author: FERGUSON, Judge.

text:
    METROPOLITAN DADE COUNTY, and Randall Quick, Appellants, v. Michael Dale WILKEY, Appellee.
    No. 81-1286.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.

      Robert A. Ginsburg, Dade County Atty. and Deborah Bovarnick, Asst. County Atty., for appellants.
    J. James Donnellan, III, Miami, for appel-lee.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Metropolitan Dade County and one of its police officers, Randall Quick, appeal a jury verdict finding liability and awarding damages of $31,000.00 on a complaint for assault and battery, false imprisonment, malicious prosecution and conspiracy.

Appellants assert as error several eviden-tiary rulings made by the trial court. We consider three: (1) allowing appellee to make reference to, in his opening statement, and to produce as direct evidence, the fact that one of the police officers allegedly involved in the incident had pleaded nolo contendere to a charge of aggravated battery, (2) permitting appellee to introduce as evidence the indictment which had been filed against the officers, (3) permitting ap-pellees to put on as direct evidence the fact of a grand jury indictment of the defendant officers, the circumstances of dismissal of the charges on “technical” grounds, and opinion testimony of a lawyer witness that the officers were guilty of perjury. We reverse.

The facts are in dispute but can be summarized in order to consider the issues having merit. Appellee and two other young men were observed by officers changing a flat tire along the roadside of a busy thoroughfare in north Dade County. The two officers pulled their marked vehicle alongside, observed them for several minutes, then drove north a few yards parking on the median strip. After the appellee and his friends had changed the tire, appellee drove away at a high rate of speed making erratic lane changes. Appellee’s vehicle was overtaken and stopped. Other officers, a North Miami Beach policeman and two Dade County patrolmen, arrived at the scene. On request, appellee gave his driver’s license but refused to leave his automobile to perform a roadside sobriety test. Appellee’s auto allegedly rolled forward in the direction where Officer D’Amato was standing. Officer D’Amato jumped aside and fired his pistol at the passenger door of appellee’s vehicle. The vehicle came to rest after moving a few feet further. Appellee was forcibly removed from the vehicle and allegedly abused, verbally and physically, by Officer Quick. He was placed under arrest and jailed for driving under the influence of intoxicants and for aggravated battery.

Subsequently, the State abandoned charges brought against appellee and filed charges against the police officers for perjury and for aggravated battery. Before the trial of this civil action charges against the officers had been abandoned or dismissed except as against Officer D’Amato, who entered a nolo contendere plea to the charge of aggravated battery.

With the court’s permission, appellee’s counsel was allowed to make the following opening statement to the jury:

... I cannot and I will not, at least, comment upon the various stories they put together. Suffice it to say that our officers, as a result of that incident, were themselves charged with the commission of criminal acts. At least one of those officers, as we sit here today, has already entered a plea and when I say enter a plea, we normally think of T am guilty,’ or T am not guilty.’ In this case one of the officers said T am not guilty’ to plea. Then we have a Latin phrase, ‘nolo con-tendere.’ That means I do not want to contest the charges that have been made against me. That was the officer who did the shooting.
Due to what I would best describe as reasons of a technical evidentiary matter, those officers who had been charged with another crime other than that shooting the gun were ultimately dismissed, as a result of a ruling by one of this state’s court of appeals on how evidence was put together.

Sheldon Yavitz, an attorney who represented appellee in the criminal proceedings, was called as a witness to testify as to the charges that had been filed against the officers and as to the method of disposition of those cases both at the trial and appellate level. One of his expert “opinions” on inquiry was:

There is no question in my mind these men (police officers) were guilty. They were guilty of perjury, they were guilty of shooting at an unarmed man who had done nothing.

The indictments filed against the officers were later admitted into evidence.

An examination of the record shows that the criminal prosecutions of these police officers became the significant feature in this civil action. The errors here are so fundamental as to not warrant extensive treatment.

Section 90.410, Florida Statutes (1979) clearly sets forth:

Evidence of a plea of . . . nolo conten-dere ... is inadmissible in any civil or criminal proceeding... .

In Mickler v. Fahs, 243 F.2d 515 (5th Cir.1957), cross examination of plaintiff in civil action as to whether he had been indicted and had entered a plea of nolo contendere to charge of tax evasion was held improper, and an instruction by the court to disregard question did not cure the error.

It was also error to admit into evidence the indictments charging defendant officers with perjury and battery. An indictment is an accusatory pleading, Black, H., Black’s Law Dictionary (rev. 4th ed. 1968), 912, 1311; pleadings are not admissible in evidence to prove or disprove a fact in issue. Cf. Harrold v. Schluep, 264 So.2d 431 (Fla. 4th DCA 1972); Hines v. Trager Construction Co., 188 So.2d 826 (Fla. 1st DCA 1966) (the pleadings of a cause are merely tentative outlines of the position the pleader takes before the case is fully developed on the facts, and hence are inadmissible to prove facts alleged therein).

It was error to bring before the jury the fact that criminal charges had been filed against defendant officers where there were no pleas of guilty entered to the charges and the charges were subsequently dismissed. See, e.g., Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla. 1967) (judgment of conviction in criminal prosecution entered on a plea of guilty may be introduced into evidence in civil cases as an admission against interest). The fact that charges were filed against the officers, which charges were never proved, was irrelevant to the issue of civil liability for actions upon which the charges were originally founded. If a guilty verdict cannot be introduced as evidence to prove liability, and a plea of guilty may be used only because it is an admission against interest, it then follows that nothing less substantial, i.e., indictment and dismissal, can be entered as evidence of liability. Cf. Stevens v. Duke, 42 So.2d 361 (Fla.1949); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943) (a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered). Because the facts surrounding the issue of liability in this case were sharply disputed, bringing before the jury evidence of unproved charges was highly prejudicial.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    METROPOLITAN DADE COUNTY, and Randall Quick, Appellants, v. Michael Dale WILKEY, Appellee.
    No. 81-1287.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Robert A. Ginsburg, Dade County Atty. and Deborah Bovarnick, Asst. County Atty., for appellants.
    J. James Donnellan, III, Miami, for appel-lee.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Because we reversed the jury verdict in companion case, 414 So.2d 269 (Fla.App. 1982), this separate appeal from the order taxing costs is also reversed.

Reversed and remanded for further consistent proceedings.


text:
    Maria R. FRAMIL and Armando Framil, her husband, Appellants, v. METROPOLITAN DADE COUNTY and Officer Douglas Stephenson, Appellees.
    No. 81-1531.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Mascaro & Peppier and Charles Peppier, Miami, for appellants.
    Robert A. Ginsburg, Miami, and Ralph C. Rocheteau, Homestead, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979); Weissman v. K-Mart, 396 So.2d 1164 (Fla. 3d DCA 1981); Lubash v. Stale, 296 So.2d 565 (Fla. 3d DCA 1974).


text:
    Jose R. LOPEZ, Appellant, v. Maria C. LOPEZ, Appellee.
    No. 81-1631.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    A. John Goshgarian, Miami, for appellant.
    Gerald J. Tobin, Miami, for appellee.

      Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: SHARP, Judge.

text:
    James A. BELL, d/b/a The Grey Coach Inn, Appellant, v. Albert JEFFERSON, Appellee.
    No. 81-233.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Leon D. Watts, Titusville, for appellant.
    Carl Wasileski, of Moran & Wasileski, Titusville, for appellee.
   SHARP, Judge.

James A. Bell, d/b/a The Grey Coach Inn, appeals from a final judgment and verdict entered in favor of Albert Jefferson. By its verdict, the jury found Bell negligently failed to maintain the business premises of The Grey Coach Inn in a reasonably safe condition, and that Jefferson suffered injury as a consequence of this breach of duty. We reverse because a review of the record fails to disclose any basis upon which the jury could have found either a causal connection between Jefferson’s injuries and the conduct of Bell as an innkeeper or any breach of Bell’s duty to Jefferson.

The record established that Bell and his wife own a bar in Titusville, Florida, named The Grey Coach Inn. They had on the premises a .22 rifle. The evidence was conflicting as to whether it was kept behind the bar or out of sight in an unlocked storeroom. We will assume the worst case for Bell, that the gun was behind the bar and theoretically accessible to patrons.

On October 5, 1979, Jefferson and his assailant, Lewis, were drinking beer and playing dice outside the Inn. An altercation developed between them and Jefferson slapped Lewis. Lewis left Jefferson and entered the Inn. Lewis testified he walked through the Inn, exited from its rear door and went to his apartment which was nearby. He retrieved his own .22 rifle and returned to the Inn where he shot Jefferson and beat him with the gun.

Jefferson’s case against Bell was predicated on the theory that Lewis injured him with Bell’s rifle. Bell therefore breached his duty to maintain his business premises in a reasonably safe condition by having his .22 rifle located in a place where Lewis could get it and shoot Jefferson. Miracle v. Kriens, 160 Fla. 48, 33 So.2d 644 (1948); Sparks v. Ober, 192 So.2d 81 (Fla. 3d DCA 1966). In support of his theory Jefferson called several witnesses who testified there was a gun kept at the Inn. However, none of these witnesses saw Lewis pick up that gun, nor did they see anyone hand the gun to him. The rifle itself was not in evidence and there was no testimony presented to show the gun that injured Jefferson belonged to Bell.

