action was instituted in county court where a summary judgment barring the tenant’s eviction was issued. The summary judgment was appealed to the circuit court, which affirmed as to eviction. We conclude that a substantial departure from the essential requirements of law sufficient to warrant an assumption of jurisdiction by this court has been demonstrated. See Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980), and City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981).

A review of the record discloses the summary judgment was entered totally without sworn proof as to any of the factual issues made by the pleadings. There was simply nothing in the court file upon which a summary judgment could have been based. The county court’s summary judgment and the circuit court’s appellate order are vacated and the matter remanded for further proceedings.

CERTIORARI GRANTED.

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


author: CAMPBELL, Judge.

text:
    In the Interest of R. W., a child. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. LEE COUNTY, Appellee.
    No. 81-328.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 15, 1982.

      Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    James Yaeger, County Atty., Fort Myers, for appellee.
   CAMPBELL, Judge.

This is an appeal by the appellant, State of Florida, Department of Health & Rehabilitative Services, from a judgment of the trial court which required appellant to pay fees to a guardian ad litem appointed for a minor child pursuant to section 827.07(16), Florida Statutes (1979). We affirm.

The sole issue raised by appellant is whether it can be required to pay such fees absent a specific legislative appropriation. In support of its position, appellant relies on article VII, section 1 of the Florida Constitution, which provides that no money shall be drawn from the state treasury except pursuant to appropriations made by law. We feel that the constitutional limitation does not require every expenditure for which the state might be obligated to pay to be specifically itemized in appropriations to the various departments of state government. That would be impossible.

We consider an award of fees to a guardian ad litem appointed as required by statute to be closely akin to an award of costs and attorney’s fees provided by statute to be awarded to a prevailing party. Thus, the case of Simpson v. Merrill, 234 So.2d 350 (Fla.1970), is so analogous to this case as to be controlling here. It is illustrative of expenditures that may be required of the state but not anticipated by a specifically itemized appropriation. In Simpson, the supreme court considered whether the state or any of its agencies would be liable for court costs that might be taxed in favor of a party recovering judgment. The court held that the state or its agencies are required to pay such costs absent any specific exemption in section 57.041, Florida Statutes (1969), which provided for recovery of legal costs.

Chief Justice Ervin’s concurring opinion in Simpson thoroughly addresses the potential problem of a lack of available appropriated funds to pay for judgments rendered against the state. There, he recognized that where such judgments are rendered, in order to pay the judgments it may be necessary for the agency to transfer funds within its appropriated budget when such transfers would not seriously jeopardize the normal duties of such agencies. He also recognized that whether funds are available with which to pay such judgments is not always readily ascertainable, stating:

If there is dispute as to availability of funds of the officer or agency to pay such costs, a separate mandamus action to determine the issue could be brought. If there were no funds available, the losing officer or agency in the litigation could seek a budgetary item in his or its succeeding year’s budget to pay the judgment costs or a claim or relief bill could be sought.

234 So.2d at 353. See also Roberts v. Askew, 260 So.2d 492 (Fla.1972).

Appellant relies on In Re D.B. and D.S., 385 So.2d 83 (Fla.1980), as support for its position that Lee County, not appellant, should pay the guardian ad litem fees incurred pursuant to section 827.07(16). We find that reliance misplaced as we interpret that decision to be restricted to cases where appointment of counsel is constitutionally required. In those instances the court held that section 43.28, Florida Statutes (1979), requires the county to pay such fees. Appointment of a guardian ad litem in child abuse cases is not a constitutional requirement nor is it the type of appointment necessary to the operation of the court as contemplated by section 48.28. It is the result of a legislative requirement under chapter 827, Florida Statutes (1979). Section 827.07(11) places the prime responsibility for carrying out the provisions of that chapter upon appellant. Appellant, therefore, should pay the costs incurred in carrying out that responsibility.

Florida Department of Health & Rehabilitative Services v. In Re R.M.A., 327 So.2d 844 (Fla. 1st DCA 1976), held in a similar case that the appellant could not be required to pay a fee to the guardian ad litem. We are not in conflict, however, since that case was based on lack of statutory authority for award of a fee to a guardian ad litem and was prior to the enactment of section 827.07(16) which now requires the appointment of a guardian ad litem.

We, therefore, affirm the judgment of the trial court.

SCHEB, C. J., and SCHOONOVER, J., concur.


text:
    In the Interest of A.E., a child. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. LEE COUNTY, Appellee.
    No. 81-877.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 15, 1982.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    Thomas M. Brondstetter and Philip L. Burnett, P.A., Fort Myers, for appellee.
    Michael Basile, Tallahassee, for amicus curiae, Comptroller, State of Florida.
   CAMPBELL, Judge.

