author: SHORES, Justice.

text:
    Marie Reese DURHAM v. Hoyt DURHAM and Derward Durham.
    79-878.
    Supreme Court of Alabama.
    April 24, 1981.
    Rehearing Denied June 19, 1981.
    T. J. Carnes, of Carnes & Carnes, Albert-ville, for appellant.
    J. C. Kellett, of Kellett & Gillis, Fort Payne, for appellees.
   SHORES, Justice.

B. S. Durham died testate in June, 1979. He left surviving a widow and two adult sons. The decedent and his wife were married in 1977. At the time of the marriage, Mr. Durham owned a home in Fort Payne, and Mrs. Durham owned a home in Albert-ville. In 1978, the two bought a third house located in Albertville, which was placed in their joint names with right of survivorship. By his will, Mr. Durham provided, in part, as follows:

ITEM II
My immediate family consists of my wife, Marie Reese Durham, and a son, Derward Durham, and a son, Hoyt Durham.
ITEM III
I give, devise and bequeath my home and the property on which it is located to Derward Durham and Russell Durham, if they survive me. If one of them fails to survive me, I give, devise and bequeath my property to the survivor of them.
ITEM V
Section A
I give, devise and bequeath fifty shares of Fort Payne Bank Stock to my wife, Marie Reese Durham, if she survives me.
Section B
I give, devise and bequeath to my wife, Marie Reese Durham, the sum of $10,-000.00. There should be sufficient funds in my Savings Certificates to pay this amount. If not, my executors should pay the total sum from the assets of my estate.

The will named the two adult sons, Hoyt and Derward Durham, co-executors. When the co-executors filed their petition for final settlement, the widow, who did not dissent from the will, filed a petition seeking the following relief:

1. That the executors be ordered to pay the $10,000.00 legacy to her;

2. That the court construe the bequest of Fort Payne Bank stock so as to provide to her a bequest of an equivalent amount of stock in the holding company in which the Fort Payne stock had been transmuted;

3. That a homestead exemption be set aside for her; and

4. That she be awarded a personal property exemption of $2,000.00.

The $10,000 legacy was paid by the executors and, after a hearing, the trial court denied the other relief sought by the widow, holding that the testator owned no Fort Payne Bank stock when he died and that the holding company stock issued in exchange therefor was owned jointly with a son with right of survivorship. The trial court refused to set aside a homestead exemption to the widow, finding that the decedent resided in Albertville at the time of his death. The court did not award the widow $2,000 as personal property exempt to her as requested. She appealed. We affirm in part and reverse in part and remand.

The Stock Issue

It is not disputed that the decedent and his son, Hoyt, owned shares of stock in Fort Payne Bank. This stock was held in their names “as joint tenants with right of survivorship.” In time, the bank joined a holding company, and the bank stock was exchanged for shares in Alabama Bancorpo-ration. The decedent and his son, Hoyt, received shares of the holding company stock. The certificates of stock in the holding company were issued to “B. S. Durham and Hoyt Durham, JT TEN.” The reverse side of the certificate defines “JT TEN” as “joint tenants with right of survivorship and not as tenants in common.”

The appellant argues that the legend on the reverse side of the certificate is not a part thereof and that § 35-4-7, Code of Ala. 1975, provides that there is no surviv-orship between joint tenants unless “it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship. . .. ” Although we agree with the appellant that § 35 — 4-7 requires that the instrument itself state the incidence of survivorship, we hold that it did here by virtue of § 10-2A — 40(f), Code of Ala. 1975, which provides:

(f) Abbreviations may be used in the inscribing of certificates representing shares of stock. Without limiting the use of other abbreviations, however, the following or substantially similar abbreviations may be used in the inscribing of such certificates only if explained on the face or back of the certificates, and shall be construed as though they were written out in full and shall be accorded the meaning ascribed herein:
Abbreviation: Meaning:
TEN COM As tenants in common
JT TEN As joint tenants with right of survivorship and not as tenants in common.

The Homestead Exemption Claim

There is evidence to support the trial court’s finding that the decedent, at the time of his death, lived in the Albertville house, which was held by him and his wife as joint tenants with right of survivorship. This house, then, was the homestead. It has been said that the term “homestead” is nowhere defined in our Constitution, nor by statute. “Homestead for Survivors in Alabama,” 27 Ala.L.Rev. 443 (1975). It is particularly regrettable that this is so because, as one writer has noted, “one of the most complicated and inscrutable areas of Alabama law is that found in the homestead statutes.” Holt, “Intestate Succession in Alabama,” 23 Ala.L.Rev. 319 (1971). This Court has approved the following definition:

A homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.

Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936). The Court has also defined homestead as “the roof that shelters and the land actually used in connection therewith for the comfort and sustenance of the family. . . . ” Mullins v. Baker, 193 Ala. 594, 596, 69 So. 516, 517 (1915). From these and other statements, it can be said that the homestead of a decedent is made up of his home, and home means the house occupied by him (or her) at death. See Wildman v. Means, 208 Ala. 487, 94 So. 823 (1922).

By this definition, Mr. Durham’s homestead was the home shared by him and his wife in Albertville at the time of his death. Since it was owned by them jointly with right of survivorship, the widow takes fee simple title under the deed, and the provisions of the Constitution and homestead statutes are inapplicable. Jones, “Alabama Probate Law — Need for Revision of Intestate Provisions,” 20 Ala.L.Rev. 1 (1967); Holt, supra, at 348.

It is only when the decedent has no homestead that the surviving spouse is entitled to the homestead exemption of $6,000 out of other real estate owned by the decedent. Section 6-10-61, Code of Ala.1975. Because the decedent here had a homestead, as defined by our law, in Albertville, the widow is not entitled to an additional $6,000 out of other real estate owned by her husband.

The Personal Property Exemption

The trial court made no determination of whether the widow was entitled to the $2,000 personal property exemption claimed by her. By virtue of § 6-10-64 et seq., Code, the widow is entitled to personal property of the decedent of the value of $2,000. There is evidence in the record that the widow has selected or had delivered to her, §§ 6-10-65 and 6-10-81, certain items of personal property, including a riding lawn mower, china, etc. However, the record is silent with respect to the value of these items. If the court determines that they have a value of $2,000, then the widow is entitled to no more under the statutory structure providing this exemption to her. If, however, the personal property selected by the widow, or delivered to her, has a value of less than $2,000, she is entitled to the difference either in cash or other items of personal property. Such is the mandate of the legislature.

The cause is reversed for a determination of the personal property exemption issue. In all other respects, the judgment appealed from is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Harold Joe MONROE, alias v. STATE.
    6 Div. 413.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

This is an appeal from a judgment rendered in the Tenth Judicial Circuit denying appellant’s discharge in a habeas corpus proceeding. Pursuant to a Rendition Warrant, issued by Honorable Fob James, Governor of the State of Alabama, appellant, Harold Joe Monroe, alias Percy Roberson, was to be extradited to the State of Texas for the crime of capital murder committed in that state.

At the hearing on the petition the prosecutor introduced into evidence the following documents: (1) the rendition warrant from the Governor of Alabama, (2) the requisition from the Governor of Texas, (3) request to the Governor of Texas from the District Attorney of Harris County, Texas, to issue a requisition warrant to the Governor of Alabama for the return of appellant to that state to face charges for capital murder, (4) copy of the indictment returned by the Grand Jury of Harris County, Texas, charging appellant with the offense of capital murder, (5) arrest warrant issued by the District Clerk’s office of Harris County, Texas, for the apprehension of appellant, (6) certification by the Clerk of the District Court that the indictment is a true and correct copy of the indictment on file in his office, (7) certification from Hon. Lee Dug-gan, Jr., one of the judges of the District Court of Harris County, Texas, that Ray Hardy is the Clerk of the District Court of Harris County, Texas, and the proper custodian of the records of said court, and that his signature is genuine, and a certification by the Clerk that Lee Duggan, Jr., is one of the duly commissioned and qualified judges of said court and that his signature to the foregoing certificate is his genuine signature, (8) the designation of named agents to receive appellant from the proper authorities in Alabama, signed by the Governor of Texas and attested by an Assistant Secretary of State with the Great Seal of Texas affixed thereto, and (9) the fingerprint records of appellant from the State of Texas together with his photograph.