An appellate court may not substitute its judgment for that of a jury on a question of fact. Vanzant v. Davies, 215 So.2d 504 (Fla. 1st DCA 1968). The only exception to this rule is where there is no competent or substantial evidence to sustain the jury’s verdict, in which case the verdict must be reversed. Jacksonville Coach Company v. Early, 78 So.2d 369 (Fla.1955); South Carolina Insurance Company v. Wolf, 331 So.2d 337 (Fla. 1st DCA-1976).

We conclude there is no competent or substantial evidence in this case to establish that Lewis shot Jefferson with Bell’s rifle, to suggest Bell was involved in the altercation, or to show that Bell had any reason to suspect Lewis would attack Jefferson. Without proof on one of these points, there was no basis for the jury to conclude Bell breached his duty to Jefferson to maintain his Inn in a reasonably safe condition for the benefit of its patrons. Accordingly, the judgment appealed is

REVERSED.

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

      . Several witnesses testified they saw Lewis shoot Jefferson, and Lewis admitted he shot him. One witness said she had seen a gun close to the cash register the night of the shooting. She said she recognized the gun Lewis used to shoot Jefferson, and it was the same .22 rifle from the bar. On cross-examination she was reminded of her deposition testimony in which she said she did not know if the gun Lewis used was the same gun as the one kept at the Inn. She then testified at trial that the gun Lewis carried looked like the gun kept at the Inn. This testimony completely fails to establish the identity of the rifle as Bell’s.


text:
    Peter Daniel SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-478.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    See also, Fla.App., 395 So.2d 575.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Appellant has been granted a belated appeal from his conviction for aggravated assault. We affirm. We previously affirmed the sentence in Smith v. State, 395 So.2d 575 (Fla. 5th DCA 1981); however, our decision predated the Florida Supreme Court’s clarification of its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Villery makes clear that a “split sentence” of two years in prison followed by three years on probation such as the one imposed by the trial court in this case is invalid. Because Villery has retroactive application appellant may seek relief from his illegal sentence by means of a motion for post-conviction relief before the trial court. Fla.R.Crim.P. 3.850.

JUDGMENT AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 784.021, Fla.Stat. (1979).


text:
    Ethridge Eric HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 81-577.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

DISMISSED.

See Ivey v. State, 390 So.2d 812 (Fla. 5th DCA 1980); Brewer v. State, No. 81-528, 413 So.2d 1217 (Fla. 5th DCA 1982).

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    Michael Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-822.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.

      James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

DISMISSED.

See Robinson v. State, 373 So.2d 898 (Fla.1979).

COBB and COWART, JJ., concur.


text:
    Joseph A. FINAN, as Personal Representative of the Estate of Joseph W. Finan, deceased, Appellant, v. DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, and Hernando County, a political subdivision of the State of Florida, Appellees.
    No. 81-995.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P. A., Tampa, for appellant.
    Alan E. DeSerio, Appellate Atty., Jay 0. Barber, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Dept, of Transp., Tallahassee, for appellee Dept, of Transp.
    No appearance for appellee Hernando County.
   PER CURIAM.

Appellant has failed to demonstrate a gross abuse of the trial court’s discretion in the entry of an order setting aside a final default judgment on the issue of liability. Fla.R.C.P. 1.540(b). See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla.2d DCA 1977); County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla.4th DCA 1981). The order is therefore

AFFIRMED.

ORFINGER, COBB and COWART, JJ., concur.


author: ORFINGER, Judge.

text:
    Ross SZELL, Appellant, v. Lawson L. LAMAR, etc., et al., Appellees.
    No. 81-1128.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.

      Lawrence W. Solodky of Law Office of Marvin E. Newman, Orlando, for appellant.
    Howard R. Marsee and R. Barry Morgan of Pitts, Eubanks & Ross, P. A., Orlando, for appellees.
   ORFINGER, Judge.

Appellant filed suit for damages against Melvin G. Colman, as Sheriff of Orange County, contending that the sheriff had improperly dismissed him from his position as deputy sheriff, claiming that he was thus entitled to back wages, lost benefits, costs and attorney’s fees. During the course of the litigation, Colman went out of office and an amended complaint was filed naming his successor, Lawson L. Lamar, as defendant, purportedly under authority of Florida Rule of Civil Procedure 1.260(d). The trial court dismissed the amended complaint with leave to amend, and declining to amend further, appellant suffered the entry of a final judgment from which he appeals. We affirm.

Appellant was appointed deputy sheriff in 1972, and the appellant was terminated by Sheriff Colman on July 11, 1980, following an internal investigation based on a citizen’s complaint. Appellant contends that based on a general order promulgated by Sheriff Colman, he was entitled to certain procedural rights prior to his termination, and that he could not be terminated, except for cause. He further contends that the general order created a contractual right in him and a corresponding obligation on the sheriff, so that his termination constitutes a breach of that contract. We disagree on both points.

A sheriff is authorized to appoint deputies for whose acts he is responsible, to act in his stead. Section 30.07, Florida Statutes (1981). A deputy sheriff holds office by appointment, rather than by employment, and is thus an officer, rather than an employee. Murphy v. Mack, 358 So.2d 822 (Fla.1978). The sheriff has absolute control over the selection and retention of deputies in order that law enforcement be centralized in the county, and in order that the people be able to place responsibility upon a particular officer for failure of law enforcement. Section 30.53, Florida Statutes (1981); Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980); Blackburn v. Brorein, 70 So.2d 293 (Fla.1954); Murphy, 358 So.2d at 825. Thus, a deputy sheriff has no property interest in his office and no constitutional due process protections when he is dismissed. Evans v. Hardcastle, 339 So.2d 1150 (Fla. 2d DCA 1976). Neither does he acquire a contract right by virtue of a disciplinary procedure unilaterally adopted by the sheriff, which the sheriff may similarly modify or completely revoke at will.

Finding no merit to appellant’s remaining issues, the judgment appealed from is

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . One of the issues presented by the parties is the propriety of the substitution, but in light of our decision here, we need not reach that issue.

      . The general order relied on was promulgated by the sheriff during appellant’s tenure as a deputy. It provides for certain disciplinary procedures, but clearly gives the sheriff the right to summarily take action in any matter.

      . Cf. Ison v. Zimmerman, 372 So.2d 431 (Fla.1979), where the Supreme Court held that the enactment of a valid civil service law did not unconstitutionally restrict the duties of the office of sheriff. No civil service law is alleged to exist here. Zimmerman is thus inapposite.


author: COWART, Judge:

text:
    ORANGE COUNTY, Florida, Appellant/Cross-Appellee, v. Lelan Dale DAVIS, Appellee/Cross-Appellant.
    No. 82-90.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Scott E. Wilt, Asst. County Atty., Orange County Legal Dept., Orlando, for appellant/ cross-appellee.

      Chandler R. Muller of Muller & Kirkcon-nell, P. A., Winter Park, for appellee/cross-appellant.
   ON MOTION TO DISMISS

COWART, Judge:

This appeal arises from a dispute over a criminal defendant’s entitlement to costs after successfully defending the criminal charges.

Davis was originally charged with first-degree murder, which charge was ultimately dismissed by the trial court. Of course, the only parties to this criminal proceeding were Davis, as defendant, and the State of Florida, as plaintiff. Davis then, in this same case, filed a motion to tax costs against the State of Florida, seeking reimbursement for numerous expenses incurred in preparing his defense. Orange County filed a response in opposition to Davis’ motion, contesting his entitlement to certain items sought to be recouped. Although not a proper party in the criminal case, Orange County responded, contending that, since it would ultimately become responsible for the payment of all proper costs, denying the county an opportunity to be heard would effectively deny it due process. The trial court ultimately entered an order specifying certain items of cost as certified for payment and denying all others. The order additionally directed that the certified costs “when audited and approved, according to law, be refunded by the Board of County Commissioners.... ” Orange County filed its notice of appeal twenty-eight days later, appealing the costs certified, and Davis filed his notice of cross-appeal eleven days after the county’s notice, cross-appealing the denial of certain items.

On appeal, Davis has filed a motion to dismiss Orange County’s appeal, arguing first, that Orange County was never a party in the lower court proceeding and second, Orange County’s notice of appeal should have been filed within fifteen days, since this is an appeal from a criminal case. See Fla.R.App.P. 9.140(c)(2). Orange County also has filed a motion to dismiss Davis’ cross-appeal, arguing the order appealed is a non-appealable, non-final order and that the trial court lacked jurisdiction over the county so that the county is not a proper party to the cross-appeal. We dismiss both appeals.

These motions raise several interrelated issues: (1) what is the effect of the appealed order; (2) who is a proper party at this point in the proceeding; and (3) what is the proper procedure to recover costs in a criminal case. The statutes provide the answer.