The State of Florida, Department of Health & Rehabilitative Services (HRS), appeals from an order of the trial court which found Alvin Taylor, then secretary and head of HRS in contempt. The order sentenced Mr. Taylor to serve 179 days in jail or until such time as he caused HRS to pay guardian ad litem fees previously ordered by the court. The award of those fees had been the subject of an appeal to this court and was affirmed without opinion prior to the contempt proceedings against Taylor. In re A.E., 392 So.2d 75 (Fla. 2d DCA 1980). We reverse the order of contempt.

Pursuant to section 90.202(5)(11), Florida Statutes (1979) we take judicial notice of the fact that Mr. Taylor is no longer secretary of HRS and can no longer comply with the trial court’s order. Thus, the issue concerning Taylor is moot. Moreover, Taylor’s successor in office is not subject to punishment for contempt for refusing to obey the order entered against Taylor. King v. Greenblatt, 489 F.Supp. 105 (D.Mass.1980); Boise-Kuna Irrigation District v. Hartson, 285 P. 456 (Idaho 1929); Socotch v. Board of Liquor Control, 51 Ohio Ops. 106, 114 N.E.2d 114, rev’d on other grounds Socotch v. Krebs, 97 Ohio App. 8, 119 N.E.2d 309 (1953).

It would appear that if anyone might be properly subject to a contempt citation in these proceedings, the Comptroller or his Chief of the Bureau of Auditing are the most likely subjects. The record reveals that following this court’s affirmance of the trial court’s award of the guardian ad litem fees, In re A.E., HRS submitted a voucher for payment of the fees to the Comptroller on December 19, 1980. The Office of the Comptroller refused to honor the voucher. In a letter to HRS dated December 30, 1980, it chose to interpret for itself In re D.B. and D.S., 385 So.2d 83 (Fla.1980), as invalidating the trial court’s order of payment which this court had affirmed. The decision of this court was after the May 16, 1980 supreme court decision of In re D.B. and D.S. The obvious inference, therefore, is that this court did not consider In re D.B. and D.S. dispositive of In re A.E. filed October 29, 1980. Regardless of the foregoing time sequence, the Chief of the Bureau of Auditing in the Office of the Comptroller disregarded our mandate in In re A.E. In view of this fact, we are writing an opinion in a related proceeding which affirms another judgment against HRS awarding guardian ad litem fees to explain our familiarity with In re D.B. and D.S. and express how we distinguish the holding in that case from the issues involved in this case. In re R.W., 409 So.2d 1069 (Fla. 2d DCA 1981).

Finally, we note that while contempt proceedings in some cases involving similar situations might be appropriate, the most appropriate remedy in the present case would have been a writ of mandamus. Roberts v. Askew, 260 So.2d 492 (Fla.1972); Simpson v. Merrill, 234 So.2d 350 (Fla.1970); In re R.W., 409 So.2d 1069 (Fla. 2d DCA 1981).

SCHEB, C. J., and SCHOONOVER, J., concur.


author: PER CURIAM. PER CURIAM.

text:
    R. L. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. AC-441.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Rehearing Denied Feb. 4, 1982.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1980), docketed, Case No. 60,223 (Fla., orally argued Aug. 31, 1981). Our affirmance in this case is based upon the same questions addressed in R. M. P. v. Jones, supra. Pursuant to the opinion of the Florida Supreme Court in Jollie v. State, 405 So.2d 418 (Fla.1981), reh. pending, mandate in this case will be withheld during the period provided for invoking Supreme Court review and thereafter, if review is sought, pending final disposition of any petition for review herein.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

While there is some language in Jollie, supra, which suggests that the mandate in the present ease might be withheld pending the Supreme Court’s disposition in the controlling case, a closer reading of Jollie leads us to conclude that the mandate should be withheld during the period for invoking Supreme Court review in the present case, and thereafter, if review is sought, pending final disposition of such petition by the Supreme Court. In reaching this conclusion we have relied on that portion of Jollie which indicates that the purpose of this procedure is to “dispose of the need for separate motions [in the DCA] to stay mandates,” and that “[i]f review of the referenced decision is requested, the parties may seek consolidation” in the Supreme Court.

The motion for rehearing and for modification of stay is accordingly denied.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Arnet VEREEN, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES on Behalf of Janice FOLLINS, Appellee.
    No. 81-706.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 16, 1982.
    John S. Lynch and Mary Ann Huey, Withlacoochee Area Legal Services, Inc., Ocala, for appellant.
    Charles L. Carlton of Carlton & Carlton, P.A., Lakeland, and Eugene Johnson, Ocala, for appellee.
   PER CURIAM.

AFFIRMED. Andrews v. Walton, 400 So.2d 790 (Fla.2d DCA 1981). Contra Mackey v. Mackey, 402 So.2d 41 (Fla.3d DCA 1981); Chapman v. Lamm, 388 So.2d 1048 (Fla.3d DCA 1980).