The rendition warrant reads as follows:
“In the Name and by the Authority of the
“STATE OF ALABAMA
“I, FOB JAMES. Governor of the State To any Sheriff, Coroner, Constable or other Officer authorized by Law to make Arrests send Greeting:
“Whereas, His Excellency, W. P. CLEMENTS. JR. Governor of the State of TEXAS, by requisition dated the 27TH day of JUNE. 1980 has demanded of me, as Governor of the State of Alabama, the surrender of PERCY ROBERSON who, it appears, is charged by CERTIFIED COPIES OF INDICTMENT AND CAPIAS in the County of HARRIS in said State, with the crime of CAPITAL MURDER (a duly certified copy of which CERTIFIED COPIES OF INDICTMENT AND CAPI-AS accompanies said requisition) and it appearing that said PERCY ROBERSON has fled from justice in said State and taken refuge in the State of Alabama.
“Now Therefore, I, FOB JAMES Governor of the State of Alabama, in obedience to the Constitution and Laws of the United States and the Laws of the State of Alabama, do command you to arrest the said PERCY ROBERSON if HE be found within the limits of this State, and to deliver HIM into the custody of SHERIFF JACK HEARD. CAPT. W. F. ROBI-CHAUX. J. B. MOTT. DONALD BRIS-TER AND R. M. GONZALES the duly authorized Agent (or Agents) of the State of TEXAS. And of the execution of this warrant you will make due return to me.
“In Testimony Whereof, I have hereunto set my hand and caused the Great Seal of the State of Alabama to be affixed by the Secretary of State, at the Capitol, in the City of Montgomery on this day.
JULY 21,1980
Date
(ALABAMA /s/Fob James_
GREAT SEAL) Fob James Governor
/s/Don Siegelman_
Don Siegelman Secretary of State”

The requisition from the Governor of Texas reads as follows:

“THE STATE OF TEXAS
Executive Department
“THE GOVERNOR OF THE STATE OF TEXAS, TO HIS EXCELLENCY THE GOVERNOR OF THE STATE OF ALABAMA
“WHEREAS, it appears by the annexed application for requisition and copies of INDICTMENT AND CAPIAS which I certify are authentic and duly authenticated in accordance with the laws of the State of Texas, that under the laws of this State PERCY ROBERSON stands charged with the crime of CAPITAL MURDER committed in this State, and it has been represented and is satisfactorily shown to me that the accused was present in this State at the time of the commission of said crime and thereafter fled from the justice of this State, and has taken refuge and is now to be found in the State of ALABAMA.
“NOW, THEREFORE, pursuant to the provisions of the Constitution and the laws of the United States and the laws of the State of Texas and the laws of the State of ALABAMA, in such cases made and provided,
“I DO HEREBY RESPECTFULLY DEMAND that said PERCY ROBERSON. fugitive from justice be arrested and secured and delivered to SHERIFF JACK HEARD. CAPT. W. F. ROBICHAUX. J. B. MOTT. DONALD BRISTER. AND R. M. GONZALES who are hereby authorized to receive an convey and transport him to this State, here to be dealt with according to law.
“IN WITNESS WHEREOF, I have hereunto signed my name and caused to be affixed the Great Seal of State, at Austin, Texas, this 27th day of June A. D.,19 80.
/s/ W. P. Clements, Jr.
Governor
By the Governor:
(THE STATE OF TEXAS
SEAL)
/s/ H. David Hernden_
Assistant Secretary of State”

In the case of In re Donald Roland Shirley v. State of Alabama, Ex parte State of Alabama, 363 So.2d 104, the Chief Justice, writing for a unanimous court, held:

“It is well settled that if the rendition warrant recites certain jurisdictional facts, to-wit: (1) that there was a demand in writing for the return of the person named in the warrant as a fugitive from justice by the executive authority of the state from which he fled, (2) that the requisition was accompanied by a copy of the indictment found, or an information or an affidavit before a magistrate, substantially charging the person demanded with a crime under the laws of the state from whose justice he fled, and (3) that the copy of the indictment, information or affidavit was authenticated by the executive authority making the demand, then a prima facie case is made out for detention and the burden shifts to the prisoner to rebut the State’s prima facie case, (citations omitted) It is not necessary for the establishment of a prima facie case that the requisition warrant and supporting papers be introduced into evidence when the rendition warrant makes the required showing.” (citations omitted)

In this case the rendition warrant contained sufficient jurisdictional facts to establish a prima facie case for lawful detention. The burden was on appellant to rebut the State’s prima facie case by showing that he was not the identical person named in the indictment or that he was not a fugitive from justice. State v. Shelton, 30 Ala.App. 484, 8 So.2d 216; Denson v. State, 36 Ala.App. 216, 57 So.2d 830; State v. Knight, 31 Ala.App. 174, 14 So.2d 159; Harris v. State, 257 Ala. 3, 60 So.2d 266.

Appellant made no attempt to offer any evidence going to show that he was not the identical person named in the indictment or that he was not a fugitive from justice, but sought to rely upon the supposed insufficiency of the State’s case to justify his lawful detention. He sought to go behind the Sheriff’s return to writ issued by the trial court which return exhibited the Governor’s rendition warrant which established the right of the State of Alabama, prima facie, to detain the prisoner. Such an attempt does not square with the legion of cases in this state on this subject. Shirley v. State, supra. See, also, Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521, wherein the Supreme Court of the United States held: “Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, Section 2 of the Constitution. . . . The clause never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial.”

Appellant’s counsel, during the ha-beas corpus hearing, attacked the sufficiency of the indictment returned by the Grand Jury in Harris County, Texas, claiming that it was void under the Texas statute and the Texas case law, and, thus, would not support an order of extradition. If such claim is true the proper forum to raise this issue is in the Texas court where appellant is to be tried. In Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515, the rule is stated to be that the technical sufficiency of the indictment and the question of the procedure under it are not open to inquiry on habeas corpus to review the issuance of a warrant of arrest in interstate extradition proceedings.

Though appellant failed to assume the burden cast upon him, after the state made out a prima facie case of lawful detention, by showing he was not the identical person named in the indictment or that he was not a fugitive from justice, the state adduced the testimony of a fingerprint expert who stated she took the fingerprints of appellant in the Birmingham jail and compared the prints with appellant’s fingerprints sent from Texas and found they were the same. The qualifications of the expert were proven though the trial judge stated he had ruled her to be an expert in over fifty cases tried in his court.

We have carefully examined the allied papers introduced into evidence and find they meet the tests laid down in numerous cases from the appellate courts of this state. The judgment of the court below denying the relief sought in the habeas corpus hearing is affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex Parte: Harold Joe Monroe. (Re: Harold Joe MONROE, Alias v. STATE of Alabama).
    80-529.
    Supreme Court of Alabama.
    July 2, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., CONCUR.


author: PER CURIAM. ALDERMAN, Justice,

text:
    Louis HOBERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 57887.
    Supreme Court of Florida.
    April 30, 1981.
    As Corrected On Denial of Rehearing July 31, 1981.
    Raymond J. Takiff of the Law Offices of Raymond J. Takiff, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

On March 7, 1979, appellant was convicted of bribery and unlawful compensation for official behavior pursuant to sections 838.015(1) and 838.016(1), Florida Statutes (1977). The convictions were grounded in part upon tape recordings of private incriminating conversations between appellant and a Dr. Airan in appellant’s home. The conversations were transmitted by a “body bug” planted on Dr. Airan to a police vehicle some four blocks away. In light of our recent decision in State v. Sarmiento, 397 So.2d 643 (Fla.1981), the tape recordings of conversations held in the home should have been suppressed, and we therefore reverse.

For guidance in the event of a re-trial, we note that appellant’s challenge to the composition of the grand jury was laid to rest in Reed v. State, 267 So.2d 70 (Fla. 1972), and Portee v. State, 253 So.2d 866 (Fla. 1971). Appellant’s vagueness challenge fails because sections 838.015(1) and 838.016(1) convey a sufficiently definite warning as to the proscribed conduct, see Faust v. State, 354 So.2d 866 (Fla. 1978); Zachary v. State, 269 So.2d 669 (Fla. 1972), and his assertion of overbreadth is unavailing because he has failed to show that the statutes could be applied to constitutionally protected conduct, see Sandstrom v. Leader, 370 So.2d 3 (Fla. 1979).

Accordingly, the judgment of the trial court is reversed, and this cause is remanded for proceedings not inconsistent with this opinion.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion, with which BOYD, J., concurs.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree that sections 838.015(1) and 838.-016(1) are not unconstitutionally vague or overbroad and that Hoberman’s challenge to the grand jury composition is without merit. I do not agree, however, that the trial court erred in overruling Hoberman’s objections to the introduction of tape recordings of conversations which Hoberman had with Dr. Airan, an undercover state agent, and the transcripts of these recordings. This ease is not controlled by our recent decision in State v. Sarmiento, 397 So.2d 643 (Fla.1981), because Sarmiento involved a motion to suppress the testimony of police officers as to what they had heard on an electronic monitor and did not involve tape recordings. As I pointed out in my dissent in Sarmiento, the defendant in that case expressly conceded that he had no reasonable expectation of privacy concerning the possibility that the undercover detective in his home would record the conversation by means of a recorder on his person or a recorder outside the premises.

In Sarmiento, this Court held only that the police officers could not testify as to the contents of conversations they overheard by monitoring the conversations which took place in defendant’s home, and we approved the decision of the Third District. The Third District, in Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979), reaffirmed its earlier decision of Hajdu v. State, 189 So.2d 230 (Fla. 3d DCA 1966), cert. denied, 196 So.2d 923 (Fla.1967). In Hajdu, the Third District held that the person outside the defendant’s home who monitored a conversation which took place inside the home could not testify as to the contents of the conversation. However, it distinguished the case before it where the testimony of the third person who monitored the conversation outside the home was inadmissible from a situation where a properly authenticated tape recording of a conversation and the transcription thereof has been made. It stated that had the conversation been recorded by the third person, the tape recording would have been admissible.

In Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980), the Third District addressed the issue of the admissibility of recordings of the communications where there has been compliance with section 934.03(2)(c) and held:

A wrongdoer who voluntarily speaks to another of his wrongdoings, only has the hope or expectation, not a constitutionally protected right, that the other person will not breach his confidence and testify as to the contents of their conversations. It logically follows then that recordings of such communications should be and are admissible after the individual in whom the accused has confided has testified (both as to his consent and the contents of his discussion) in that in the search for the truth it is by far the most reliable evidence possible.