Section 939.06, Florida Statutes (1981), is the operative statute in the instant case and provides:

Acquitted defendant not liable for costs. —No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If he shall have paid any taxable costs in the case, the clerk or judge shall give him a certificate of payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to him by the county.

Thus, when an acquitted or discharged defendant has paid any taxable costs, he must first petition, in the criminal proceeding, the trial judge or court clerk to certify he has paid such costs. Armed with such certification, he next must present his claim to the board of county commissioners. The county commissioners then consider the former defendant’s various items claimed and reimburse all legal claims. If the former defendant disputes the commissioners’ refusal to pay any particular item, the defendant can sue the county in a separate civil action.

Under this procedure, the initial criminal trial court’s order certifying the defendant has paid certain items is purely ministerial. If certain items are refused certification, the dispute is between the defendant and the trial judge in the criminal case and mandamus is the proper remedy. However, certification is only evidence of payment; it is not evidence that the cost is recoverable. The appropriateness of reimbursement for any particular item is not truly put in issue until the county commission denies payment and a civil suit is brought; this way, the real parties in interest (being the former defendant and the county) and the question of the appropriateness and reasonableness of the claimed item are all properly before the court. This procedure sufficiently provides the litigants their due process right to be heard and insures the judicial interest in an impartial decision based on an adversary litigation between real parties in interest. This was the procedure followed in Warren v. Capuano, 269 So.2d 380 (Fla. 4th DCA 1972), aff’d, 282 So.2d 873 (Fla.1973).

Thus, Orange County’s appeal from the trial court’s order certifying certain items for payment is dismissed as an unauthorized appeal of a nonfinal order. Davis’ cross-appeal is also dismissed as an untimely request for review of the denial of certification of certain items. Accordingly, both the appeal and cross-appeal are hereby

DISMISSED.

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

      . Section 939.08, Florida Statutes (1981), provides:
      Costs to be certified by county commissioners before audit. — In all cases wherein is claimed the payment of bills of costs, fees or expenses, other than juror and witness fees, in the prosecution of any criminal case which are payable by the county, an itemized bill or statement thereof shall be submitted to the county commissioners of the county in which such cases are prosecuted, and the same shall not be paid until the board of county commissioners shall have approved it and certified thereon that the same is just, correct and reasonable, and that no unnecessary or illegal item is contained therein.

      . As previously noted, if Davis desired to contest the trial court’s denial to certify certain items for payment, his remedy is a petition for mandamus. Unfortunately, even if his cross-appeal were considered as such, see Fla.R. App.P. 9.040(c), it would fail to include a proper party, see State v. Gordon, 107 So.2d 401 (Fla. 2d DCA 1958).


author: WIGGINTON, Judge.

text:
    Joseph Samford NELSON, Appellant, v. STATE of Florida, Appellee.
    No. AG-482.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is from the trial court’s order revoking Nelson’s probation and imposing a general sentence of three years. The trial court erred in not apportioning Nelson’s sentence and in not taking into consideration in its written order credit for time already served. Dorfman v. State, 351 So.2d 954 (Fla.1977); Robinson v. State, 407 So.2d 1038 (Fla. 1st DCA 1981); Wargo v. State, 393 So.3d 3 (Fla. 1st DCA 1980).

Consequently, we reverse and remand for resentencing in accordance with this opinion.

BOOTH and WENTWORTH, JJ., concur.


text:
    Rubin SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. AH-231.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10 (Fla.1978); § 947.16, Florida Statutes.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Calvin JACKSON, Appellee.
    No. 81-43.
    District Court of Appeal of Florida, Fourth District.
    May 26, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    William N. Hutchinson, Jr., Fort Lauder-dale, for appellee.
   ANSTEAD, Judge.

This is an appeal by the state from a post-conviction order reducing the appel-lee’s life sentence to time served plus three years probation. We reverse.

Calvin Jackson was convicted of rape and sentenced to life imprisonment in 1975. Thereafter, he filed an appeal, alleging among other points that the trial court had erred in allowing a police officer “to testify as to the contents of a B.O.L.O., to the effect that a black male in green pants was dragging a white female into the bushes.” Subsequently, in a notice signed by Jackson himself, the appeal was voluntarily dismissed. In 1976 Jackson filed a motion to mitigate his sentence pursuant to the provisions of Florida Rule of Criminal Procedure 3.800(b) wherein he alleged that “he has seen the error of his ways, [and] is repentant and remorseful concerning the offense of which he was previously convicted.” This motion was denied by the trial court. Finally, on June 20, 1980, Jackson filed the Motion to Vacate and Mitigate Sentence upon which the court acted in entering the order now being reviewed. This motion alleged in essence the same ground for relief asserted in the earlier appeal that had been voluntarily dismissed. On January 9, the same judge who had earlier presided over Jackson’s trial and sentencing, and had denied the motion to mitigate, granted the motion and entered an order modifying Jackson’s sentence. This appeal followed.

Initially, the appellee claims that this court lacks jurisdiction to review the trial court’s order granting his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3.850 itself provides for an appeal from any order entered pursuant to its authority “as from a final judgment on application for writ of habeas corpus.” In addition, Florida Rule of Appellate Procedure 9.140(c)(1)(F) authorizes appeals by the state from orders granting petitions for writ of habeas corpus and Rule 9.140(c)(l)(I) authorizes appeals from an alleged illegal sentence. All of these provisions would appear to apply here. In addition, the case law is clear that both sides have the right to appeal an order entered pursuant to a motion for post-conviction relief. Tolar v. State, 196 So.2d 1 (Fla. 4th DCA 1967); State v. Matera, 378 So.2d 1283 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980). We believe we do have jurisdiction to consider the state’s appeal. We turn now to the merits.

No testimony was taken at the hearing. Rather, both parties apparently relied on the trial judge’s recollection of the trial. As noted, this case was handled by the same trial judge throughout all the proceedings pertinent to the issues involved in this appeal. However, at the hearing counsel for appellee specifically advised the trial court that the basis of the pending motion was the same as that previously asserted on appeal:

The error which is the merit of my motion was, in fact, raised in the assignment of error, to-wit: Number 4, that the trial court erred in permitting, over objection, a policeman to testify as to the contents of a BOLO, to the effect that a black male in green pants was dragging a white female into the bushes.

On appeal the only argument made in ap-pellee’s brief on the merits is that the “granting of a Motion to Vacate and Mitigate Sentence pursuant to Rule 3.850 is within the sound discretion of this trial court.” No other contentions on the merits in support of the trial court’s action are advanced by the appellee. While we agree with appellee’s contention that the trial court has some discretion in considering a motion for post-conviction relief, we con-elude that the trial court erred in this instance.

First, motions for post-conviction relief are not to be utilized as substitutes for appeal. Issues that could and should have been raised on appeal cannot be raised in a motion for post-conviction relief. Foster v. State, 400 So.2d 1 (Fla.1981). In this case, both the record and the statement of appellee’s counsel at the hearing in the trial court confirm that alleged error asserted in the motion for post-conviction relief could have been and was raised on appeal. However, appellee himself voluntarily dismissed his appeal, thereby waiving the errors asserted therein. He cannot now raise those same issues in a post-conviction motion filed in the trial court. Foster v. State.

In addition, even if we assume he was entitled to raise the issue, we believe the appellee failed to demonstrate prejudicial error in the trial court. At the hearing the appellee claimed that the action of the trial judge in allowing a witness to testify that the alleged assailant was black and the victim was white improperly injected the issue of race into the trial and thereby violated the appellee’s right to equal protection of the law under the Fourteenth Amendment to the United States Constitution. We agree with appellee that it would be improper for the state to rely on racial bias or prejudice in prosecuting any defendant, but we do not agree that there has been any demonstration that such was done in this case. In other words, we do not believe there is anything inherently improper or prejudicial in the description of a suspect as a black male and a victim as a white female. This was all that appellee relied on in the trial court. For cases involving this issue see Gluck v. State, 62 So.2d 71 (Fla.1951); Bittner v. State, 330 So.2d 855 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1079 (Fla.1976); Kaymore v. State, 260 So.2d 851 (Fla. 1st DCA 1972).

For the reasons set out above we reverse the order of the trial court.

DOWNEY and DELL, JJ., concur.

      . B.O.L.O. are the initials for a police broadcast to officers to be on the lookout for someone or something of a certain description.

      . He amended this motion on January 9, 1981, at the hearing on the previously filed motion, apparently in an effort to meet some of the objections raised in a motion to dismiss filed by the state.

      .We also agree with the state that the trial court’s order was not authorized by Florida Rule of Criminal Procedure 3.800 which provides:
      Rule 3.800. Correction: Reduction and Modification of Sentences
      (a) A court may at any time correct an illegal sentence imposed by it.
      (b) A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.
      There is no claim here that appellee’s sentence was illegal and Rule 3.800(b)’s time limits are jurisdictional. See De La Paz v. State, 358 So.2d 1093 (Fla. 3d DCA 1978), cert. denied, 359 So.2d 1220 (Fla.1978).