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


text:
    The CITY OF SANIBEL, Florida, and Anne Winterbotham, Joseph Searing, Arthur Wykoff, Donald Manchester, William Hagerup, Larry E. Simon, as successor to Judy Workman, and Louise Johnson, constituting the Planning Commission of the City of Sanibel, Florida, and Bernard J. Murphy, Jr., City Manager, Appellants, v. Robert F. BUNTROCK and Charles R. Blakely, Jr., and Joyce Blakely, Husband and Wife, Appellees.
    No. 81-499.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 8, 1982.

      Neal D. Bowen, Sanibel, for appellants.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellees.
   PER CURIAM.

In this appeal we hold that a municipality must enact an ordinance declaring a building moratorium with the same formality required for an ordinance which rezones property.

The City of Sanibel has adopted a comprehensive land use plan which includes all of the traditional aspects of municipal zoning. Appellees Charles and Joyce Blakely owned land within the city which has a permitted use of restricted commercial. They contracted to sell their property to appellee Robert S. Buntrock contingent upon his obtaining the appropriate permits for the development of an office complex. In the meantime, the city enacted an ordinance placing a one year moratorium on the issuance of permits and approvals for commercial development. Except for the moratorium, Buntrock was in a position to obtain the requisite permits for the proposed complex. When the city refused to issue him a permit, he filed suit attacking the validity of the moratorium ordinance. Ultimately the court declared the ordinance invalid and directed the city to process Buntrock’s application.

The basis for the court’s ruling was that the city had not enacted the moratorium ordinance pursuant to the notice and hearing requirements of section 166.041(3)(c)l., Florida Statutes (1979), that are applicable to ordinances “which rezone private real property.” The city concedes that it did not follow the procedure outlined in the statute but argues that it was unnecessary to do so because the moratorium ordinance did not constitute rezoning.

A number of jurisdictions have decided this issue. Some states have held that a moratorium on the issuance of building permits pending zoning or rezoning may be accomplished without following the formalities required when the actual zoning or rezoning takes place. CEEED v. California Coastal Zone Conservation Commission, 43 Cal.App.3d 306, 118 Cal.Rptr. 315 (1974); A. Copeland Enterprises, Inc. v. City of New Orleans, 372 So.2d 764 (La.App.1979); City of Dallas v. Crownrich, 506 S.W.2d 654 (Tex.Civ.App.1974). Other courts, however, have struck down similar moratoria because they were not adopted with the same formality required of zoning or rezoning ordinances. State ex rel. Brodie v. Powers, 168 Conn. 147, 362 A.2d 884 (1975); Lancaster Development, Ltd. v. Village of River For est, 84 Ill.App.2d 395, 228 N.E.2d 526 (1967); State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63 (1935); State ex rel. Christian, Spring, Sielbach & Associates v. Miller, 169 Mont. 242, 545 P.2d 660 (1976); State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 (1941).

No Florida court has precisely answered the question, but two decisions suggest an inclination toward the latter view. In City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., 108 So.2d 614 (Fla. 3d DCA), cert. denied, 111 So.2d 437 (Fla.1959), the city refused to issue a building permit for an addition to the Fontainebleau Hotel because of the enactment of an emergency amendment to the building code establishing certain height restrictions. The owners of the hotel contended that the ordinance was a zoning ordinance which the city could pass only after notice and a public hearing, neither of which had been accomplished with respect to the emergency amendment. The court agreed and declared the ordinance invalid for failure of the city to comply with the notice and hearing provisions of the zoning enabling act.

In Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966), the city had enacted an ordinance without public notice or hearing which prohibited the keeping of horses on land zoned R-0. An owner of land within the zone who had been convicted of violating the ordinance attacked the validity of its enactment. The lower appellate court upheld the trial court’s finding that the challenged ordinance was not a zoning ordinance but rather “an exercise of the City’s general police power relating to health, morals and general welfare.” Id. at 194. In reversing the conviction, the supreme court said:

Clearly the restriction imposed by the ordinance in question is a use regulation.
It is true that zoning power is justified only as an exercise of the general police power but this will not permit a municipality to evade the protections thrown about the citizen’s use of his property by the legislative limitations imposed on the zoning power by the device of labeling a zoning act a mere exercise of police power. Specific grants by the legislature always limit general grants. The specific grant of zoning power is conditioned by the provision for notice and public hearing. Since the City Commission did not comply with the notice and public hearing provisions, the ordinance under which the petitioner was arrested and convicted was invalid.

183 So.2d at 195.

Neither of these cases involved building moratoria. Yet the implication is clear. If an ordinance substantially affects land use, it must be enacted under the procedures which govern zoning and rezoning. To entirely prohibit a person from building upon his property even temporarily is a substantial restriction upon land use. Consequently, it is not too much to ask that a municipality follow the same procedures with respect to notice and hearing before it puts such a moratorium into effect.