376 So.2d at 1170. See also Crespo v. State, 350 So.2d 507 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978).

The District Court of Appeal, First District, in State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980), accurately distinguished the facts of Sarmiento from the case before it where an undercover agent consented to wear a concealed microphone and transmitter, by means of which each of the drug transactions in defendant’s home was tape recorded by officers outside the home. The First District said:

Sarmiento involved the admissibility of testimony of officers who engaged in “warrantless electronic eavesdropping” (id. at 1049), accomplished by means of a hidden electronic “body bug” worn by an undercover officer which transmitted his conversations with the defendant, inside defendant’s house trailer, to where they were electronically monitored by other officers stationed nearby outside the house trailer. In contrast, this case involves admissibility of tape recordings of the conversation conducted inside appel-lee’s home, rather than admissibility of testimony of officers concerning unrecorded conversations overheard by means of electronic eavesdropping. (Footnote omitted.)

385 So.2d at 1047. Finding it unnecessary to pass upon the question in Sarmiento as to whether the testimony of the recording officers standing alone, as opposed to the tape recording itself, would be admissible, the First District Court held that the protection of the constitution against unreasonable interception of private communications should not be extended to communications evidencing criminal transactions, disclosed and recorded by prior consent of one of the participating communicants. To support its holding, the district court quoted at length from United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

In White, the Supreme Court of the United States said:

In these circumstances, “no interest legitimately protected by the Fourth Amendment is involved,” for that amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, [385 U.S. 293] at 302 [, 87 S.Ct. 408 at 413, 17 L.Ed.2d 374.] No warrant to “search and seize” is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206 [, 87 S.Ct. 424, 17 L.Ed.2d 312] (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427 [, 83 S.Ct. 1381, 10 L.Ed.2d 462] (1963).
Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-303 [87 S.Ct. at 412-414.] For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, [343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270] supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. Our problem, in terms of the principles announced in Katz [v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576], is what expectations of privacy are constitutionally “justifiable”— what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. See Lopez v. United States, 373 U.S. 427 [, 83 S.Ct. 1381, 10 L.Ed.2d 462] (1963).
Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a “reasonable” investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an “unreasonable” and unconstitutional search and seizure.

401 U.S. at 749-753, 91 S.Ct. at 1124-1126. See also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

In the present case, Hoberman, who had no reasonable expectation that Dr. Airan would not go to the authorities and report what had transpired in their conversations, likewise had no reasonable expectation that Dr. Airan would not record this conversation. The recording was lawful under section 934.03(2)(c), Florida Statutes (1977), which provides:

It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

Dr. Airan, a civil engineer, was under contract with the City of Sunrise on several projects. Hoberman, on several occasions, had approached Dr. Airan on the subject of a payoff to Hoberman to insure the continuation of Dr. Airan’s contract with the city. Dr. Airan went to the state attorney to advise him of Hoberman’s overtures for money. The state attorney requested that Dr. Airan act as an undercover agent and that he go through with the transfer of money. He was asked to wear an electronic device and to go to Hoberman’s home to set up the exchange of money, which he did. His conversation with Hoberman was tape recorded by the police and transcribed. A later telephone conversation was also recorded with Dr. Airan’s consent as was the subsequent meeting at Hoberman’s home where the exchange of money took place.

Dr. Airan testified as to his consent to the recordings and as to the authenticity of the tape recordings and the transcripts. The recordings and transcripts were offered into evidence by the State to corroborate Dr. Airan’s testimony as to the criminal conduct on Hoberman’s part which had transpired in Hoberman’s home. Hober-man objected at trial to the introduction of the tape recordings and transcripts on the basis that they were improper evidence since they were merely corroborative of un-contradicted consistent statements. The court overruled this objection. Hoberman later objected to the introduction of the recordings on the basis that a search warrant should have been obtained because there was reasonable time to have obtained one. This objection was also denied, and the recordings and the transcripts were properly admitted into evidence. , Hober-man’s rights under article I, section 12, Florida Constitution, and the fourth amendment to the United States Constitution were not violated because he had no reasonable expectation of privacy that his conversations with Dr. Airan were not being recorded. Furthermore, the recordings were lawful in accordance with section 934.-03(2)(c).

I believe the majority, in this case, has gone beyond the letter of the Florida and the federal constitutions and has judicially created an unreasonable barrier to relevant, probative, accurate, and reliable evidence. United States v. White. Accordingly, I would affirm the trial court’s judgment.

BOYD, J., concurs.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Appellant, v. Esteban YU, Appellee. STATE of Florida, Appellant, v. Alejandro TORO, Appellee. STATE of Florida, Appellant, v. Gilbert MEJIA, Appellee. STATE of Florida, Appellant, v. Ubaldo MARULANDA, Appellee. STATE of Florida, Appellant, v. Dennis POLING, Appellee. STATE of Florida, Appellant, v. Dane Michael GRAZIANO, Aldolfo Ferreira, and Gail Rehman, Appellees. STATE of Florida, Appellant, v. Dania GOMEZ, Placido Bentancourt, Gustavo Calliero, and Raul Gonzalez, Appellees. STATE of Florida, Appellant, v. Jim WALL, III, William Gregory Wall, and Danny Russell, Appellees. STATE of Florida, Appellant, v. Howard LEVINSON, Dennis Romanov, and Mark Adrian Miller, Appellees. STATE of Florida, Appellant, v. Michael Lee HARRIS, Appellee.
    Nos. 57961, 58105, 58106, 58108, 58137, 58267, 58364, 58674, 58828 and 58971.
    Supreme Court of Florida.
    May 8, 1981.
    Rehearing Denied July 23, 1981 (58,674).

      Jim Smith, Atty. Gen., and Calvin L. Fox and Stewart J. Bellus, James S. Purdy, Asst. Attys. Gen., Miami, for appellant.
    Denis Dean of Dean & Hartman, Miami, for appellee Yu.
    Manuel Vazquez, Coral Gables, for appel-lee Toro.
    William R. Tunkey of Weiner, Robbins, Tunkey & Ross, Miami, for appellees Mejia, Marulanda, and Gomez.
    I. Richard Jacobs, Miami, for appellee Poling.
    Melvin S. Black, Miami, and Steven Wi-sotsky, Fort Lauderdale, for appellee Grazi-ano.
    Edward J. O’Donnell of Spain & O’Donnell, North Miami, for appellee Ferreira.
    Richard A. Beiley and Benedict P. Kuehne of Bierman, Sonnett, Beiley & Sho-hat, Miami, for appellee Rehman.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellee Wall.
    Michael D. Gelety, Fort Lauderdale, for appellee Levinson.
    P. D. Aiken of Aiken & Damore, Fort Lauderdale, for appellee Romanov.
    Arnold T. Blostein, Fort Lauderdale, for appellee Miller.
    Ronald K. Cacciatore, Tampa, for appel-lee Harris.
   ALDERMAN, Justice.

These cases are before us on direct appeal to review orders of the trial courts granting the defendants’ motions to dismiss and holding section 893.135, Florida Statutes (1979), unconstitutional. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

We resolved all of the constitutional issues presented by these appeals, with the exception of one, in State v. Benitez, 395 So.2d 514 (Fla.1981), wherein we upheld the validity of section 893.135. We, however, did not address the issue of whether section 893.135(l)(b), prohibiting the sale or possession of “28 grams or more of cocaine or any mixture containing cocaine, as described in s. 893.03(2)(a),” violates the due process and equal protection provisions of the Florida and the federal constitutions.

In the appealed orders, the trial courts held that penalizing possession of a certain amount of “any mixture containing cocaine” without regard to the percentage of cocaine in the mixture is arbitrary, unreasonable, and a violation of due process and equal protection of the law. We disagree and uphold section 893.135 against these challenges.

We find convincing the rationale of the Supreme Court of Illinois in People v. Mayberry, 63 Ill.2d 1, 345 N.E.2d 97, cert. denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976). Therein, defendants challenged the Illinois cannabis control act and the controlled substances act which classified offenders by providing that an offense becomes more severe as the weight of the substance involved increases. The classifications of this act were not based upon the amount of pure cannabis or controlled substance involved but rather were based upon the amount of the substance containing the cannabis or controlled substance. Upholding this act, the Illinois Supreme Court, relying upon United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974), said:

The court noted in Daneff that dangerous drugs are generally marketed in a diluted or impure state. It was therefore held that it was not unreasonable or irrational for a legislature to deal with the mixture or compound rather than the pure drug. The court went on to state that “[t]he State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat all law violators with the precision of a computer.” (501 F.2d 1180, 1184). We find the reasoning of the court in Daneff persuasive. Our legislature may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance. While the soundness of that belief may be questionable, the determination is one for the legislature to make, and we cannot find that the classification schemes at issue have no reasonable basis. Also, the defendants have not demonstrated that a classification scheme based upon the amount of the pure drug contained in a given substance would be feasible. We therefore conclude that the classification schemes are not unconstitutional merely because they are based on the amount of the “substance containing” the cannabis or controlled substance rather than upon the pure cannabis or controlled substance.