      . There is also a substantial question as to whether a trial court has the authority to modify a sentence under Rule 3.850, when a defendant is claiming that his conviction was tainted by the trial court’s error in admitting evidence.

      . There is also some suggestion in the transcript of the hearing that the trial court was acting because of his concerns for other actions of the state not raised in the motion for post-conviction relief. During the hearing appellee contended that at one point in time he was denied consideration for parole because the state had filed a detainer in his file suggesting that he had committed another crime. In fact this other crime involved another person who had the same name as appellee. This error had apparently been resolved by the time of the hearing. In any case, this was not the error relied upon by appellee in his motion and such error would not constitute a legal basis for the order entered by the trial court.


author: DELL, Judge.

text:
    ABSTRACT AND TITLE CORPORATION OF FLORIDA, Appellant/Cross-Appellee, v. Josephine H. Zorn COCHRAN, Robert H. Cook, Jr., Nancy C. Cook, Michael O’Haire and Thomas F. O’Haire, III, Appellees/Cross-Appellants.
    No. 81-760.
    District Court of Appeal of Florida, Fourth District.
    May 26, 1982.
    Fred T. Gallagher of Vocelle & Gallagher, Vero Beach, for appellant/cross-appellee.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellees/cross-appellants, Zorn and Cook.
    Michael O’Haire and Norman A. Green, Vero Beach, for appellees/cross-appellants, O’Haire.
   DELL, Judge.

This appeal involves an action for specific performance of a right of first refusal by O’Haire against Cochran and the Cooks. The Cooks filed a third party complaint against Abstract and Title Corporation of Florida, alleging that any damage to the Cooks was the result of Abstract and Title’s negligent preparation of the abstract. The trial court upheld the validity of the right of first refusal, but denied specific performance, and found Abstract and Title guilty of negligence. The court ordered the Cochran-Cook deed set aside, ordered Cochran to notify O’Haire in writing of any future sale of the land, and retained jurisdiction to determine the damages for which Abstract and Title would be liable. All parties appeal.

In 1973 Cochran offered for sale a portion of Lot # 36 (Parcel # 1). Her offer contained a right of first refusal to purchase the balance of Lot 36 (Parcel # 2). Cochran entered into a written contract with her friends, the Cooks, which contained a detailed right of first refusal. O’Haire, Cochran’s attorney and friend, drafted this contract. Cochran and the Cooks amicably rescinded their contract. Six months later, O’Haire purchased Parcel # 1 without a written contract, on terms substantially the same as those contained in the Cochran-Cook contract. The deed to Parcel # 1, prepared by O’Haire, conveys the land with an easement for ingress and egress, and subject to certain matters of record. At the end of this lengthy paragraph, the following language appears without emphasis of any kind:

Grantors give to Grantees right of first refusal to purchase balance of Lot 36 [parcel # 2] owned by Grantors.

The deed did not contain the specific terms of the right of first refusal, nor does the deed incorporate the rescinded Coehran-Cook contract by reference.

In 1978 Cochran sold Parcel # 2 to the Cooks without notice to O’Haire. An abstract, prepared by Abstract and Title, did not include the deed to Parcel # 1. All parties to the sale of Parcel # 2, including the Cook’s attorney,. knew of a possible interest in O’Haire, but no one made inquiry of him. After learning of the Parcel # 2 conveyance, O’Haire attempted to exercise his right of first refusal, Cochran refused tender, and O’Haire brought suit.

On cross-appeal, defendants Cochran and the Cooks contend the trial court should have found the right of first refusal invalid for abuse of the attorney-client relationship, and for overreaching. Defendants are correct, and this holding renders moot all other points on appeal.

Although there is nothing inherently wrong with an attorney doing business with his client, such transactions are closely scrutinized, and the measure of good faith which an attorney must exercise in such transactions is much higher than that required in an arm’s length transaction. Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976). The attorney must show not only that he exercised no undue influence, but also that he gave his client all the information and advice which it would have been his duty to give if the transaction were made with a stranger. Bolles v. O’Brien, 63 Fla. 342, 59 So. 133 (1912). The attorney must carry this burden by clear and convincing evidence. Williams v. Bailey, 69 Fla. 225, 67 So. 877 (1915).

The evidence of Cochran’s knowledge of and intent to be bound by a right of first refusal was sharply conflicting. Although she testified that she always stated that whoever bought Parcel # 1 should have first refusal on Parcel # 2, she also testified that she considered this a moral obligation because of the nature of the property, rather than a legal commitment. She testified that O’Haire did not explain the nature and consequences of a right of first refusal, while O’Haire testified that he and Mrs. Cochran discussed the ramifications of the right of first refusal and why it was meaningful in relation to this property. Cochran testified that she trusted O’Haire, never read the documents he prepared for her, that she told him what to do and then signed, trusting that he had followed her instructions. O’Haire testified that Cochran was fairly careful about what she signed, that she would ask him to prepare instruments, then take them home and come back in a week or two after she read them.

This conflicting testimony does not meet the clear and convincing standard required of an attorney who enters business transactions with his client. If we resolve all conflicts in this evidence in favor of O’Haire, two crucial omissions remain. O’Haire testified that he never advised Cochran to seek separate counsel, and that he did not inform Cochran of his intention to place the right of first refusal in recorded form. These omissions mandate a finding that O’Haire did not give Cochran all the information and advice it was his duty to give under Williams and Bolles, supra.

The judgment of the trial court is reversed, and remanded with directions to reinstate the Cochran-Cook deed and rescind the order requiring Cochran to notify O’Haire of any future sale. The liability of Abstract and Title is rendered moot by the holding herein, and the trial court is directed to relinquish its retained jurisdiction.

REVERSED AND REMANDED WITH DIRECTIONS.

BERANEK and HERSEY, JJ., concur.

      . Since the right of first refusal is invalid, the Cooks have no damages for which Abstract and Title can be liable, nor can O’Haire specifically enforce an invalid right. The Cooks also claim the trial court should have imposed a constructive trust in their favor on Parcel # 1, but this claim is clearly without merit.


text:
    Eugene JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-383.
    District Court of Appeal of Florida, Fourth District.
    May 26, 1982.
    Eugene Jenkins, pro se.
    No appearance required of appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion for post-conviction relief, which we affirm. The subject order refers to two pages of the trial transcript but none of the transcript was attached to the order as required by Florida Rule of Criminal Procedure 3.850. We ordered the trial clerk to forward copies of the missing pages to determine the validity of appellant’s claim that defense counsel provided ineffective assistance of counsel by cross-examining the key prosecution witness on the positive results of a polygraph test he had taken. Appellant’s motion and the pages of the transcript to which the motion refers fail to meet the test for ineffective representation enunciated in Knight v. State, 394 So.2d 997 (Fla.1981). Instead, the matter forming the basis of appellant’s allegation fell within the judgment of counsel as to trial tactics and strategy. Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981). Accordingly, relief on this ground is denied.

Our order also directed the trial clerk to forward page 142 of the trial transcript. That page shows two prospective jurors, Mr. McCain and Mrs. Hayes, were peremptorily challenged by defense counsel and excused. Our opinion in appellant’s direct appeal expressly recites the foregoing. Appellant’s charge that his trial counsel failed to challenge peremptorily both jurors is baseless.

AFFIRMED.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.

      . Jenkins v. State, 380 So.2d 1042 (Fla. 4th DCA), pet. for rev. denied, 389 So.2d 1111 (Fla.1980).


author: DANAHY, Judge.

text:
    Cecil BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2200.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Cecil Brown contests the trial court’s refusal to sentence him pursuant to section 958.04, Florida Statutes (1979), the Youthful Offender Act. Following his conviction for second degree murder, Brown moved for sentencing under the Act. At the sentencing hearing the trial judge considered a predisposition report prepared by the Department of Health and Rehabilitative Services. This report recounted Brown’s prior record and contained a recommendation that he be turned over to the Department of Corrections. Despite this, Brown’s counsel argued that he should be classified as a youthful offender. He attempted to present testimony in support of his assertions, but the trial judge refused to allow any testimony, stating that he intended to sentence Brown as an adult. Brown and his co-defendant, Robert Stancil, each received a life sentence.

At the time Brown committed the crime, sentencing under the Youthful Offender Act was mandatory for those defendants who met the statutory criteria. Stancil v. State, 405 So.2d 426 (Fla. 2d DCA 1981). In Stancil, we vacated the sentence of Brown’s co-defendant and ordered him resentenced under the Youthful Offender Act since he met the statutory criteria. Like his co-defendant, Brown also meets the statutory criteria for sentencing under the Act. Because he was sixteen years old at the time of the offense and had been indicted for first degree murder, he meets the criteria of section 958.04(1)(a). Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980). Brown qualifies under section 958.04(l)(b) since he was convicted of second degree murder. Since there is no record of prior classification as a youthful offender, Brown is not disqualified by section 958.04(l)(c). Although he was once charged under chapter 39 in junvenile court with arson, Brown was never found guilty of a felony within the meaning of section 958.04(2)(a). See Blue v. State, 402 So.2d 1339 (Fla. 1st DCA 1981). Finally, Brown qualifies because he was never adjudicated delinquent “for an act which would be a capital, life, or first degree felony if committed by an adult.” § 958.04(2)(b). Since Brown meets the criteria for sentencing under the Act, the trial judge erred when he entered a sentence which did not follow its provisions.