AFFIRMED.

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

      . Section 166.041(3)(c)l. applies to ordinances affecting less than 5% of the total land area of a city which was the case here.

      . In adopting the ordinance in question, the city followed section 166.041(3)(a), Florida Statutes (1979), which prescribes the ordinary method for enacting ordinances. However, this section specifically excepts “rezoning” ordinances which must be enacted according to the procedure prescribed in section 166.-041(3)(c). Section 166.04 l(3)(b) authorizes the adoption of emergency ordinances but stipulates that a municipality cannot use an emergency ordinance to amend a land use plan or rezone private real property.

      . At one point in its brief, Sanibel contends that because it accomplishes its land use control through the vehicle of a comprehensive land use plan adopted under the authority of the Local Government Comprehensive Planning Act of 1975, section 166.041(3)(c) has no continuing efficacy in the City of Sanibel. It points to section 163.3211, Florida Statutes (1979), which provides that if the Act is in conflict with other laws relating to local governments having authority to regulate the development of land, its provisions “shall govern unless the provisions of this act are met or exceeded by other provision or provisions of law relating to local government.” Significantly, however, Sanibel overlooks the fact that the procedure to be followed in amending a land use plan involving less than 5% of the total land area is the same as that set forth in section 166.041 (3)(c)l. for rezoning. §§ 163.-3187, .3184(7)(b), Fla.Stat. (1979).


author: SCHEB, Chief Judge.

text:
    Bernard KAYES and Jerry Palmer, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-1257, 80-1753.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 8, 1982.

      H. Dohn Williams, Jr., of Varón & Stahl, Hollywood, for appellant Kayes.
    Robert P. Foley of Foley & Colton, West Palm Beach, for appellant Palmer.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellants Bernard Kayes and Jerry Palmer each entered a plea of nolo conten-dere to trafficking in cannabis, each reserving his right to appeal the denial of a motion to suppress the cannabis. The trial judge sentenced Kayes to ten years in prison and a $15,000 fine and costs, and Palmer to three years in prison followed by five years probation. On appeal appellants contend the court erred in denying their motions to suppress the cannabis. They argue that the seizure by the police was based on information obtained by officers when they illegally stopped their vehicle. We agree that there was no well-founded suspicion for the police to stop the vehicle. However, while Palmer, who rented and drove the car, has standing to challenge the search, Kayes, a mere passenger, does not.

The only testimony offered at the suppression hearing was that of Ralph F. Cunningham, chief investigator for the state attorney’s office. Cunningham, who had a wealth of experience in narcotics investigation, outlined the profile of a typical drug smuggling operation in Florida. Drug smugglers use medium-sized boats to meet freighters carrying marijuana. These boats are met in turn by swift racing boats which transport the marijuana to shore where it is off-loaded into large capacity vehicles and stored in warehouses. From the warehouses, marijuana is transported by vehicles to various dealers.

Cunningham then related the observations which caused him to suspect appellants were transporting marijuana. The dockmaster for the Keewadin Dock reported that he observed boats and vehicles capable of transporting large quantities of marijuana at his dock. In addition, he noticed that the people manning these vessels spent large sums of money. A Collier County deputy sheriff reported that some vehicles and vessels similar to those used in smuggling operations had been seen at the Rainbow Stained Glass warehouse which was located some nine miles from the Keewadin Dock. At least one boat which had been seen at the warehouse was observed some two weeks later at the Keewadin Dock. However, no vehicle or vessel was actually seen traveling from the dock to the warehouse. The police checked the license numbers of some twenty to thirty boats and vehicles in that area of the county and found that two years earlier United States Customs officials had seized, but later returned, one boat. Cunningham concluded that the described activities met what he considered to be a typical drug smuggling operation profile, so he had the warehouse and two residences placed under surveillance.

On March 16, 1980, the police conducting the surveillance observed a step-van parked inside the warehouse. At approximately 4:00 p. m. that same afternoon, a blue and white Ford LTD driven by Palmer entered the warehouse. The officers became suspicious when they saw Kayes and Palmer leave the warehouse and observed that their Ford was weighted down with its chassis close to the ground. Cunningham followed appellants in an unmarked police car to a restaurant. While appellants were eating, Cunningham attempted to detect an odor of marijuana around the vehicle, but was unable to do so. Cunningham stated the appellants appeared nervous while they were eating. When appellants left the restaurant, he notified a deputy to stop their vehicle through the use of a ruse. The deputy stopped the vehicle before it got to the county line. Palmer, who had rented the vehicle, was driving; Kayes was a passenger. The deputy told appellants that they were suspects in a burglary of the warehouse. They denied the accusation and refused to give the police permission to search the trunk of their car. Cunningham arrived on the scene, smelled through the keyhole of the car and detected a faint odor of marijuana. As a result, the police seized the car and obtained a warrant to search it. When the search revealed marijuana in the trunk, they obtained another search warrant for the warehouse and seized additional marijuana there.