345 N.E.2d at 101.

In Daneff, defendant challenged a New York drug law on the basis that there was no rational basis for the statutory scheme which assessed punishment on possession of a quantity of “mixture” without regard to the actual quantity of the dangerous drug present in the mixture. Defendant argued that this sentencing scheme violated equal protection and due process of the law because it created unequal and irrational treatment of offenders guilty of what he contended were identical offenses. Under the New York law, possession of a given amount of pure cocaine and the possession of the same amount of cocaine mixed with various amounts of diluent were viewed as different offenses, the latter carrying greater sanctions. The United States Court of Appeals, Second Circuit, held that there was a rational basis for the classifications drawn by the New York legislature, and therefore the statute in question did not violate either due process or equal protection of the laws. It held that defendant’s argument in support of his claim that the statute was irrational proved too much and too little and explained:

Too much, in the sense that, by accepting appellant’s own premise that narcotics such as heroin and cocaine are generally marketed in mixtures or compounds, it does not seem unreasonable or irrational for a legislature to deal realistically with the marketing of the mixture or compound rather than the handling of the pure narcotic. Too little, in the sense that while it may not be wise to let the possessor of the pure or a purer product escape with a lighter penalty than that going to the possessor of the drug in its ordinary marketable form, it is not necessary for a legislature to attempt to eradicate all evil, but only part of it; as the Court said in Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937), “The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for [the state’s] determination.”

501 F.2d at 1184. Recognizing that heroin and cocaine at least are generally marketed in a diluted or impure state, the court stated that the legislature’s rationale for striking at the mixture or compound was evident.

We agree and find this rationale applicable to section 893.135(l)(b). The legislature has broad discretion in determining necessary measures for the protection of the public health, safety, and welfare, and we may not substitute our judgment for that of the legislature as to the wisdom or policy of a legislative act. Hamilton v. State, 366 So.2d 8 (Fla.1978). Section 893.-135(lXb) bears a reasonable relationship to the legitimate state objective of protection of the public health, safety, and welfare. The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public. This was within its prerogative to decide, and it has not been shown that such decision was irrational or unreasonable.

Accordingly, the orders of the trial courts are reversed on the authority of State v. Benitez and on the basis of our present holding that section 893.135(lXb) is not arbitrary and unreasonable and does not violate due process and equal protection of the laws.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Gonzalo ARANGO, Appellee.
    No. 58107.
    Supreme Court of Florida.
    June 25, 1981.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami and Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., Miami, for appellant.
    Joel Hirschhorn and Harry M. Solomon of the Law Offices of Joel Hirschhorn, Miami, for appellee.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of the Eleventh Judicial Circuit granting appellee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional. Since we have upheld the constitutionality of that statute in State v. Yu, 400 So.2d 762 (Fla., 1981), and State v. Benitez, 395 So.2d 514 (Fla., 1981), we reverse the order and remand this case for further proceedings consistent with those decisions.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Alfred SAMANGO, Appellee.
    No. 58268.
    Supreme Court of Florida.
    June 25, 1981.
    Jim Smith, Atty. Gen., Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State’s Atty., and Arthur Joel Berger, Asst. State’s Atty., Miami, for appellant.
    A. Thomas Mihok and Harold L. Downing, of Dempsey & Slaughter, Orlando, for appellee.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of the Eleventh Judicial Circuit granting appellee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional. Since we have upheld the constitutionality of that statute in State v. Yu, 400 So.2d 762 (Fla., 1981) and State v. Benitez, 395 So.2d 514 (Fla., 1981), we reverse the order and remand this case for further proceedings consistent with those decisions.

It is so ordered.

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


author: McCORD, Judge. McCORD, Judge.

text:
    Wilfred Bernard HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. WW-55.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    On Rehearing July 9, 1981.
    Michael J. Minerva, Public Defender, Melanie Hines Alford, Asst. Public Defender and David S. Markus, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of armed robbery and appeals. He contends that the trial court erred in admitting evidence of another crime and erred in denying his request that the jury be charged on penalties. We affirm.

The State presented the testimony of two tellers of the Duval Federal Savings and Loan of Neptune Beach (Duval Federal) that on December 5, 1979, appellant approached one of the tellers’ window, pulled a small silver handgun from his right coat pocket, took a paper bag from his left coat pocket, and ordered them to give him money. Both tellers had received FBI training in observation techniques, and while complying with the demands, they concentrated their efforts on observing and memorizing the robber’s facial characteristics. They observed him from a distance of two to six feet. Also during the robbery, which lasted •for approximately three minutes, two surveillance cameras located behind the teller area took pictures of the robbery. The video tapes were offered in evidence by the State and admitted.

Over the objection of appellant, the court allowed Geraldine Johnson, the branch manager of another bank, to testify that on December 17, 1979, the bank in which she worked was robbed in a similar manner by a gunman she identified as appellant. The court ruled that her testimony was admissible because it was relevant and material to the issue of identity and instructed the jury that the sole purpose of her testimony was to show identification. The testimony in relation to the two separate robberies was that (1) in each case, the gunman wore the same clothing; (2) the physical characteristics of the gunman in both instances were the same; (3) in each robbery, the assailant removed a silver gun from his right pocket and a bag from his left; (4) the assailant in each case wore a “beanie hat”; (5) in each case the assailant initiated the robbery by asking for a roll of coins and (6) appellant was the perpetrator of both crimes.

Appellant’s defense at trial was alibi and he contested the issue of identity throughout the trial. On appeal, however, he now argues that the identity of the robber was not an issue in the case; that he was identified in the Duval Federal robbery by the two eyewitnesses and the pictures; that identity then was no longer an issue in the case and it, therefore, was error to admit evidence of the other robbery. He overlooks the fact that his defense was, and continued to be, alibi, which necessarily made identity an issue throughout the whole trial. The similar fact evidence was admissible to bolster the other identification evidence which was presented. Williams v. State, 117 So.2d 473 (Fla.1960).

As to appellant’s contention that it was reversible error for the trial court to deny his request to instruct on penalties pursuant to Florida Rule of Criminal Procedure 3.390(a), the Supreme Court in Tascano v. State, 393 So.2d 540 (Fla.1980), ruled that pursuant to the aforesaid Rule 3.390(a), it is mandatory that instruction be given on the maximum and minimum sentences which may be imposed upon defendant upon request being made therefor. Here, however, appellant did not preserve the point for review by objecting to the court’s denial of the requested instruction. See Florida Rule of Criminal Procedure 3.390(d); Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980); and Bailey v. State, 393 So.2d 24 (Fla.3d DCA 1981).

AFFIRMED.

LARRY G. SMITH, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.

ON MOTION FOR REHEARING

McCORD, Judge.

Upon consideration of appellant’s motion for rehearing and further review of the record in this cause, we find that the colloquy between the trial court and appellant at the time appellant requested the court to instruct the jury on penalties pursuant to Florida Rule of Criminal Procedure 3.390(a) does indicate an objection on the record to the failure of the trial court to give such instruction. We, therefore, vacate our previous affirmance. Appellee contended in its brief on the merits that we should not reverse the trial court on the basis of Tascano v. State, 393 So.2d 540 (Fla.1980), but should find that any error in the trial court’s refusal to give appellant’s requested charge on penalties was harmless error because of the overwhelming evidence of guilt in the case.

From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent thereto, the trial court’s error in this respect cannot be deemed harmless. The Supreme Court held this instruction to be mandatory. We, therefore, must reverse and remand for a new trial. However, we certify to the Supreme Court of Florida that the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?

The motion for rehearing is granted.

Reversed and remanded for a new trial with the above-posed question being certified to the Supreme. Court.

LILES, WOODIE A., Associate Judge (Retired), concurs, LARRY G. SMITH, J., dissents.


text:
    Tony ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 79-1546.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Joseph S. Karp of Bernstein, Sharff, Monchick & Karp, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

On January 7, 1981, we filed an opinion reversing appellant’s conviction of possession of more than 100 pounds of marijuana. The State filed a motion for rehearing. While considering that motion, we determined that appellant failed to object at trial to the introduction into evidence of materials he had sought to have suppressed before trial.

Because of appellant’s failure to object, and because the remaining points on appeal have no merit, we grant the motion for rehearing, vacate the opinion filed January 7, 1981, and affirm the judgment and sentence. Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978); Weisz v. State, 392 So.2d 22 (Fla. 4th DCA 1980); German v. State, 379 So.2d 1013 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1113 (Fla.1980); Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1115 (Fla.1980).

DOWNEY and GLICKSTEIN, JJ., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.


text:
    Bruce D. MOYERS, Appellant, v. STATE of Florida, Appellee.
    No. UU-482.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Rehearing Denied July 9, 1981.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgment of conviction entered on jury verdict must be vacated and the case remanded for new trial because the trial court erroneously refused to instruct the jury on maximum and minimum penalties as required by the Supreme Court in Tascano v. State, 393 So.2d 540 (Fla.1980). Defense counsel adequately preserved the point on appeal by requesting the charge and excepting or objecting to the court’s refusal to give it.

Appellant’s second point is that the trial court erred in excluding proffered testimony that was said to support a duress defense. No reason appears why duress may not be a defense to a charge of introducing contraband into a correctional institution. Section 944.47, Florida Statutes (1979). But appellant’s proffer was not sufficiently detailed to permit judgment of whether the excluded testimony tended to show duress in fact, so justifying submitting the issue to the jury. Though the question may be more substantially raised on a new trial, we find no error in the record submitted. See Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967); Hall v. State, 136 Fla. 644, 187 So. 392 (1939); Stevens v. State, 397 So.2d 324 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

ROBERT P. SMITH, JR., LARRY G. SMITH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The State has filed a motion for rehearing contending that we failed to consider the harmless error doctrine in reversing the trial court for failure to instruct on maximum and minimum penalties as required by Tascano v. State, 393 So.2d 540 (Fla.1980).