We have considered the other contentions raised by Brown and find them to be without merit.

Accordingly, we vacate Brown’s sentence and order that the trial court resentence him pursuant to the Youthful Offender Act.

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

      . As we noted in Stancil, the legislature has now eliminated the mandatory sentencing provision of the Act.


author: GRIMES, Judge.

text:
    Mark CARRON and Robert Rapone, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-1287, 81-1447.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellants were each convicted of armed robbery, using a firearm in the commission of a felony, and two counts of kidnapping. In this appeal, they attack their convictions for kidnapping.

Daniel Ruper and his brother Keith were home from school because of illness. Early in the afternoon, appellants came to the house stating that they needed to contact a third brother, Lenny. Daniel invited them in and began to telephone a friend of Lenny’s in order to locate him. Rapone pulled a gun and threatened to kill him if he did not put down the phone. He then ordered Daniel upstairs. Appellants went to Keith’s room where they told Daniel and Keith to stay on the bed and be quiet. Carrón held a gun on them while he searched the room. Daniel could hear Rapone rummaging through his mother’s room. When Rapone returned, they moved Daniel and Keith into another room. Carrón discharged a pistol in Daniel’s direction. Rapone then ordered them to lie down and threatened to kill them if they didn’t tell him where they kept the money. Daniel stated that it was in the bank. The appellants then tied Daniel and Keith with telephone wire, picked them up and put them in the bathtub. They threatened to shoot the boys if they called the police. The appellants further rummaged through the house and finally left. The boys freed themselves and ran for help. The appellants were later arrested, and property stolen from the house was recovered.

Appellants were charged with kidnapping under section 787.01(l)(a)2., Florida Statutes (1979), which reads as follows:

(l)(a) “Kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
2. Commit or facilitate commission of any felony.

On the premise that the legislature did not intend to convert every first-degree robbery and every forcible rape into two life felonies, the court in Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), interpreted the foregoing statute as not including movement or confinement that was inconsequential or inherent in the nature of the felony. The court adopted the rationale of State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), in which the Kansas Supreme Court similarly interpreted its somewhat narrower kidnapping statute as follows:

We therefore hold that if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is. The list is not meant to be exhaustive, and may be subject to some qualification when actual cases arise; it nevertheless is illustrative of our holding.

219 Kan. at 216, 547 P.2d at 731.

The First District Court of Appeal followed the Harkins interpretation of the statute. Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981); Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980). However, in Faison v. State, 399 So.2d 19 (Fla.3d DCA 1981), the Third District Court of Appeal suggested that the wording of our statute does not lend itself to the refinements imposed by Harkins. Thus, under a literal reading of the statute, most, if not all, robberies and sexual batteries are also kidnappings.

Recognizing that a reasonable argument can be made in favor of both the Faison and Harkins interpretations, we are inclined toward the position expressed in Harkins. Despite the broad language of the statute, we hold that in order for a person to be convicted of kidnapping with intent to commit or facilitate the commission of another felony, the offending movement or confinement: (1) must not be slight, inconsequential and merely incidental to the other felony; (2) must not be of the kind inherent in the nature of the other crime; and (3) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. See State v. Buggs.

Applying even these standards to the facts of the instant case, we have no difficulty in concluding that appellants’ conduct was such as to support a conviction of kidnapping. The movement of the boys throughout the house was neither slight nor inherent in the robbery. By tying the boys up in the bathtub, appellants substantially decreased the risk of their detection.

Unlike the other Florida decisions on the subject, our inquiry cannot stop here because, in their second point, appellants ar-guc that the court erred in refusing to give an instruction purporting to outline the details of the Harkins interpretation of the statute. Actually, from our examination of the record, we find that Rapone did not request such an instruction. Therefore, he is in no position to assert that the court erred in failing to give it. Fla.R.Crim.P. 3.390(d). However, Carrón did submit a proposed instruction which read as follows:

If you find from the evidence that the confinement of the alleged victims during the robbery was of minimum duration, was without significant movement and did not significantly lessen risk of detection or make the robbery more substantially easier to complete than would any alternative forceable restraint essential to the commission of the robbery, you must find the Defendant not guilty of kidnapping.
If you find from the evidence beyond and to the exclusion of a reasonable doubt that the confinement of the alleged victims during the robbery was not of minimal duration, was with significant movement and did significantly lessen the risk of detection or make the robbery more substantially easier to complete than would any alternative forceable restraint essential to the commission of the robbery, then you must find the Defendant guilty of the charge of kidnapping.

Rather than giving the requested instruction, the court simply tracked the kidnapping statute by reading to the jury the following instruction:

With regard to the charge of kidnapping, kidnapping means forceably, secretly or by threat confining, abducting or imprisoning another person against his will and without lawful authority with intent to one hold for ransom or reward or as a shield or hostage; two, commit or facilitate the commission of any felony; three, inflict bodily harm upon or to terrorize the victim of another person; four, interfere with performance of any governmental or political function.

The troubling question is that if the Harkins interpretation of the statute is correct, how can the jury intelligently make a factual determination of whether a defendant has committed kidnapping with intent to commit or facilitate the commission of a felony unless it is instructed concerning the nature of the movement or confinement required for conviction? Since we have adopted the Harkins interpretation, we are convinced that the court should do more than simply read the statute to the members of the jury in order to properly instruct them on the law. We hold that in a case where the state charges kidnapping with intent to commit or facilitate the commission of a felony, the court should give the jury an instruction containing the essential ingredients of the Harkins interpretation of the statute.

Despite this conclusion, we find it unnecessary to reverse Carron’s conviction. It is not error to refuse to give an instruction which is an incorrect statement of the law. Wells v. State, 270 So.2d 399 (Fla.3d DCA 1972). Carron’s requested instruction would have misled the jury concerning the Harkins interpretation of the statute because it seemed to say that to convict of kidnapping the confinement of the victim had to be more than of minimal duration and with significant movement. Under the Harkins reasoning, there can be a kidnapping through either significant confinement or significant movement. Furthermore, the proposed instruction injected an erroneous requirement that the confinement had to make the robbery easier to complete than would the use of any alternative form of forcible restraint.

Perhaps the court would not have given the instruction even if it had been correctly stated. Yet, we are reluctant to endorse a principle that where a party requests a legally erroneous instruction on subject matter which the appellate courts have not previously suggested as appropriate for a jury instruction, the court must not only perceive the need for the instruction but also straighten it out so as to present a correct legal principle. From our study of the record, we are convinced that both appellants received a fair trial.

Because we recognize that the law of kidnapping in connection with the intent to commit or facilitate the commission of a felony is now in a state of flux, we have chosen to certify to the supreme court the following questions:

1. IN ORDER TO CONVICT OF KIDNAPPING WITH INTENT TO COMMIT OR FACILITATE COMMISSION OF ANY FELONY, TO WHAT EXTENT, IF ANY, MUST THERE BE CONFINEMENT OR MOVEMENT WHICH IS NOT INHERENT IN THE NATURE OF THE OTHER FELONY?
2. SHOULD THE JURY BE INSTRUCTED CONCERNING THE REQUISITE CONFINEMENT OR MOVEMENT?

AFFIRMED.

HOBSON, A. C. J., and CAMPBELL, J„ concur.

      . The pertinent subsection of the Kansas statute read: "... (b) To facilitate flight or the commission of any crime; .. .. ”

      . The holding in Faison did not conflict with Harkins because Faison recognized that the defendant in that case was guilty of kidnapping even under the Harkins interpretation of the statute.

      . Under these circumstances, section 775.-021(4), Florida Statutes (1981), could not be applied to mitigate the punishment because there would be no lesser included offenses.

      . Actually, there is nothing in the statute which even requires the ancillary felony to be committed. Cf. section 810.02 in which the burglary is accomplished once a person enters a structure with the requisite intent.

      . Ironically, some courts place a third interpretation upon similar statutes which is more restrictive than the one we adopt. In those cases, kidnapping convictions have been reversed even where the confinements were of long duration or the movements covered substantial distances. E.g., People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967) (drugging woman and driving her to motel in another borough of New York City for the purpose of sexual assault); People v. Moore, 84 Cal.Rptr. 771, 4 Cal.App.3d 668 (1970) (moving store clerks to back room during the course of a hold-up and locking the door to facilitate escape).

      .This statement should not be read as a criticism of Rapone’s trial counsel. Our study of the record suggests that it was not because of oversight that he did not request a similar instruction. We can fully appreciate that under certain circumstances, defense counsel as a tactical decision may conclude that he would be better off without such an instruction.

      . Cf. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), holding that the jury must be properly instructed on the nature of the movement which is necessary to convict of kidnapping in connection with the commission of another crime.