For an officer to make a valid investigatory stop of an automobile, it is not essential that the officer have probable cause to believe that the occupants have committed, or are committing, a crime. However, it is required that the officer have a founded or reasonable suspicion of criminal activity which merits further investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977); § 901.151, Fla.Stat. (1979). Thus, the legality of the stop is dependent upon the facts within the officer’s knowledge. Taylor v. State, 384 So.2d 1310 (Fla. 2d DCA 1980). Here, the evidence before the court fell short of demonstrating that the officer had a well-founded suspicion of criminal activity sufficient to justify their stop of the vehicle.

Prior to seizing the vehicle, the police had no actual knowledge that appellants were engaged in any criminal activity. The officer’s suspicions were based on the profile of typical drug smuggling activities. We think, however, that meeting the criteria of such a profile does not, in and of itself, create a well-founded suspicion of criminal activity. As appellants left the warehouse, the police assumed drugs were weighting the vehicle down. However, from all appearances, the warehouse was part of a legitimate business operation. Cunningham had looked through the warehouse windows and observed nothing indicating criminal activity. Moreover, the police had no information that contraband was stored there. Finally, as no one observed the van into which Cunningham suspected marijuana had been loaded proceed from the dock to the warehouse, no actual connection between the suspicious activity at the docks and that at the warehouse was established. Thus, an equally valid inference would have been that stained glass weighted the car down. Cf. Mock v. State, 385 So.2d 665 (Fla. 2d DCA 1980), in which the stop of a car was justified because the informant disclosed that a plane was flying in marijuana, and the car left from the area where the plane had landed. In short, while a profile of a smuggling operation may help identify criminal activity, it can also encompass innocent citizens. For example, Cunningham’s testimony at the suppression hearing revealed that the police had stopped the vehicle of two innocent citizens when they left the warehouse.

If the stop of a vehicle is invalid, any evidence resulting from the stop is inadmissible. Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977). Therefore, because the stop of the vehicle was illegal, the seizure of the contraband from the trunk and warehouse was also illegal. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); D’Agostino v. State, 310 So.2d 12 (Fla.1975); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976).

Automatic standing to challenge an unreasonable search and seizure no longer arises when a party is charged with possession of items seized. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Smith v. State, 400 So.2d 27 (Fla. 2d DCA 1981). Thus, only Palmer, who rented and operated the vehicle had the requisite expectation of privacy to challenge the search.

We have examined the other points raised by appellant Kayes and find them to be without merit. Accordingly, we affirm the denial of his motion to suppress and affirm his conviction and sentence. We reverse the denial of Palmer’s motion to suppress and vacate his conviction.

HOBSON and OTT, JJ., concur.

      . Since the relationship of appellants to the vehicle was not evident from the suppression hearing, we relinquished jurisdiction to enable the trial court to determine if appellants had standing to challenge the search of the vehicle. After conducting an evidentiary hearing, the trial court concluded that Palmer, who rented and was the operator of the vehicle, had standing to challenge the search, but Kayes, the passenger, did not. After examining the transcript of the hearing, we agree with that determination.

      . The Supreme Court has characterized a drug profile as a “somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.” Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). In Reid the court held that the officers could not as a matter of law reasonably suspect the defendant of criminal activity because he fit a “drug profile.” Likewise, a drug smuggling profile, a loose set of characteristics believed to be typical of a drug smuggling operation, cannot constitute a reasonable suspicion of criminal activity enabling an officer to stop a participant.


text:
    William Scott EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 80-2224.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Rehearing Denied March 4, 1982.

      Robert D. Hurth, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, William Scott Evans, appeals from an order revoking probation. The affidavit of violation of probation charged two counts, i.e., burglary of the Beach Club Hotel in Fort Lauderdale and burglary of a souvenir shop located within the hotel. The trial court found appellant guilty of grand larceny as a ‘lesser included offense’ of the first burglary count and guilty of aiding and abetting as to the second count. Based on these findings, the court revoked appellant’s probation for possession of cocaine and sentenced him to three years imprisonment. For the reasons set forth below we affirm.

On this appeal, Evans claims, correctly, that neither grand larceny nor aiding and abetting are lesser included offenses to burglary. Thus, he contends his probation was improperly revoked on the basis of violations not alleged in the probation affidavit. To support his position, Evans cites Cucco v. State, 356 So.2d 58 (Fla. 4th DCA 1978). In Cucco the defendant was charged with having violated his probation by committing grand larceny. The trial court revoked his probation upon a finding that he had engaged in the sale of stolen property. We reversed, holding that the sale of stolen property was not a lesser included offense to larceny. We noted that “fundamental due process requires that revocation of probation be based only on violations alleged .. . . ” 356 So.2d 58, 59.

