author: BOYER, Acting Chief Judge. BOOTH, Judge, PER CURIAM. BOOTH, Judge.

text:
    Otis DANIELS, a/k/a “Junkyard Slim”, and Lula Bell Phillips, Appellants, v. STATE of Florida, Appellee.
    Nos. FF-474, FF-451.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.
    Rehearing Denied Aug. 30, 1979.

      Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellants.
    Robert L. Shevin and Jim Smith, Attys. Gen., Richard W. Prospect, Raymond L. Marky and Patti Englander, Asst. Attys. Gen., for appellee.
   BOYER, Acting Chief Judge.

These consolidated cases have their genesis in the same factual setting or episode as do several other cases lately pending or now pending in this court. Some of the other cases which are factually similar, though in some instances involving different points of law or different arguments regarding the same points of law, have already been decided. Those which are relevant to the issues involved sub judice will be referred to and cited in subsequent portions of this opinion.

Appellant Daniels was charged in a three count information with the crimes of conspiracy to commit a felony. The information was twice amended and Daniels was ultimately tried and convicted on all three counts.

Phillips was charged only in the first count of the information with the offense of conspiracy to sell cocaine. She entered a plea of nolo contendere, specifically reserving her right to appeal the court’s denial of a motion to suppress certain tape recordings which motion had been theretofore heard by the trial judge and denied. Daniels’ motion for new trial was denied. He was sentenced to a term of ten years and ordered to pay a fine of $5,000.00. Phillips was sentenced to a term of three years with the provision that after she had served one year in prison she would serve the other two years on probation.

Both appellants filed timely notices of appeal. Upon appropriate motion the two cases were consolidated.

The basic facts are not in dispute. In June of 1975, Investigator George Howell of the Vice Squad of the Jacksonville Sheriff’s Office was given an order authorizing the interception of wire communications from the residence of one Eddie Lee Rose-mond in Jacksonville. Pursuant to that order, police officers attached equipment to the phone line to intercept incoming and outgoing calls from that residence.

Ten tapes of different phone conversations were admitted into evidence. Daniels’ voice was identified by several police officers.

Nathaniel McClain, a vice squad officer, was tendered by the State as an expert in the jargon that is customarily used by traffickers and dealers in illegal heroin and cocaine. He was allowed to interpret the calls and give his opinion as to the interpretation of what the parties meant in their taped conversations.

Appellants urge four points for our consideration. As phrased in appellants’ brief, they are as follows:

I.
“Whether an Assistant State Attorney can authorize an application for a wiretap.
II.
“Whether the affidavit in support of the order authorizing interceptions sufficiently alleged that reasonable investigative techniques had been tried but had failed.
III.
“Whether the Court erred in qualifying Investigator McClain as an expert in the language and jargon used by traffickers, dealers, and users of illegal drugs.
IV.
“Whether the trial court erred in allowing Investigator McClain to testify as to his interpretation of the phone conversations.”

The points will be considered in the order of convenience rather than the order in which they are argued in the briefs.

Under his third point appellant Daniels complains of certain language employed by the trial judge wherein he instructed the jury relative to the testimony of Investigator McClain, as follows:

“Now, ladies and gentlemen of the jury, in your absence the Court has accepted Mr. McClain, who is now on the witness stand, as an expert in the jargon or language used by traffickers, dealers, or users of heroin and cocaine, and the Court accepts Mr. McClain’s qualifications as an expert in that jargon.”

Prior to that statement being made to the jury, and now on appeal, appellants’ counsel argues that the statement was extremely prejudicial. His objection is directed to the words “an expert in the jargon or language used by traffickers, dealers, or users of heroin and cocaine”, contending that the only inference to be drawn from those words is that anyone using the language as described by Mr. McClain was a dealer, trafficker or user of heroin or cocaine.