      . Unfortunately, there is no standard jury instruction on kidnapping.

      . Our decision to require additional jury instructions in order to explain judicial refinements of statutory offenses is not new. E.g., Koltay v. State, 360 So.2d 802 (Fla.2d DCA 1978); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

      . The specific shortcoming to which we refer is in the second paragraph where the phrases “was not of minimal duration” and “was with significant movement” are stated in the conjunctive rather than in the disjunctive.

      . While the requested instruction was apparently adapted from Friend v. State, we view the language which directs the comparison with alternative forms of forcible restraint to be an unwarranted extension of the Harkins standards.

      . While the closing arguments are not included in our record, we note that in denying the requested instruction, the court stated that it would permit counsel to argue to the jury the type of detention that would not constitute kidnapping.


text:
    Paul LENTZ, Appellant, v. Melinda LENTZ, Appellee.
    No. 81-1451.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, Sarasota, and Douglas A. Wallace, Bradenton, for appellant.
    C. Eugene Jones, Sarasota, for appellee.
   DANAHY, Judge.

In this child custody case the appellant, who is the custodial parent, challenges that portion of the order of the trial judge which modified an earlier order, entered upon the stipulation of the parties, by increasing the appellee’s summer visitation period from three to four weeks. We reverse because the motion served on the appellant and heard by the trial court requested only that the court establish specific dates for the appellee’s regular three-week summer visitation period. The appellant contends that he received no notice that the appellee would seek, or that the trial court would consider, modification of the earlier order which established the three-week period and that he had no opportunity to prepare and present evidence relevant to that issue. Case law supports him. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Wallace v. Wallace, 413 So.2d 1261 (Fla. 2d DCA 1982); Sardinas v. Sardinas, 401 So.2d 909 (Fla. 4th DCA 1981); Connors v. Connors, 327 So.2d 877 (Fla. 2d DCA 1976); Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974).

We note the appellee does not argue that enlargement of the three-week summer visitation period was litigated with the implied consent of the appellant. Neither does she argue that an amendment to the pleadings to incorporate a request for an enlarged period was made or sought. Rather, she argues that the appellant should not have been surprised at the enlargement of the visitation period. Even if that is so, we do not agree that a lack of surprise alone can overcome fundamental lack of due process to the. appellant resulting from the failure to give him notice and an opportunity to be heard on the issue decided against him in the order.

Accordingly, we REVERSE the order to the extent it increased the summer visitation period of the appellee from three to four weeks.

HOBSON, A. C. J., and BOARDMAN, J., concur.


author: SCHEB, Chief Judge.

text:
    CITY OF ST. PETERSBURG, Florida, a municipal corporation, Alan N. Harvey, City Manager, Mack Vines, Chief of Police, St. Petersburg Police Department, Appellants, v. PINELLAS COUNTY POLICE BENEVOLENT ASSOCIATION, a labor organization, and Milton G. Young and Michael Lee Henderson, on behalf of themselves and all others similarly situated, Appellees.
    No. 81-1696.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.

      Peter D. Hooper, Asst. City Atty., St. Petersburg, for appellants.
    Donald D. Slesnick, II, Miami, for appel-lees.
   SCHEB, Chief Judge.

The City of St. Petersburg challenges the trial court’s judgment that a municipal disciplinary rule is unconstitutional because of its vagueness and overbreadth.

Appellee Milton G. Young, a police officer employed by appellant City, was charged with violating City Regulations, Chapter 16, entitled Code of Conduct and Disciplinary Measures, Rule 9. This rule prohibited “. .. improper conduct . . . either on or off the job, which would tend to affect the employee’s relationship to his job, his fellow workers, his reputation, or good will in the community.” After being suspended for five days for violating the rule, Officer Young invoked the provisions of a Collective Bargaining Agreement between the City and the Police Benevolent Association (PBA) and filed a grievance against the City. Pursuant to the agreement an arbitrator held a hearing to determine whether there was just cause for Young’s suspension.

Evidence adduced at the hearing indicated that while off duty Young became intoxicated, drove his car through a citizen’s chain-link fence, and left the scene of the accident. The arbitrator found that “the department had a reasonable basis for concluding that [Young’s] conduct offended Rule 9 standards which are reasonable standards.” In response to Young’s argument that the regulation was unconstitutional, the arbitrator observed that he was not empowered to rule on its constitutionality.

Subsequently, the PBA, Young, and another officer, on behalf of the police department employees, filed suit against the City, its manager, and the chief of police. They alleged that rule 9 was unconstitutionally vague and overbroad. They sought to have the court order the City to repeal the rule and compensate Officer Young for the losses he sustained as a result of its application. The trial court agreed with appellees that Officer Young had a property interest in his continued employment and found that there were no material facts at issue. The court granted appellees’ motion for summary judgment and held that the rule failed to comport with the due process requirements of the Fourteenth Amendment to the United States Constitution. The court further ordered the City to rescind the regulation and to compensate Officer Young for the losses he sustained due to its application. This appeal ensued.

At the outset we note that appellees agree that the arbitrator correctly found that his conduct violated rule 9. They emphasize, however, that the arbitrator did not decide whether the rule was constitutional. Since the trial court focused solely on the constitutionality of the rule, we likewise limit the scope of our review to this issue.

We agree with appellees that a penal statute or ordinance which proscribes conduct must define with particularity the conduct which would constitute a violation. Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977). Here, of course, we are dealing with a noncriminal municipal regulation and, as appellant points out, the test for vagueness is more lenient where an administrative rule, rather than a penal statute, is being examined. The United States Supreme Court recognized this in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), where the court refused to find that the phrase “for such cause as will promote the efficiency of the services” was vague or overbroad. The quoted phrase authorized removal or suspension of an employee without pay, and the court reasoned that the word “cause” was a sufficient check on the government’s authority.

In determining whether an administrative personnel rule is unconstitutionally vague or overbroad, Florida courts generally consider two factors. Such rules have been upheld where persons of common intelligence are not required to guess at their meaning and where the employee subject to discipline was properly apprised that his conduct was proscribed by the rule.

In Jones v. City of Hialeah, 294 So.2d 686 (Fla.3d DCA 1974), the court determined that police officers could be disciplined for violating a regulation which prohibited “conduct unbecoming a police officer.” There, an officer was dismissed for allegedly engaging in sexual misconduct while on duty. The court found that “conduct unbecoming” was not so amorphous that men of common intelligence must guess at the meaning.

In Richter v. City of Tallahassee, 361 So.2d 205 (Fla. 1st DCA 1978), the court held that a provision in the City’s Personnel Policies and Procedures Manual which referred to “conduct below the standard which can reasonably be expected for the position held” was not void for vagueness. There, a city fireman attempted to smuggle marijuana. The court concluded that the fireman would be apprised by virtue of the nature of his actions that his conduct was unbecoming one in his position.

As a police officer, Young was charged with enforcing the law and exercising discretion in dealing with the multiplicity of challenges which confront law enforcement officers in our society. We think the language of rule 9 was sufficient to give him notice that his actions would violate that rule. A disciplinary rule such as the one in this case must be flexible, as the employer will surely be confronted with misconduct not specifically proscribed. We recognize that there may be instances where the application of rule 9, depending upon the nature of the charges, could be subject to constitutional challenge. However, in the context in which the court examined rule 9, it meets the tests for constitutionality enumerated in the Florida cases. Rules of this type serve a legitimate function in the administrative setting. Therefore, we find it to be a valid personnel rule, and appellees’ challenge based upon vagueness and overbreadth must fail.

Accordingly, we vacate the summary judgment for appellees and direct the trial court to enter judgment for appellants.

HOBSON and GRIMES, JJ., concur.


text:
    John Wayne SCHRAMM, Appellant, v. STATE of Florida, Appellee.
    No. 81-2397.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and term of five years imprisonment. However, this cause is remanded to the trial court for correction of the apparent clerical error in the order of judgment and sentence. Appellant is to be resentenced, in accordance with section 893.135, Florida Statutes (1979), to the minimum mandatory fine of $100,000.00.

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


text:
    David PEARCE, Appellant, v. Honorable Broward N. PARSONS, County Judge, and Johnson-Prewitt & Associates, Inc., a Florida corporation, Appellees.
    No. 81-2557.
    District Court of Appeal of Florida, Second District.
    May 26, 1982.
    Hubert R. Lindsey and F. Kendall Slink-man, West Palm Beach, for appellant.
    Jack J. Rafter, Jr., Clewiston, for appel-lees.
   SCHEB, Chief Judge.

Appellant David Pearce seeks a writ of common law certiorari from the circuit court’s denial of his petition for a writ of certiorari or prohibition. He challenges the circuit court’s failure to grant him relief from a county court order setting aside its prior order transferring a complaint and counterclaim to the circuit court. The county court’s order had the effect of reducing the amount of Pearce’s counterclaim. We find that the circuit court eired in failing to grant appellant’s writ and reverse.