After Cucco, however, the Supreme Court rendered its decision in Hines v. State, 358 So.2d 183 (Fla.1978). There the court held that an affidavit for violation of probation which merely charged a felony arrest was sufficient to support a revocation of probation because the probationer had adequate written notice of the felony upon which the revocation was based. The record in Hines indicated that the probationer had actual notice of the charges he faced, since he had been arrested near the scene of the crime and had made a confession. Thus, the court concluded that the failure of the probation revocation affidavit to specifically list the felony conviction charging Hines was harmless error.

We believe the same rationale applies in the case at bar. Appellant knew from the affidavit of probation violation that proof of a larceny would be adduced at the probation revocation hearing. The affidavit in question charged Evans, in both counts, with “unlawfully entering] and re-mainpng] in a structure . . . with the intent to commit the offense of larceny therein.” Consequently, Evans was not denied due process notice as to the facts and circumstances the trial judge would consider to determine whether probation should be revoked. See also Norris v. State, 383 So.2d 691 (Fla. 4th DCA) petition for review denied, 388 So.2d 1116 (Fla.1980).

AFFIRMED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: PER CURIAM. PER CURIAM,

text:
    Earlene BROWN, Appellant, v. SUNLAND TRAINING CENTER, DIVISION OF RISK MANAGEMENT, Crawford and Company, and the Bureau of Workmen’s Compensation, Appellees/Cross-Appellants.
    No. YY-478.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    On Rehearing Feb. 18, 1982.
    Peter S. Schwedock, of Pelzner, Schwe-dock, Finkelstein & Klausner, P. A., Miami, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees/ cross-appellants.
   PER CURIAM.

Claimant appeals and the employer/carrier cross-appeal from a workers’ compensation order awarding claimant 27% permanent partial disability benefits of the body as a whole due to her partial loss of hearing and orthopedic and psychiatric problems resulting from the two compensa-ble accidents. Although there is competent, substantial evidence to support the award of permanent partial disability benefits, the deputy commissioner erred in failing to determine the date upon which claimant reached total maximum medical improvement as a result of the two accidents. It is improper to begin payment of permanent benefits without a determination of the date of total maximum medical improvement. Southern Bell Telephone & Telegraph Company v. Rollins, 390 So.2d 93 (Fla. 1st DCA 1980); South Carolina Insurance Company v. Blackman, 380 So.2d 1144 (Fla. 1st DCA 1980). Therefore, we remand on this point to allow a determination of the date upon which claimant reached total maximum medical improvement for her overall disability on this record.

All other points on appeal and cross-appeal are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM,

Appellant’s petition for rehearing and/or clarification is granted. We adhere to our opinion remanding the case to the deputy commissioner to allow a determination of the date upon which claimant reached overall maximum medical improvement for the permanent partial disability caused by the two industrial accidents. However, the deputy commissioner may take further evidence as may be absolutely necessary for the limited purpose of determining the date of total maximum medical improvement.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


author: BOARDMAN, Acting Chief Judge. CAMPBELL, Judge,

text:
    Daniel Richard HENTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1383.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.
    Rehearing Denied Feb. 23, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Daniel Richard Henthorne appeals his conviction and sentence for armed robbery. He raises two points on appeal, one of which has merit. He contends that the confession he gave to the police was involuntary and should have been suppressed. We agree and reverse.

Appellant’s confession is rendered involuntary by the undisputed fact that the interrogating officer promised appellant that if he would disclose the identity of his coperpetrator in the instant case, he would not be charged with two other armed robberies the officer believed he was involved in. Where a confession is induced by the promise of a benefit, however slight, the confession cannot stand. Shotwell Manufacturing Co. v. United States, 37 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Frazier v. State, 107 So.2d 16 (Fla.1958); State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). The law on this point was made clear as early as 1897, when the United States Supreme Court held: “ ‘. .. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise ; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568, 573 (1897). (Emphasis added.)

The fact that appellant was permitted to and did confer with an attorney before making his decision to confess is immaterial, since it could not vitiate the effect of the very direct and explicit promise made. None of the cases relied on by the state involves such a clear inducement; they are therefore inapposite to the case before us.

Inasmuch as the robbery victim was the only other witness against appellant, we cannot say that the evidence against appellant was so overwhelming as to render the admission of his confession in evidence harmless error, although the victim’s testimony in and of itself would have been sufficient to support a guilty verdict.

Accordingly, appellant’s judgment and sentence is REVERSED and the cause REMANDED for new trial.

SCHOONOVER, J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I respectfully dissent.