From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent in that case, the trial court’s error in this respect cannot be considered harmless. However, as requested by appel-lee, we certify to the Supreme Court of Florida the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?

The motion for rehearing is denied.

ROBERT P. SMITH, Jr., C. J., and LARY G. SMITH, and JOANOS, JJ., concur.

       See generally W. LaFave & A. Scott, Criminal Law, Duress § 49, at 374-81 (1972); R. Perkins, Perkins on Criminal Law, Compulsion (Duress) 951-55 (2d ed. 1969); Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980), pet. for rev. den., 388 So.2d 1110 (Fla.1980).


author: FERGUSON, Judge.

text:
    Luis YAMBO, Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellee.
    No. 80-1042.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 31, 1981.

      Arthur Newman, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and William R. Wicks, III, Miami, for appel-lee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Parkway General Hospital brought this action against Luis Yambo to recover payment for medical services rendered. Yam-bo filed an answer and third party complaint against his employer, Southern Wine and Spirits, Inc., and its group health insurance carrier General American Life Insurance Co. Parkway filed a motion for summary judgment against Yambo. Thereafter Yambo filed a motion for summary judgment which was granted against General American.on a determination by the court that General American was liable to Yambo for his debt to Parkway. General American’s resistance to the summary judgment on the grounds that there were material issues of law and fact was unsuccessful. An appeal ensued.

Yambo, as appellee, filed in this court a “confession of error” asserting that the judgment against General American was prematurely entered in that no judgment had yet been entered fixing Yambo’s obligation to Parkway. Thereupon this court, by clerk’s order, reversed the final summary judgment against General American.

On remand the trial court heard and granted Parkway’s motion for summary judgment. The court then granted summary judgment for General American from which this appeal is taken.

We have carefully reviewed the pleadings, affidavits, depositions, and worker’s compensation orders filed herein. As contended by both parties, though at different stages of the proceedings, there are genuine issues of law and material fact which preclude entry of summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966); State Farm Mutual Insurance Co. v. Zisook, 393 So.2d 1191 (Fla. 3d DCA 1981); Perez, II v. City of Miami, 358 So.2d 1132 (Fla. 3d DCA 1978); Villa v. Nationwide Mutual Insurance Co., 354 So.2d 122 (Fla.3d DCA 1978); Reflex, N. V. v. The UMET Trust, 336 So.2d 473 (Fla. 3d DCA 1976).

Reversed and remanded for further consistent proceedings.


author: DANIEL S. PEARSON, Judge.

text:
    Lawrence HEIMER and Barbara Heimer, Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 80-1288.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 31, 1981.

      Joel V. Lumer, Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, Miami, and Forbes M. Bouche, for appellants.
    Thompson & Clark and Jack E. Thompson, Miami, for appellee.
    Before DANIEL S. PEARSON, and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Lawrence and Barbara Heimer appeal solely from a. judgment entered in favor of Travelers Insurance Company, the insurer of Motorama Exports Corporation. This judgment was entered after the trial court vacated its earlier judgment in favor of the Heimers entered on a jury verdict awarding them damages resulting from a collision with a vehicle negligently driven by John Ferraro. The judgment for Travelers flowed from a post-trial order directing a verdict for Motorama because the Heimers had failed to prove that Motorama owned the vehicle, that the vehicle was operated by Ferraro with Motorama’s knowledge and consent, and that the vehicle was operated by Ferraro in the course and scope of his employment by Motorama.

This case is another, perhaps the momentary epitome, in the seeming resurgence of the “sporting theory of justice,” a phenomenon which has met with our consistent disapproval. See Holyoke Mutual Insurance Company in Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA 1981); State v. Anders, 388 So.2d 380 (Fla. 3d DCA 1980); State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980); Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979). See also Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980); In re Estate of Osborn, 383 So.2d 1107 (Fla. 4th DCA 1980). In the words of this court, speaking through Judge Schwartz:

“In earlier times, the rule we apply in this case was said to reflect the feeling that a party may not ‘mend his hold,’ ... or ‘blow hot and cold at the same time’ or ‘have his cake and eat it too.’ . . . Today, we might say that the courts will not allow the practice of the ‘Catch-22’' or ‘gotcha!’ school of litigation to succeed.” Salcedo v. Asociacion Cubana, Inc., supra, at 1339.

The Heimers’ complaint against Ferraro, Motorama and Travelers alleged that Moto-rama, insured by Travelers, owned the offending vehicle and that at all material times Ferraro was driving it with Motora-ma’s consent and knowledge and in the course and scope of his employment by Mo-torama. The joint answer filed by the defendants admitted these allegations. The Heimers, with these admissions in hand, could not have foreseen what was in store for them when, as a next step in the proceedings, they served interrogatories on the defendants.

Months went by. The defendants failed to respond to the interrogatories. The court ordered the defendants to answer the interrogatories within thirty days under pain of having their pleadings stricken. Still no effort to respond to the interrogatories was made. The court struck the defendants’ pleadings, including, of course, the answer to the complaint.

The case proceeded to trial. At the commencement of trial, the court informed counsel for the Heimers that they would have to prove Motorama’s liability for Ferraro’s actions. The court reasoned that because the defendants’ pleadings were struck, the admissions contained in their answer were struck. Thus was the baby thrown out with the bathwater. Rescue efforts failed — the Heimers fell woefully short of proving that Motorama owned the vehicle or that Ferraro had any connection with Motorama.

We unhesitatingly reverse the judgment appealed and remand this case to the trial court with directions to reinstate the judgment entered in favor of the Heimers against Travelers.

First, we will not tolerate a result which rewards parties for their recalcitrance by annulling admissions made in their pleadings and which burdens an innocent party seeking discovery and sanctions with proving a previously undisputed fact. It is painfully obvious that a party who is, purportedly, to be punished for willful misconduct should not reap benefits from that' misconduct. When the sanction of striking pleadings is employed, the sanction cannot operate to invalidate those pleadings, or parts of pleadings, that are of advantage to the party seeking the sanctions. We find no case on point. We are, however, encouraged by the absolute dearth of authority, which, in itself, is the most telling demonstration of the impropriety of the trial court’s ruling.

The alternative basis for our reversal is that even if the trial court had properly struck the entirety of the defendants’ answer, including their admissions, the effect of that action was, in any event, to cause all of the allegations in the Heimers’ complaint to be undenied and thus admitted. See Fla.R.Civ.P. 1.110(e); see also Trustee of Chase Manhattan Mortgage and Realty Trust v. Sailboat Apartment Corp., 323 So.2d 654 (Fla. 3d DCA 1976).

Florida Rule of Civil Procedure 1.380 is patterned on Federal Rule of Civil Procedure 37, and thus, both the history and the interpretation of the Federal Rule are persuasive in aiding us in interpreting the Florida counterpart. Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160 (Fla. 3d DCA 1981); Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980). The Notes of the Advisory Committee on Rules accompanying Federal Rule of Civil Procedure 37 indicate that the rule was adopted in accord with Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909). In Hammond, the United States Supreme Court held that an Arkansas statute permitting the striking of pleadings for the failure to respond to discovery did not deny due process, since there exists an “undoubted right of the lawmaking power to create a presumption of fact as to the bad faith untruth of the answer to be gotten from the suppression or failure to produce the proof ordered.” It is this very presumption of fact that underlies Federal Rule of Civil Procedure 37 and Florida Rule of Civil Procedure 1.380, and which requires that a stricken answer become the equivalent of no answer and be deemed an admission of the allegations in the complaint. See also Norman v. Young, 422 F.2d 470 (10th Cir. 1970); Black v. United States, 389 F.Supp. 529 (D.D.C.1975); Valley Bank of Nevada v. Skeen, 366 F.Supp. 95 (N.D.Tex.1973).

Travelers attempts to justify the judgment below by arguing that if the Heimers were to be relieved of the necessity of proof, it was incumbent upon them to obtain a default judgment against the defendants. This argument ignores that Rule 1.380(b) contains alternative sanctions, including striking in whole or in part a pleading, rendering a default judgment, and entering an order that certain facts be taken as established. These sanctions, or others, might have been employed by the trial court separately or in combination. While the entry of a default judgment is frequently employed in combination with the striking of pleadings, see cases in n. 2, supra, and, in the present case, procuring its entry might well have averted the bizarre events which transpired, the absence of a default judgment does not mean that the Heimers were required to prove that which is deemed admitted in law.

Reversed and remanded with directions to reinstate the judgment for the Heimers against Travelers.

      . It is believed that the phrase was first coined by Roscoe Pound. See R. Pound, the Cause of Popular Dissatisfaction With The Administration of Justice, 29 A.B.A.Rev. 395, 404 (1906). It has since been used to describe litigation which is “a contest between two gladiators with surprise and technicalities as their chief weapons,” that is, the antithesis of an orderly search for truth. A. Vanderbilt, Cases and Materials on Modern Procedure, at 10 (1952). The blood relative of the “sporting theory of justice” is “trial by ambush.”

      . No issue is, or was, taken with the propriety of this action, which, indeed, is fully recognized as a sanction within the court’s arsenal of power when a defendant fails to make discovery. See, e. g., Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979); Synthetic Environmental Development Corp. v. Sussman, 275 So.2d 291 (Fla. 3d DCA 1973); Riley v. Gustinger, 235 So.2d 364 (Fla. 3d DCA 1970). In keeping with the condition precedent to the imposition of this sanction, see Remington Construction Co. v. Hamilton Electric, 181 So.2d 183 (Fla. 3d DCA 1966), the trial court first directed the defendants to respond to the interrogatories.