Johnson-Prewitt filed a claim for $2,500 in county court against appellant Pearce. Pearce counterclaimed for an amount in excess of the county court jurisdiction and moved to transfer the action to the circuit court. The county court granted the motion and ordered the cause transferred on October 29, 1979, although Pearce had not deposited the clerk’s service charge as required by Florida Rule of Civil Procedure 1.170(j). On December 12, Johnson-Prewitt moved to set aside the transfer because Pearce had not paid the service charge. On December 20, prior to a hearing on the motion, Pearce deposited the requisite sum with the clerk of the court. Subsequently, on January 10, 1980, the court denied the motion. Then, on January 15 the court, citing a clerical error, entered an order setting aside its order of January 10. On March 7 the court entered a further order setting aside the transfer and reducing Pearce’s counterclaim. Pearce timely petitioned the circuit court to grant a writ of common law certiorari or a writ of prohibition to prevent the county court from proceeding with the case. When the circuit court denied Pearce’s petition, he sought relief from this court.

Pearce argues that the county court’s order should be set aside on two grounds. First, he contends that the county court did not have jurisdiction at the time the order was rendered. Second, he urges that as Johnson-Prewitt suffered no prejudice by the delay in payment of the service charge, the trial court’s sanction was too severe.

Florida Rule of Civil Procedure 1.170(j) provides:

If the demand of any counterclaim or cross-claim exceeds the jurisdiction of the court in which the action is pending, the action shall be transferred forthwith to the court of the same county having jurisdiction of the demand in the counterclaim or cross-claim with only such alterations in the pleadings as are essential. The court shall order the transfer of the action and the transmittal of all papers in it to the proper court if the party asserting the demand exceeding the jurisdiction deposits with the court having jurisdiction a sum sufficient to pay the clerk’s service charge in the court to which the action is transferred at the time of filing the counterclaim or cross-claim. Thereupon the original papers and deposit shall be transmitted and filed with a certified copy of the order. The court to which the action is transferred shall have full power and jurisdiction over the demands of all parties. Failure to make the service charge deposit at the time the counterclaim or cross-claim is filed, or within such further time as the court may allow, shall reduce a claim for damages to an amount within the jurisdiction of the court where the action is pending and waive the claim in other cases.

(Emphasis supplied.) Thus, the rule authorizes the court to determine if these requirements have been satisfied prior to transfer of the action. Here, the court ordered the transfer even though the service charges had not been paid. The rule permits the court to extend the time for making the required deposit, and we think the court’s order transferring the cause was an implied extension of time upon which appellant relied. Once the time for rehearing of the transfer order expired, it became final and jurisdiction vested solely in the circuit court. At that point the county court was without authority to remove the case from the circuit court.

In addition, public policy does not favor removal of an action for failure to pay service charges where, as here, appellant evinced no intent to evade or violate the rules of procedure. Prior to the motion to set aside, both parties had proceeded in circuit court. Eight days after appellant was notified of the required service charges by virtue of Johnson-Prewitt’s motion to set aside the transfer, he deposited the required sum. The timely deposit of a required filing fee is not jurisdictional. Williams v. State, 324 So.2d 74 (Fla.1975).

Accordingly, we reverse the circuit court’s denial of appellant’s petition for writ of certiorari or prohibition, direct the circuit court to reinstate the instant complaint and counterclaim, and remand the cause for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ„ concur.

      . We note that appellant’s petition to the circuit court seeking review of the county court’s order was an original proceeding. Thus, we have jurisdiction to review by plenary appeal. Art. V, § 4(b)(1), Fla.Const.; County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979). Accordingly, we treat appellant’s petition for writ of certiorari as a notice of appeal. Fla.R.App.P. 9.040(c).


author: OTT, Judge.

text:
    Albert Jay KETROW, Appellant, v. STATE of Florida, Appellee.
    No. 81-1503.
    District Court of Appeal of Florida, Second District.
    May 28, 1982.
    Jerry Hill, Public Defender, and Linda Alperstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant, Albert Jay Ketrow, appeals his •conviction by jury for grand theft in violation of section 812.014(2)(b)l, Florida Statutes (1981). Ketrow was sentenced to three years imprisonment.

Evidence in the record indicates that Ket-row absconded with a construction trailer from a building site. The trailer was taken to a vacant lot where it was looted and partially dismantled. The owner of the vacant lot testified that he had given Ketrow permission to park a trailer on the lot for a few weeks because Ketrow’s truck was in the garage.

Ketrow’s defense at trial was that he had taken the trailer only because his boss had instructed him to do so. During direct examination Ketrow attempted to testify concerning what his boss had told him about the trailer. The testimony was objected to on hearsay grounds, and the court sustained the objection. No proffer was made.

Ketrow now argues that the trial court committed reversible error by refusing to let him testify to what his boss had said concerning the stolen trailer.

However, Ketrow has not properly preserved this point on appeal, and we are therefore excluded from considering the merits. Specifically, Ketrow’s counsel failed to proffer his intended testimony. It is clear that failure to make a proffer of evidence which would demonstrate that the proposed evidence was improperly excluded prevents appellate consideration or acceptance of the point. Cason v. Smith, 365 So.2d 1042 (Fla. 3d DCA 1978); City of Hialeah v. Revels, 123 So.2d 400 (Fla. 3d DCA 1960). While the consequences of this rule are harsh, we feel it is necessary to ordered justice and prevents an appellate panel from speculating as to what someone might have said or what some document might have contained, as well as what effect, if any, it may have had on the result.

Assuming arguendo that the point had been properly preserved, undoubtedly it would be mired in the harmless error doctrine. A reading of the transcripts indicates that Ketrow was successful in getting his version of the story before the jury. The record reflects, through the testimony of a police officer, that appellant was told by his boss to pick up the trailer. Similarly, before the specific conversation between Ketrow and his boss was objected to, Ket-row was allowed to assert that he had been sent by his boss to pick up the trailer. The jury did not believe that such was the case.

Accordingly, the adjudication of guilt and sentence is AFFIRMED.

HOBSON, A. C. J., and SCHOONOVER, J., concur.


text:
    K. E. MORRIS ALIGNMENT SERVICE, INC., Appellant, v. TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY, etc., Appellee.
    No. 81-1714.
    District Court of Appeal of Florida, Second District.
    May 28, 1982.
    Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hayes & Hoft, Tampa, for appellant.
    William C. McLean, Jr., Tampa, for ap-pellee.
   DANAHY, Judge.

The appellee (the Expressway Authority) condemned a portion of a parcel of property in Tampa owned by the appellant (Morris Alignment Service). Morris Alignment Service operated a business on the remaining land adjacent to that taken. Morris Alignment Service had been in business continually in Hillsborough County since 1946, but had been located on the adjacent land only three years and eight months prior to the taking. The trial judge held as a matter of law that Morris Alignment Service was not entitled to business damages under section 73.071(3)(b), Florida Statutes (1981). The statute provides that:

(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
(b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is ... for the condemnation of a right of way, and the effect of the taking of the property involved may damage or destroy an established business of more than five years’ standing, owned' by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause.

The trial judge interpreted the statute as requiring that a business be located on the adjacent land for at least five years. We disagree, and reverse.

The issue here has not been addressed previously by a Florida court. The Expressway Authority has called our attention to two casdfe which contain language supportive of the trial judge’s interpretation of the statute, one from this court and one from the third district court of appeal. In Hooper v. State Road Department, 105 So.2d 515 (Fla. 2d DCA 1958), we held that a condemnee was entitled to business damages under section 73.071(3)(b) because it operated a business which had been located on the adjacent property for over five years, although the condemnee had purchased it only a year prior to instigation of the condemnation, proceedings in that case. Some language in our opinion could be interpreted as indicating that the affected business must have been on the adjacent land for at least five years. In Division of Administration v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977), our sister court stated in dicta that the claimant in that case was not entitled to business damages because its business had not been operated on the adjoining land for more than five years “as further required by the statute.” The court commented that the fact that the claimant as a company had been incorporated and doing business elsewhere throughout the state since the early 1950’s did not satisfy the five-year requirement under the statute. We choose not to follow the reasoning of the Ely case in this respect, and recede from Hooper to the extent that the language of that case indicates a contrary result.

Basic rules of sentence construction support Morris Alignment Service’s position in this case. To qualify for damages under the statute, there must be “an established business of more than five years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party.” If the word “and” is substituted for each comma in the quoted language, the qualifications would be expressed as “an established business of more than five years’ standing and owned by the party whose lands are being so taken and located upon adjoining lands owned or held by such party.” In our view, a claimant meeting each of these three tests qualifies for business damages under the statute.