Appellant was arrested for an armed robbery in which another person supposedly participated. The arresting officer was concerned with learning the identity of the other individual. He was also investigating two other armed robberies which he believed appellant had committed.

The appellant was arrested after being identified in a line-up. After being advised of his constitutional rights, appellant informed the officer he desired to talk to an attorney before making any statements. The questioning by the officer was then terminated. The next day appellant was allowed to consult with an attorney from the public defender’s office. After consultation the appellant informed his attorney and the arresting officer that he wanted to cooperate but wanted to think about it for a few days. The arresting officer had told appellant that if he would identify the alleged coperpetrator of the armed robbery, the other charges involving appellant would be dropped. The next day appellant conferred with another attorney from the public defender’s office for about an hour and fifteen minutes. After that consultation, appellant agreed to talk with the arresting officer and identify the coperpetrator. The officer agreed to drop the other charges being investigated. Appellant waived his right to have his attorney present when he gave his confession.

The trial judge found as follows:

From the testimony and from listening to the tape, it is clear to the Court that the Defendant knew what he was doing and well aware of the rights and the rights he was waiving. The question is whether the promise by the officer not to charge him with other crimes is a promise sufficient to, in effect, set aside what was an intelligent waiver.
In this particular case the Defendant did on two occasions, prior to making any statement, consult with his lawyers. I cannot help but feel that the Defendant knew what he was doing and did so willingly and voluntarily. And I feel the statement is — his confession is admissible.

I agree with the trial judge and would affirm appellant’s conviction and sentence.


author: PER CURIAM. DAUKSCH, Chief Judge,

text:
    Jeffrey Hal SPRINKLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-163.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.
    Rehearing Denied Feb. 19, 1982.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The issue on appeal is whether a firearm found on appellant during a weapons search should have been suppressed on appellant’s motion. The trial court denied the motion and appellant pleaded nolo contendere to a charge of carrying a concealed firearm, specifically reserving his right to appeal the denial of his motion to suppress.

The trial court had before it depositions of the officers involved in the search, from which we glean the following facts. Appellant and a male companion were in a bar in Orange County when four deputies, one of whom was in uniform, came in to make a routine check for violations of topless dancing ordinances. During their inspection they noticed appellant and his companion watching them intently. Appellant moved several times so he could keep them in sight. At least one of the officers recognized appellant and his companion as members of the Outlaws motorcycle gang, and was aware of reports that appellant, as well as other members of the gang, was often armed.

Just prior to the officers’ departure after about ten minutes, appellant’s companion left the bar, and as the officers left, appellant exited behind them. Once outside, appellant, his companion and the officers engaged in conversation. The officer who searched Sprinkle knew him to be an Outlaw, had heard that Sprinkle had previously been found with weapons in his possession, was apprehensive for his own safety during their conversation and determined that a weapons search was necessary for his and the other officers’ protection.

We think this case is controlled by the principles expressed in Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972) where under similar circumstances a weapons search was upheld. There, the court held that the validity of the search did not depend on the application of the “stop and frisk law,” (now section 901.151, Florida Statutes [1979]), but on Fourth Amendment considerations as well as consideration of section 12, Article I of the Florida Constitution. Applying the test enunciated in Terry v. State of Ohio, (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, viz:

“. .. it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action was appropriate?”

the court held the limited weapons search to be valid. It went on to say:

By applying the principles expressed in Terry v. State of Ohio, we conclude that under the facts of the present case, the police officer had a reasonable ground under the circumstances of his encounter with the defendant to believe the defendant to be armed and dangerous and made a reasonably limited search for the purpose of neutralizing such danger. For us to hold that the officer was required to disregard the reports he had received because they were of a hearsay nature is not reasonable. Prudent people act on “hearsay” in countless matters.

Ingram at 111.

The court further stated that if the officer had sought out the defendant without probable cause for arrest and thereby intentionally initiating the encounter, the search would not be justified. But those were not the facts in Ingram, nor are they the facts here. The presence of the officers and Sprinkle in the same bar at the same time was happenstance. The officers had all left the bar and could not avoid contact with Sprinkle, who voluntarily chose to exit the bar right behind them. Had Sprinkle wished to do so, he could have stayed where he was until the officers were gone, because they had not addressed him or his presence in any way, other than to take note of his watching them. In view of his suspicious behavior in the bar, his known reputation for carrying weapons, and his initiation of the encounter by following them out, the officers were justified in conducting a limited weapons search of appellant for their protection while in each other’s presence.

The judgment is AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion, this is a ease to be decided under our Stop and Frisk Law, section 901.-151, Florida Statutes (1979), which in pertinent part reads, with emphasis supplied:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.
(6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).