Our examination of the record, however, convinces us that in the light of the totality of the circumstances no error was committed. The trial judge also instructed the jury:

“An expert witness is one who by education, training or experience has become an expert in any art, science, profession, business or calling. An expert witness is permitted to give his opinion as to the matters in which he is an expert and may also state the reasons for his opinion. You should consider each expert opinion received in evidence and give it the weight you think it deserves and you may reject it entirely if you find that the alleged facts upon which it is based have not been proved or that the reasons given in support of the opinion are not sound.”

The question of whether a person is qualified to testify as an expert on a particular subject is a question of law. Officer McClain was found by the trial judge to be an expert in a certain specified area. His statement to the jury was obviously so that they would be aware of the purpose of Officer McClain’s testimony. The jury was also properly advised regarding their function in assessing the testimony.

Appellant Daniels’ fourth point has been resolved contrary to his contentions by this court’s opinion in Slater v. State, 356 So.2d 69 (Fla. 1st DCA 1978) wherein we stated:

“ * * * [Ajppellant contends that the trial judge committed reversible error when permitting a police officer, over the objection of the defendant, to be qualified as an expert witness regarding street language in the drug culture and permitting the officer to explain to the jury his interpretation of words used by the alleged conspirators in intercepted conversations, the tapes of which were played to the jury. During those conversations the speakers used the terms ‘C’; ‘white girl’; ‘lady’; ‘snow’; ‘party pack’; ‘rock and roll’; ‘boy’; ‘white boy’; ‘doogee’; ‘kat-tie’; and the expression ‘three, but I know a duece smoking.’ The words were used in contexts wherein their normal lexicographical meanings would be illogical and meaningless. They would make no sense at all to the average juror. We find no error. (See United States v. Cirillo, 499 F.2d 872 (2d Cir. 1974); United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir. 1972); State v. Grayton, 163 Conn. 104, 302 A.2d 246 (1972), cert. den. 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495 (1972); and Llerandi v. Blackburn, 97 So.2d 247 (Fla.1957))” (356 So.2d at page 71)

Turning now to appellants’ second point, they contend that the trial judge erred in finding that other investigative techniques were tried and failed or reasonably appeared to be unlikely to succeed if tried.

F.S. 934.09 sets forth the procedure for interception of wire or oral communications in Florida. That statute provides, in material part, as follows:

“(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
* * * * * *
“(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
******
“(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception or wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting if the judge determines on the basis of the facts submitted by the applicant that:
******
“Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; * * * ”

In the sworn application for the order authorizing the interceptions Deputy Sheriff Howell stated:

“6. Although a Drug Enforcement Administration agent has succeeded in purchasing heroin from Eddie Lee Rose-mond, under controlled conditions, as evidenced by the affidavit of Anthony W. Hickson, investigators are presently unable to determine where Eddie Lee Rose-mond secretes the heroin and who his supplier might be. Although normal investigative procedures have yielded the information that Eddie Lee Rosemond is, in fact, a dealer in heroin, traditional investigative techniques, such as physical surveillance and use of the search warrant process, are not likely to reveal the ultimate source of the heroin in which Eddie Lee Rosemond deals. I know of no practical way, other than the use of the electronic intercept being applied for, to determine where Eddie Lee Rosemond secretes his supply of heroin. Furthermore, I know of no other practical way to determine the distribution areas, financiers and dealers in heroin centering around the Eddie Lee Rosemond organization.”

In discussing the statutory requirement relative to exhaustion of normal investigative procedures it was stated in United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) that:

“The statutory requirement that ‘normal investigative procedures’ be first exhausted, must be reviewed in a ‘practical and common sense fashion’:
“ ‘Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and have failed or why these are unlikely to succeed if tried, or to be too dangerous . . . . The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. See Giancana v. United States, 352 F.2d 921 (7th) certiorari denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); New York v. Saperstein, 2 N.Y.2d 210, 159 N.Y.S.2d 160, 140 N.E.2d 252 (1957). What the provision envisions is that the showing be tested in a practical and commonsense fashion. Compare United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).’
“1968 U.S.Code Cong. & Admin.News at p. 2190 (emphasis supplied). See United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1015-16 (1974), cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). To support a finding that normal investigative procedures are unlikely to be successful, we interpret the congressional directions as only requiring that there exists a factual predicate in the affidavit.” (515 F.2d at page 37-38)