In this case, Morris Alignment Service meets each of the three requirements. It is an established business of more than five years’ standing. It is owned by the party whose lands are being taken. It is located upon adjoining lands owned or held by that party. If the legislature had intended the requirement that the business be located on the adjacent land for five years, it could have used plain language to so provide. As we read the statute, however, the three requirements do not modify each other; each stands alone and if each is met, the claimant is entitled to business damages under the statute.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

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


author: DOWNEY, Judge.

text:
    Richard Frank MARTINEZ a/k/a Rick Hernandez, Appellant, v. STATE of Florida, Appellee.
    No. 80-636.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 16, 1982.
    Paul Morris of Law Office of Paul Morris, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Trela J. White and Ondina Felipe, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

The trial court refused to suppress a quantity of cocaine that appellant Martinez had abandoned while fleeing the police after a “drug courier profile” detention at Fort Lauderdale International Airport. Appellant seeks reversal of a judgment of guilty of possession of cocaine upon the ground that the order denying his motion to suppress was erroneous.

The trial judge entered a detailed order containing findings of fact and conclusions of law denying the motion to suppress. In the pertinent parts of that order the court stated:

1. That on about July 28, 1978, the Defendant, Richard Frank Martinez, was arrested at Fort Lauderdale International Airport by special agents of the Broward County Sheriff’s Department who were acting initially under the “narcotic courier profile” which had been developed by the Drug Enforcement Administration of the Federal Government, and, subsequently, been employed and adopted by the Broward County Sheriff’s Department for use at the Fort Lauder-dale International Airport.
2. The Court specifically finds that on or about the day in question, the Defendant presented himself at the Delta Airlines ticket counter, where he stepped in line and obtained a ticket for passage by airline to Tampa, Florida; that he had a shoulder bag as luggage and paid for his ticket in cash; that he was nervous and appeared apprehensive. By looking around, he was “eye-balled” by Officer Roger Julianelli. That, based on the above conditions, the officer and his partner followed the Defendant while he left the Delta Airline ticket counter and proceeded through the airline security electronic baggage checking apparatus and kept looking back at the officers while doing so.
3. That, after the luggage passed through the electronic security check and it was picked up by the Defendant, he was approached by the officers who stated to the Defendant that they were police officers investigating narcotics’ violations at the airport, and that they wished to speak to him and asked the Defendant for identification.
4. That the Defendant was nervous, upset, began to sweat and was unable to intelligently answer the questions posed by the officers. Further, the Defendant told the officers that his name was Martinez and that he had no identification on him and that the name on the airline ticket was that of Hernandez which was in conflict with that of the Defendant. The ticket held by the Defendant was surrendered at the request of the officers. Clearly, the Defendant did not consent to the initial stop; therefore, the Court considers this a detention.
5. That the Defendant was escorted by officers into a private room. Once in the room, the Defendant attempted to flee by running into a restricted area, causing Detective Julianelli to follow in pursuit of the Defendant.
6. That Detective Julianelli ran after the Defendant and, after a short chase, apprehended the Defendant, who had crawled under a baggage cart. At this time the Defendant removed the cocaine from his leg area and cast it aside.

The trial judge’s finding that Martinez was detained is supported by Martinez’s testimony that, after the officers took his ticket and searched his shoulder bag with his consent, they asked if he would submit to a body search. He refused because he was in a hurry to catch his plane. When he refused the officers took him downstairs for further questioning. When he asked, “What is going on?” one of the officers told him he was being detained and he was taken by the arm and led downstairs.

In reviewing the order in question, it is necessary for us to determine whether the police had a reasonably founded suspicion to detain Martinez at the time he departed the baggage room. If not, he was free to leave and the police had no right to chase him as they did.

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Supreme Court held that as a matter of law the police did not have reasonable suspicion to detain Reid. The scenario in that case is quite similar to the one confronting us. In Reid, Federal Drug Enforcement Administration officers observed Reid deplane an early morning flight from Fort Lauderdale at the Atlanta Airport. As they came off the plane another man, Williams, was separated from Reid by several other persons. Each of these men carried a shoulder bag. As they proceeded through the concourse past the baggage claim area, Reid occasionally looked backward toward Williams. When they reached the main lobby Williams caught up to Reid; they conversed momentarily; and then they left the terminal together. A DEA agent approached them outside the building, identified himself as a federal narcotics agent, and asked them to show their airline tickets, which they did. It appeared the tickets had been purchased with Reid’s credit card and that the men spent only one day in Fort Lauder-dale. Reid and Williams appeared nervous during the encounter. When asked if they would return to the terminal and consent to a search of their persons and shoulder bags, Reid nodded his head affirmatively and Williams responded, “Yeah, okay.” As the group was entering the terminal, Reid fled and abandoned his shoulder bag before he was apprehended.

The trial court in Reid entered an order granting a motion to suppress, which was reversed by the Georgia Court of Appeals, the latter court holding that the DEA agents had lawfully seized Reid when he was approached outside the terminal building. The Supreme Court of the United States vacated the judgment of the Georgia Court of Appeals because the Supreme Court held it could not approve the Georgia Court of Appeals’ determination that the DEA agents lawfully seized Reid when he was approached outside the airline terminal. The judgment of the Court of Appeals was therefore vacated and the cause remanded for further proceedings.

Only two material differences exist between the drug courier profile factors in Reid and this case. In Reid the subject was inbound from Port Lauderdale and the DEA agent learned from the tickets that the trip was a one day turn-around trip. In the present case Martinez was outbound to Tampa and had used a false name on the ticket. In our judgment these differences are not sufficient to permit us to conclude that the officers reasonably suspected Martinez of criminal activity. Absent reasonably founded suspicion, the officers had no authority to detain Martinez. Thus the trial judge erred when he found they had such authority. That detention invalidated anything that transpired after Martinez departed the baggage room. Therefore, the motion to suppress should have been granted.

Accordingly, upon authority of Reid v. Georgia, supra, we are constrained to reverse the judgment appealed from and remand the cause with directions to discharge the appellant.

REVERSED AND REMANDED with directions.

GLICKSTEIN, J., and PEARSON, DANIEL S., Associate Judge, concur.

      . The judgment was entered pursuant to a nolo contendere plea in which Martinez preserved the right to question the validity of the order of suppression on appeal.


text:
    STATE of Louisiana v. Mark M. PETRIE.
    No. 82-K-0094.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   Writ Granted. On this post conviction application we vacate the ruling of the trial court and return this matter to the district court for re-opening of the evidentiary hearing.

At the evidentiary hearing which was held in the district court on November 20, 1981, the trial judge, defense counsel, and the assistant district attorney, focusing on the defendant’s guilty plea to attempted forcible rape and whether it was knowing and voluntary when entered, were all apparently under the mistaken impression that at the time of the offense La.R.S. 14:42 still provided for the death penalty relative to the aggravated rape offense with which defendant was originally charged. In fact, the statute had been amended by Act 343 of 1977 effective September 9,1977, to provide for the penalty of life imprisonment, not death. The offense occurred on or about February 18, 1978. His guilty plea was entered on May 30, 1978.

An appropriate and just decision on the defendant’s application can be made only when the evidence is presented by witnesses cognizant of the state of the law at the time of the offense and of entry of the guilty plea.

MARCUS, BLANCHE and WATSON, JJ., would deny the writ.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Jesus RUIZ and Geoffrey Austin Sweeney.
    No. 82-K-0984.
    Supreme Court of Louisiana.
    May 7, 1982.
   Re State of Louisiana, applying for writ of Review, Parish of Ouachita, Number 40,-658.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.

LEMMON, J.,

concurs. Although the ruling is probably incorrect, the application does not warrant the exercise of supervisory jurisdiction.


author: BLANCHE, Justice

text:
    Deborah Kaye HARDY, et al. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al.
    No. 82-C-0919.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re City of Natchitoches, applying for Certiorari, or Writ of Review, to the Court of Appeal, Third Circuit, No. 8662, Natchi-toches Parish; 412 So.2d 208.

Denied.

MARCUS, J., would grant the writ.

BLANCHE, J., would grant the writ and assigns reasons.

BLANCHE, Justice

(dissenting from denial of the writ application in behalf of defendants).

I respectfully dissent. The awards for future medical and future loss of wages are, in this writer’s opinion, an abuse of discretion. The principal sums awarded, if modestly and prudently invested, would yield annually two to four times either the annual earnings of plaintiff, or the projected annual medical expenses.

In this writer’s opinion, the guideline based on a return of earnings clearly indicates that the calculations of plaintiff’s expert witness, which were relied upon by the court, were unrealistic.


text:
    Deborah Kaye HARDY, et al. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al.
    No. 82-C-0934.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re State of Louisiana, Department of Transportation and Development, Applying for Certiorari, or Writ of Review, to the Court of Appeal, Third Circuit, No. 8662, ■Natchitoches Parish; 412 So.2d 208.

Denied.

MARCUS, J., would grant the writ.

BLANCHE, J., would grant the writ and assigns reasons.

BLANCHE, Justice

(dissenting from denial of the writ application in behalf of defendants).

I respectfully dissent. The awards for future medical and future loss of wages are, in this writer’s opinion, an abuse of discretion. The principal sums awarded, if modestly and prudently invested, would yield annually two to four times either the annual earnings of plaintiff, or the projected annual medical expenses.

In this writer’s opinion, the guideline based on a return of earnings clearly indicates that the calculations of plaintiff’s expert witness, which were relied upon by the court, were unrealistic.