The facts of this case are that Orange County deputies on patrol went to a “topless” bar to see if a county ordinance forbidding lewd conduct was being violated. While there they saw appellant, an Outlaw Motorcycle Gang member, and his comrade, also an Outlaw, acting in a suspicious fashion. They were persistently staring at the deputies. When the deputies left the bar the two Outlaws left, one preceding the deputies, one following, them. There were four deputies and two Outlaws. At least one of the deputies knew at least one of the Outlaws, and the deputies knew, as we all do, that the Outlaws are frequently armed. The testimony at the suppression hearing consisted only of depositions of officers which we have read just as did the trial judge.

In reading the evidence, it is clear none of the deputies, no one, had any reason to believe appellant had “committed, is committing or is about to commit a violation” of law. Thus the deputies had no lawful right to require appellant to stop. It is urged by the state that the deputies knew Outlaws carry weapons, often concealed firearms, thus they .had a right to stop because carrying concealed firearms is unlawful. This is a bootstrap argument; one which would have us justify the search by its fruits — they suspected a firearm, searched for one, found one, thus the search was constitutionally valid. No, they cannot stop unless they have reason to believe a violation of law is involved. Not a mere suspicion. The deputies needed to have a founded suspicion; “a suspicion which has some factual foundation in the circumstances observed by the [deputies], when those circumstances are interpreted in the light of the [deputies’] knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). See also Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980); Lacks v. State, 366 So.2d 1223 (Fla. 4th DCA 1979).

In addition to the fact that the stop was not proper, I also must say the search was illegal. As the statute says, only when the officer has probable cause to believe the person is armed may he search him. Here the deputies did not testify to any cause to believe appellant was armed, except that all Outlaws are usually armed and one deputy had heard defendant had been previously found armed. (It turned out he was really found armed the next day according to a deposition statement.) That is insufficient evidence to support a search. The deputies testified the reason they searched appellant and his comrade was because they were afraid of them. That is not a legal reason to search. It is a very practical and obviously an intelligent reason but not one which allows the fruits of the search to be introduced into evidence at trial. If the courts approved a search based upon fear, then all a police officer would have to do to justify all of his searches would be to say he was afraid. Even if we approve a “reasonable” fear basis for search then almost as many searches would be upheld. This is especially true in this case; these two motorcycle gang members who purposely dress and conduct themselves in a fashion to elicit fear and scorn could hardly be heard to complain when they are met in the middle of the night outside a bar. In summary, there was no lawful stop and no lawful frisk search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“Outlaws” as well as outlaws (criminals) are entitled to the constitutional guaranties all persons enjoy. In fact, it is only when searches are fruitful that the courts are called upon to enforce this paramount constitutional law. Police must obey the constitutional law as well as enforce the statutory law.

I would reverse.


author: SCHOONOVER, Judge.

text:
    Lawrence C. STEWART, Jr., Appellant, v. Jesse P. MEHRLUST and Betty H. Mehrlust, his wife, Appellees.
    No. 81-1203.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1982.
    Rehearing Denied Feb. 16, 1982.

      Douglas H. Smith of Douglas H. Smith, P. A., Lake Alfred, for appellant.
    Joe L. Sharit, Jr., of Straughn, Sharit, Bunn & Chilton, P. A., Winter Haven, for appellees.
   SCHOONOVER, Judge.

Larry D. Stewart, Jr., one of the defendants below, has appealed from a final judgment entered against him and James Dickerson. We reverse.

On or about March 17, 1980, Mr. and Mrs. Jesse Mehrlust, appellees, entered into a contract for the sale of certain real estate to the appellant and James Dickerson. The agreement provided that the purchasers were to make a $10,000 deposit. At the time of execution of the contract, the purchasers failed to tender the deposit. However, the appellees signed the contract and were willing to proceed with the sale of the property. The buyers defaulted and the appellees brought suit for the amount of the deposit. The trial court entered judgment against the buyer for $10,000 plus interest and attorney’s fees.

The contract provided:

U. DEFAULT: If Buyer fails to perform this Contract within the time specified, the deposits) paid by the Buyer aforesaid may be retained by or for the account of Seller as liquidated damages, consideration for the execution of this Contract and in full settlement of any claims; whereupon all parties shall be relieved of all obligations under the Contract; or Seller, at his option, may proceed at law or in equity to enforce his legal rights under this Contract.

When a real estate' contract provides that if a sale is not closed because of the fault of the buyer, the deposit paid under the contract is to be retained by the seller, the seller cannot recover a deposit not actually made. Campbell v. Salman, 384 So.2d 1331 (Fla. 3d DCA 1980).

The appellant did not tender a deposit, so there was nothing to be retained by the sellers. Since appellee did not seek to recover the difference, if any, between the agreed purchase price and the actual value of the property at the time of the breach, judgment should have been entered for the appellant. See Campbell v. Salman.

We reverse and remand for the entry of a judgment for the appellant.

GRIMES, A. C. J., and OTT, J., concur.