      . The defendants became active participants in the action of the court. Immediately before the trial commenced, in a colloquy with the court and the Heimers’ counsel, counsel for Motora-ma stated on behalf of the defendants:
      “[Motorama’s counsel]: The pleadings were struck by the defendants [sic]. What effect would that have? I assumed that was a determination on liability.

      “The Court: Well, I would assume that there is no issue as to liability. Wouldn’t you agree?
      “[Motorama’s counsel]: Yes.”
      Despite this concession, the defendants moved for directed verdicts in their favor after the trial court required the plaintiffs to prove liability.

      . The best that the plaintiffs could muster at this point was Mr. Heimer’s testimony that immediately after the collision Ferraro had told him that he worked for “some export motor company” which owned the vehicle.

      . Florida Rule of Civil Procedure 1.380(b)(2)(C) specifically provides for “[a]n order striking out pleadings or parts of them ... . ” (emphasis supplied).

      . This rule provides: “Averments in a pleading to which responsive pleading is required, other than to those as to the amount of damages, are admitted when not denied in a responsive pleading.”

      . While in Sailboat Apartment Corp. we reversed the trial court’s order on the ground that the record, unlike the record here, did not support a finding of willful non-compliance, we note that the language employed by the trial court in that case, “Each and every pleading ... [of the defendant] ... is hereby stricken from the record of this cause, and this file shall be deemed to be the same as if the said [defendant had] failed to file or serve any paper in this action” accurately describes the effect of striking.

      .Travelers also suggests that admissions in an answer are meaningless. We are not here concerned with the rule allowing inconsistent and alternative defenses. The admissions contained in the defendants’ answer here are “accepted as facts without the necessity of supporting evidence.” Vann v. Hobbs, 197 So.2d 43 (Fla. 2d DCA 1967); Sponholtz v. Sponholtz, 180 So.2d 497 (Fla. 3d DCA 1965); Freeman v. Holland, 122 So.2d 791 (Fla. 1st DCA 1960).


text:
    DAYTONA BEACH COMMUNITY COLLEGE and Auto-Owners Insurance Company, Appellants, v. Mary MINSON and Volusia County Council on Aging and CNA Insurance Group, Appellees.
    No. WW-285.
    District Court of Appeal of Florida, First District.
    June 5, 1981.
    Rehearing Denied July 31, 1981.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.
    William H. Seitz of LaRue & Bernardini, P.A., Daytona Beach, for Mary Minson and Wendell J. Kiser and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for Volusia County Council on Aging and CNA Ins. Group, appellees.
   PER CURIAM.

This is a workers’ compensation appeal which raises the issues of whether the deputy correctly determined that Minson was the employee of Daytona Beach Community College (Daytona) and not the special or loaned employee of Volusia County Council on Aging (Volusia), whether the deputy properly computed the average weekly wage, and whether the deputy correctly found that Minson was TTD from 3/18/80 through 4/22/80. We affirm the deputy’s finding that Daytona was the employer of Minson but reverse the calculation of average weekly wage and the finding of temporary total disability for the dates indicated. Our affirmance on point one renders the cross appeal moot.

Minson was a participant in the federally funded Comprehensive Employment Training Program commonly referred to as CETA. This program was administered by Daytona and Minson was attending courses there to obtain her GED. She attended classes for approximately four hours each morning and was assigned by Daytona to Volusia for “work experience” which is “designed to enhance employability of individuals through the development of good work habits and basic work skills.” 20 CFR Section 676.26—4(aXl) (1980). Minson received a stipend of $2.90 per hour for attending class and for the time she spent at Volusia. The checks were issued by Daytona from a fund for developmental education which includes classroom training and work experience.

As part of its program Volusia provided transportation for senior citizens, and Min-son frequently accompanied the driver on his routes. On June 13, 1979, while on one of these trips Minson injured her neck in an automobile accident. Dr. Neviaser, Min-son’s treating physician, testified on deposition that Minson had not reached MMI and was still TTD as of 4/22/80. However, this opinion was based on his belief that Minson was working in a laundry where she would have to pull heavy items from the washers and dryers. He was not aware of her activities at Daytona or at Volusia.

Claimant testified that when she accompanied Volusia’s driver she helped elderly persons in ways such as dressing and climbing in the van. Ms. Milstead, the supervisor at Volusia, testified Minson did not have any specific duties to perform, that she was primarily being exposed to a work environment, and if Minson helped the senior citizens by opening doors or in other ways this was done out of politeness, not as an assignment.

Dr. Neviaser’s testimony is not competent substantial evidence that Minson was TTD from March through April 22, 1980. At best, it was based on a misapprehension of her work situation and does not, therefore, comport with logic and reason. Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1957).

The deputy erred in considering all of Minson’s hours in calculating the average weekly wage. Under § 440.14(l)(f), Florida Statutes (1978), if a worker choses to work part-time on a regular basis this fact is properly taken into consideration in calculating the average weekly wage. The intention of the parties regarding hours to be worked determines the calculation. Perkins v. Heller Brothers Packing Corp., IRC Order 2-3542 (1978). Here, the parties clearly intended that Minson would be engaged in classroom training for part of her day and in work for part of her day. We find no rationale or authority for considering claimant’s hourly stipend for class attendance to be wages, and conclude therefore that only those hours which the parties intended to be work experience should be included in calculating the average weekly wage. Cf. Sears Roebuck & Co. v. Beasley, IRC Order 2-3687 (1979).

We find no error in the deputy’s conclusion that Daytona was the employer. Daytona was the recipient of the CETA funds and administrator of the program, and, as such, had primary control over Min-son’s activities. Although Volusia may have exercised some control over Minson, the testimony indicates this control was minimal. Daytona initially assigned Min-son to Volusia and determined whether she would continue to go there.

We conclude also that Daytona was the primary benefactor of having Minson assigned to Volusia. In order to continue CETA funding Daytona was required to obtain placement in social agencies for certain of its classroom/work experience trainees. This indicates a practice by which such an educational institution may have students acquire learning or training in an industrial setting, exposed to the hazards of a particular industry. An educational institution would appear to be assuming employer functions when it initiates the program, makes the necessary arrangements with an industry, maintains control of overall assignments and compensation, and benefits by the receipt of funds either from tuition paid by the students or from CETA or other governmental grants. In this context, the requirements of Title 29 U.S.C.A. § 823 (1980 Supp.), that the prime sponsor of the CETA program provide workers’ compensation or equivalent protection to participants should be interpreted to mean that the student/worker must be given protection equivalent to that received by the workers in the particular industry. By accepting students for participation in such activities and by assigning them to those activities as part of their educational experience, Daytona has stepped into the shoes of an employer, and, absent some permissible contract limitation, must assume the responsibility concomitant to that role.

Accordingly, the deputy’s order is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

MILLS, C. J., WENTWORTH, J., and VIRGINIA Q. BEVERLY, Associate Judge, concur.


author: SHIVERS, Judge.

text:
    DEPARTMENT OF LAW ENFORCEMENT, Appellant, v. Maggie ALLEN and The Career Service Commission, Appellees.
    No. WW-439.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    Rehearing Denied July 31, 1981.
    Jim Smith, Atty. Gen., and Pamela L. Lutton, Asst. Atty. Gen., for appellant.
    Ben R. Patterson, of Patterson & Trayn-ham, Tallahassee, for appellees.
   SHIVERS, Judge.

Department of Law Enforcement appeals an order of the Career Service Commission reversing the Department’s discharge of an employee and ordering her reinstatement with back pay. We affirm the order.

On September 18, 1979, appellee, an employee of the Department of Law Enforcement, received a conditional job performance evaluation. On November 9, 1979, ap-pellee received an unsatisfactory job performance evaluation for the time period between September 18 and October 19, 1979. She received written notice that the Department intended to discharge her for specific violations of the Department’s Rules of Conduct on December 11,1979, and requested and received a pretermination conference where she was represented by counsel on January 8,1980. She was subsequently discharged from employment on January 23, 1980.

Appellee timely appealed her discharge to the Career Service Commission and a hearing was held on April 8, 1980. At the hearing, appellee moved to dismiss the action and sought reinstatement, alleging, among other things, that the Department violated Rule 200.12 of its own Rules of Conduct by failing to reevaluate her job performance within thirty days following her receipt of the unsatisfactory performance evaluation. The Commission granted the motion to dismiss and ordered appellee’s reinstatement with back pay because of the impermissible delay by the Department between appellee’s receipt of the unsatisfactory performance evaluation on November 9 for the period prior to October 19, 1979, and her receipt of the written notification of the Department’s intent to dismiss her.

We conclude there is competent, substantial evidence to support the Commission’s determination that the Department did not comply with its own rules of procedure for implementing disciplinary action against appellee. Pursuant to Rule 22A-9.03(6), Florida Administrative Code (1979), if an employee receives a conditional or unsatisfactory evaluation and is retained by the agency, the employee’s performance must be reevaluated at least every sixty days thereafter until performance has improved and is at least satisfactory or until six months have elapsed without the employee receiving a satisfactory evaluation. However, the Department, in Rule 200.12(5)(f), DLE Rules of Conduct, shortened the maximum sixty day time limit for job performance reevaluations of retained employees contained in Rule 22A-9.03(6) to a maximum of thirty days. Following appellee’s conditional performance evaluation for the period prior to September 18, 1979, she was reevaluated under the Department’s rule for the period between September 18 and October 19, 1979, although she did not receive the unsatisfactory evaluation until November 9, 1979, and it was not until December 11, 1979, that she received written notice that the Department intended to discharge her because of poor work performance.

Under the above rules, the Department was required to have either reevaluated appellee within thirty days of the October 19, 1979, unsatisfactory evaluation if she was to be retained, or to have discharged her within thirty days. Instead, DLE waited until December 11, 1979, fifty-three days after the October 19 evaluation before they provided written notice to appellee of her dismissal without reevaluating her. Even assuming the operative date under the rule is the date the employee personally receives the unsatisfactory evaluation, thirty-three days elapsed between the time appellee received the unsatisfactory evaluation on November 9 and the date when the Department informed her of their intent to discharge her on December 11 without conducting a further reevaluation as mandated by their own rule.

The Department contends that the delay in taking action against appellee was not unreasonable in light of the amount of time necessary for proposed employee disciplinary action to travel through the Department’s chain of command. We are well aware of the amount of time required for bureaucratic decision-making. However, we also note that it was the Department’s decision, for whatever reason, to shorten the sixty-day time limit for reevaluation of retained employees who have received an unsatisfactory job evaluation contained in Rule 22A — 9.03(6) to thirty days. If an employee is to be expected to honor and adhere to an agency’s internal rules of conduct, we think it is also reasonable to expect the agency to honor and adhere to its own rules of conduct. We conclude that the Department has failed to show an abuse of discretion by the Career Service Commission in finding that the Department did not follow its own rules in implementing disciplinary action against appellee.

Accordingly, the appealed order is affirmed.

AFFIRMED.

McCORD, J., concurs.

BOOTH, J., dissents without written opinion.


text:
    Paul B. ST. JOHN, Appellant, v. STATE of Florida, Appellee.
    No. XX-260.
    District Court of Appeal of Florida, First District.
    June 9, 1981.
    Rehearing Denied July 31, 1981.
    Philip G. Butler, Jr., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

St. John appeals his judgment of conviction for possession of cocaine entered upon his plea of nolo contendere, reserving his right to appeal the trial court’s denial of his motion to suppress.

St. John contends the search and seizure of cocaine found in codefendant Carl Stone’s residence pursuant to a search warrant was tainted by evidence obtained from two prior illegal and warrantless searches of Stone’s garbage by police upon which the issuance of the search warrant for Stone’s residence was based. In his motion to suppress below, St. John adopted Stone’s motion to suppress in reliance upon the automatic standing concept of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, on the same day as the suppression hearing below, the automatic standing concept was overturned in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Also see, Rawlings v. Commonwealth of Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Relying upon Salvucci, supra, the State, on appeal, argues that St. John had no legitimate expectation of privacy in Stone’s garbage and therefore lacked standing to contest the seizure of cocaine. St. John responds that the question of standing was not presented to the trial court by the State at the hearing on the motion to suppress and has therefore been waived.

We first conclude the State has not waived its objection that St. John lacked standing to contest the illegal search of codefendant Stone’s garbage which ultimately led to the seizure of cocaine. Coster v. State, 392 So.2d 16 (Fla. 3d DCA 1981). The analysis of the question of whether the contested search or seizure violated the Fourth Amendment rights of a defendant who seeks to exclude the evidence obtained by the search now comes under the heading of substantive Fourth Amendment doctrine rather than the heading of standing. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). After Rakas, supra, discarded reliance on the concepts of standing in determining whether a defendant is entitled to claim the protections of the exclusionary rule, the proper judicial inquiry is simply whether the defendant’s rights were violated by the allegedly illegal search or seizure. United States v. Salvucci, supra, 448 U.S. at 87, note 4, 100 S.Ct. at 2550, note 4, 65 L.Ed.2d at 625, note 4. In order to have the evidence of an alleged illegal search or seizure suppressed, it must be shown that government officials have violated a legitimate expectation of privacy held by the defendant. Rawlings v. Kentucky, supra. Consequently, since the question of standing is no longer distinct from substantive Fourth Amendment issues, it was not waived by the State’s failure to object on that ground at the hearing on St. John’s motion to suppress.

Because we must inquire into the findings of the trial court as to whether St. John had a legitimate expectation of privacy in the items or areas searched or seized, this case is not yet ripe for decision on the correctness of the denial of the motion to suppress. No evidence was presented and no inquiry was made by the trial court as to whether St. John, as opposed to Stone, had a legitimate expectation of privacy in those items or areas searched or seized. Therefore, we must necessarily relinquish this case to the trial court to allow St. John the opportunity to demonstrate, if he can, that his own Fourth Amendment rights were violated. Priori v. State, 386 So.2d 618 (Fla. 1st DCA 1980); Coster v. State, 392 So.2d 16 (Fla. 3d DCA 1981).

Accordingly, this case is remanded to enable the trial court to determine whether St. John had a legitimate expectation of privacy in those items or areas searched or seized.

REVERSED and REMANDED.

WENTWORTH, J., and LILES, WOOD-IE A. (Ret.), Associate Judge, concur.


text:
    The STATE of Florida, Appellant, v. Gary SHULAR, Appellee.
    No. 80-39.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 31, 1981.
    Janet Reno, State Atty. and Ira N. Low-ey, Asst. State Atty., for appellant.
    Mark King Leban, I, Richard Jacobs, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The State appeals from orders of the circuit court suppressing inculpatory statements and dismissing an information. We reverse.

Responding to a radio report that Officer William Askew was involved in the chase of grey Toyota, Officer Charles Orrett arrived at the described location and saw Officer Askew’s car in the middle of the street and a small car resting against a fence. Orrett also observed Askew walking toward his vehicle with the defendant, appellee Gary Shular. Officer Askew then collapsed with a heart attack and died a short while later.

Schular was given Miranda warnings and taken to the Public Safety Department Building. After ascertaining that Schular was a juvenile, an officer called Schular’s parents and told them they could come to the police station. Schular spoke with his parents for about one to one and one-half hours. The public defender arrived and very shortly thereafter Detective Roadruck advised Schular, his parents, and his attorney that Schular had to be fingerprinted before being transferred to Youth Hall. As Roadruck was taking Schular to be fingerprinted, Schular started to cry, said he was sorry, that he had not meant for the policeman to die and that he had only taken the car because he did not want to walk home. The trial court granted Schular’s motion to suppress the statement made to Detective Roadruck.

When a confession follows an unlawful arrest, the state must prove that the confession was not caused by the unlawful arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). If the taint of the original illegal activity is purged, the evidence may be admissible. See, e. g., United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Wimberly v. State, 393 So.2d 37 (Fla. 3d DCA 1981); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979).

Applying the totality of circumstances test of Brown, supra, we find the causal connection between the arrest and statement sufficiently attenuated as to purge any taint from the arrest. On this record there appears no flagrant police misconduct. There is no evidence that Schular was threatened or subjected to lengthy or repetitive interrogation or that he was overwhelmed by his surroundings. Subsequent to the arrest and prior to volunteering the statement, Schular met alone with his parents for over an hour and spoke with his attorney. Under these circumstances, we hold that it was error to suppress Schu-lar’s statement to Detective Roadruck.

We also find error in granting Schu-lar’s motion to dismiss pursuant to Florida Rules of Criminal Procedure 3.190(c)(4) where the state had filed a sworn traverse specifically denying material factual matters related in the sworn motion to dismiss. Fla.R.Crim.P. 3.190(d). State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979); State v. Cook, 354 So.2d 909 (Fla. 2d DCA 1978); State v. Whitehead, 353 So.2d 900 (Fla. 3d DCA 1977); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977).

Reversed and remanded for further proceedings consistent with this opinion.

      . Since Askew died without communicating the reasons for Schular’s arrest, the trial court found the arrest without probable cause. The state did not contest the court’s finding by this appeal.


text:
    IDEAL MUTUAL INSURANCE COMPANY, Appellant, v. Larry WALDREP, Appellee.
    No. 80-1509.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    Rehearing Denied July 31, 1981.

      McCune, Hiaasen, Crum, Ferris & Gardner and John R. Hargrove, Fort Lauder-dale, for appellant.
    Robert H. Wiggins, Miami Shores, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN' (Ret.), Associate Judge.

Defendant Ideal Mutual Insurance Company brings this appeal from a final judgment entered in favor of plaintiff Larry Waldrep, who sought the recovery of insurance proceeds from a policy issued by Ideal, insuring him against loss to his aircraft. In this complaint, Waldrep alleged that his aircraft was found in the Bahamas totally stripped and that a timely notice of loss was filed. Ideal’s answer admitted the existence of the policy, but denied coverage on the grounds that (1) Waldrep failed to give Ideal timely notice of the loss, (2) Waldrep failed to exercise reasonable care, as required by the policy, to protect the aircraft when the loss occurred, and (3) the aircraft was restrained or detained by Bahamian governmental authorities, thereby excluding coverage under the policy. Following a non-jury trial, a final judgment was entered in the plaintiff’s favor for the recovery of the full policy benefits.

Ideal’s points on appeal parallel the defenses enumerated above; therefore, the discussion must turn on the question of whether the evidence presented, when viewed with all reasonable inferences in favor of the appealed judgment, supports the findings of the trial court. See Lubrano v. Macauley, 125 So.2d 911 (Fla. 2d DCA 1961). The evidentiary facts are substantially uncontroverted.

On November 23, 1978, Waldrep lent his aircraft to an acquaintance, Ed Harmon, for a one day trip to the Bahamas. Because Harmon had not returned by the next morning, Waldrep made inquiries to the U.S. Coast Guard, the Federal Aviation Administration and the Bahamian authorities. He was told that no flight plan had been filed, but was advised by the Coast Guard that an aircraft had, in fact, been reported going down over Andros Island. Waldrep flew to Andros the next day in search of the missing aircraft, but was not successful. A few days later, he located the aircraft on an uninhibited island and thereupon notified the U.S. Coast Guard and the Bahamian authorities. U.S. Customs officers and Bahamian police officials then went to the site of the aircraft and found the dead body of Ed Harmon in the cockpit. At that time, Waldrep was told by the Bahamian authorities that the aircraft would not be released to him until an investigation had been conducted. Then, on December 2, 1979, a U.S. Customs officer and Bahamian authorities landed next to the aircraft, finding the remains of Ed Harmon and a large quantity of marijuana nearby. They also found that the aircraft had been damaged both by a bullet hole in the right wing flap and by the saturation of Harmon’s body fluids throughout the cockpit. (The Customs officer stated that no one could fly the aircraft without a “respirator.”)

Because of the threat of the forfeiture of his aircraft, Waldrep met for two days with Bahamian police officials at a location known as Fresh Creek and was advised that the aircraft would not be released until the investigation had been concluded. Upon returning to Florida, Waldrep contacted the United States Embassy in Nassau and learned that he could remove the aircraft to Fresh Creek, but only in the company of a Bahamian police officer.

Waldrep testified that because he heard “airport scuttlebutt” that the Bahamian authorities would charge him a large sum to release the aircraft, he decided to retrieve it on his own and bring it back to the United States without Bahamian authorization. In attempting to carry out this plan, he searched for a helicopter to take him to the site of the aircraft. When he could not find one, he decided to go to the island by boat with “a couple of guys” in order to fuel the aircraft and to fly it off the island. He waited until January 15, 1979, for the proper weather, but then determined to fly over to see the aircraft. Only then, when he found it stripped, did he notify Ideal of the loss.

On these facts, the trial judge made the following findings:

“1. Defendant IDEAL MUTUAL INSURANCE CO. issued policy # AHL 00 92 08 covering a Maulé M-5, N-5629B, belonging to Larry Waldrep.
“2. On/about November 26, 1978, LARRY WALDREP allowed Ed Harmon to use his aircraft. When the aircraft was not returned, LARRY WALDREP made numerous requests of the U.S. Coast Guard, Federal Aviation Administration, and the Bahamian authorities to locate the aircraft. On/about November 28, 1978, LARRY WALDREP located the aircraft on Little Woods Cay, Andros, Bahamas, where it appeared to be in good condition
“3. LARRY WALDREP made numerous calls to the Bahamian authorities and to the U.S. Embassy in Nassáu seeking assistance in retrieving his aircraft. He also made inquiries of helicopter operations in the Miami area, but none were available for the trip.
“4. On/about January 16, 1979, LARRY WALDREP flew over his aircraft and found it in a stripped condition with the motor removed, holes in the wings, the fuel tanks removed, and the wheels taken off. LARRY WALDREP, on/about January 18, 1979, reported the loss to the agents of Defendant IDEAL MUTUAL INSURANCE CO.
“5. The Bahamian Government, even though the aircraft may not have cleared customs, did not forfeit or seize the aircraft because of the cooperation of the owner.
“6. The aircraft was not utilized for an illegal purpose.
“7. The aircraft was not confiscated, nationalized, seized, restrained, or detained by the government of the Bahamas.
“8. There was no showing that the insured did not comply with all terms and conditions of the insurance policy.
“9. There was no showing that the insurance carrier was prejudiced by the conduct of the owner.”

Ideal argues that the notice of loss was untimely and that Waldrep did not sufficiently rebut the presumption of prejudice to Ideal. The pertinent policy provisions state:

“Coverage F . .. [Ideal agrees] [t]o pay for direct loss of or damage to the aircraft, hereinafter called loss, occurring . . . while the aircraft is not in motion
“Coverage G ... [Ideal agrees] [t]o pay for direct and accidental loss of or damage to the aircraft, hereinafter called loss, occurring while the aircraft is in motion ...”
******
“DEFINITIONS ... 2 ... ‘Occurrence’ means an accident, or a continuous or repeated exposure to conditions, which results in injury during the Policy Period
******
“CONDITIONS ... 8. Named Insured’s Duties When Loss Occurs — Coverages F and G. When loss occurs the Named Insured shall:
(a) protect the aircraft, whether or not the loss is covered by this Policy. . .
(b) give notice thereof as soon as practicable to the Company or any of its authorized agents ...”

The failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy. See Boyd v. Pennsylvania National Mut. Cas. Ins. Co., 195 So.2d 259 (Fla. 4th DCA 1967). Although the trial judge indirectly found in Finding No. 8 (set out above) that the notice of loss was timely, and in Finding No. 9 that there was no showing of prejudice, nonetheless, the failure of an insured to give notice of loss to his insurer in accordance with the provisions of the policy creates a presumption of prejudice to the insurer. See Mount Vernon Fire Insurance Company v. Editorial America, S.A., 374 So.2d 1072 (Fla. 3d DCA 1979). In such instance, the insured may recover only upon a showing that the late notice did not cause prejudice. See H.S. Equities, Inc. v. Hartford Accident and Indemnity Co., 334 So.2d 573 (Fla. 1976).

In considering the trial court’s finding that the notice of loss was timely, we note the well-established principle that such a finding arrives in this court with a presumption of correctness. See Apeco Marina, Inc. v. St. Paul Fire & Marine Insurance Company, 301 So.2d 136 (Fla. 3d DCA 1974). The determinations of (i) whether the notice provision was complied with and (ii) what is a reasonable time under the surrounding circumstances are questions of fact, see Hendry v. Grange Mutual Casualty Co., 372 F.2d 222, 226 (5th Cir. 1967), and will not be overturned unless the finding is against the weight of the evidence. See DuPont v. Parker and Company of Florida, 190 So.2d 388 (Fla. 3d DCA 1966).

In the present case, the record reveals no reasonable interpretation of the evidence which will support a finding that the notice of loss was given as soon as practicable. It should be borne in mind that the insured could not wait until the full extent of the damage to the aircraft was apparent, because the policy covered any “occurrence” resulting in injury to the aircraft. Notice is necessary when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise. See Mountainair Municipal Schools v. United States Fidelity and Guaranty Company, 80 N.M. 761, 461 P.2d 410 (1969); and see generally 45 C.J.S. Insurance § 1056 (1946).

The decision of whether a policy’s notice provisions have been complied with in a particular case must be evaluated on the facts of that case. See Laster v. United States Fidelity & Guaranty Company, 293 So.2d 83 (Fla. 3d DCA 1974). No fact in this case justified a delay from late November, when Waldrep discovered the aircraft on the ground and U.S. Customs and Bahamian authorities reported the pilot dead in the cockpit, until the following January 15, when notice was given. Even if the reasonable reporting date is extended until early December, when Waldrep knew that the downed aircraft was on a remote island with the pilot murdered, with a wing damaged by gunfire and with the interior damaged by the saturation of human body fluids, the delay to mid-January cannot be justified.

Waldrep’s plans to rescue the aircraft are of no moment in determining the necessity for notifying his insurance carrier of the fate of his aircraft. Whatever Waldrep’s motives, his subjective plans did not affect the necessity of notice. Cf., Deese v. Hartford Accident and Indemnity Company, 205 So.2d 328 (Fla. 1st DCA 1967); and Morton v. Indemnity Insurance Company of North America, 137 So.2d 618 (Fla. 2d DCA 1962).

The remaining question is whether the proof in this record supports a finding that the extended delay resulted in no prejudice to Ideal. We find that the trial judge overlooked the fact that in the absence of proof, the failure to give timely notice of loss is presumed prejudicial. See Mount Vernon Fire Insurance Company v. Editorial America, S.A., 374 So.2d 1072 (Fla. 3d DCA 1979), cited above for this rule. The record is without proof, and the appellate briefs contain little argument, on this point. Waldrep suggests that before he discovered that the aircraft was stripped, he had nothing to report. This position is not in accordance with the law set out above. There was clearly an extended delay in reporting the accident or occurrence, which not only could have — and in all probability would have — resulted in extensive damage, but which also could have resulted — and did, in fact, result — in total loss. Waldrep argues he was trying to eliminate or reduce the damage. It is only proper, however, that Ideal, as his insurer, be entitled to notice and an opportunity to eliminate or reduce its loss. Ideal was denied this opportunity by Waldrep’s failure to give timely notice of the accident or occurrence. The court’s conclusion that no prejudice was shown is insufficient under the circumstances of this case. We need not speculate upon what the insurer could have done. Ideal was simply entitled to notice and the opportunity to know the circumstances. We conclude that the trial judge misinterpreted the facts and misapplied the law in his conclusion that prejudice was not shown.

Having reached the decision that the judgment must be reversed, we need not discuss the remaining points on appeal. The judgment is reversed and the case remanded with directions to enter a judgment for the defendant, Ideal Mutual Insurance Company.

Reversed and remanded with directions.

      . Partially overruled on other grounds in State Farm Mutual Automobile Insurance Company v. Gonzales, 83 N.M. 296, 491 P.2d 513 (1971).