The gist of the several decisions on the point reveals that the purpose behind the requirement is to assure that wiretapping is not resorted to in situations where traditional techniques would suffice to expose the crime. It is not necessary, however, that all possible techniques or alternatives to wiretapping be first exhausted. The showing must be that other reasonable investigative procedures have been tried and either have failed or reasonably appear likely to fail or to be too dangerous, or if other techniques have not been tried, the reasons why they reasonably appear to be unlikely to succeed if tried or to be too dangerous, viz: That wiretapping appears the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement. In addition to Deputy Sheriff Howell’s statement above quoted the judge who authorized the wiretap had the benefit, the record reveals, of other sworn statements all of which were part of the application. We conclude that the application, when considered in its entirety, was sufficient to support the court’s determination, as required by the above cited statute, that normal investigative procedures had been tried and had failed or reasonably appeared to be unlikely to succeed if tried or to be too dangerous.

Finally, we address appellants’ first point regarding the authority of an Assistant State Attorney to authorize an application for a wiretap.

F.S. 934.07 provides that “The Governor, the Attorney General or any State Attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with this chapter, an order authorizing or approving the interception of wire or oral communications * *

Article V, Section 17 of the Constitution of the State of Florida concludes with the sentence: “State Attorneys shall appoint such assistant state attorneys as may be authorized by law.”

F.S. 27.181(3) provides:

“(3) Each assistant state attorney appointed by a state attorney under the authorization of this act shall have all of the powers and discharge all of the duties of the state attorney appointing him, under the direction of said state attorney, except, however, that due to constitutional limitations, no such assistant may sign informations. He shall sign indictments and other official documents, except in-formations, as assistant state attorney, and, when so signed, the same shall have the same force and effect as if signed by the state attorney.”

In State v. Angel, 261 So.2d 198 (Fla. 3rd DCA 1972) it was held that under Article V, Section 9B of the former Constitution of the State of Florida and F.S. 27.181(3), above quoted, assistant state attorneys are entitled to authorize an application for an order authorizing or approving the interception of wire or oral communications, observing:

“ * * * Of course, this authorization only puts in motion the procedure to obtain such authority from a judicial officer pursuant to Section 934.09 Florida Statutes, and it is assumed that any judicial officer will comply with the requirements of chapter 934 before he permits the interception of any such communication.” (261 So.2d at page 200)

In Mitchell v. State, 381 So.2d 1066 (Fla. 1st DCA 1979), Chief Judge McCord, writing for this court, speaking of an application for a postponement of serving of inventories pursuant to F.S. 934.09(7)(e), said:

“Appellant’s contention is that because the application for extension was authorized by an assistant state attorney rather than the state attorney, it is invalid. This contention of appellants is without merit. § 934.07, Florida Statutes (1975), provides that any state attorney may authorize an application to a judge of competent jurisdiction for an order authorizing interception of wire communications by the Department of Criminal Law Enforcement. § 27.181(3), Florida Statutes (1975), gives the assistant all the powers of the state attorney. See State v. Angel, 261 So.2d 198 (Fla. 3 DCA 1972), aff’d. 270 So.2d 715.”

It is well settled, therefore, that under Florida law an application authorized by an assistant state attorney is valid.

However, appellants contend that the Federal statute governs all intercepts of wire communications; that although a state may adopt more stringent measures than those set forth in the Federal statute, a state may not adopt more permissive standards and that under the Federal statute only the “principal” prosecuting attorney of any state or the “principal” prosecuting attorney of any political subdivision thereof may make application for an order authorizing or approving the interception of wire or oral communications.

There are surprisingly few cases, nationwide, which have considered the point. The leading case appears to be State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975), cert. den. by the Supreme Court of the United States, 426 U.S. 949, 96 S.Ct. 3170, 49 L.Ed.2d 1186, wherein the Supreme Court of Kansas, in an exhaustive opinion, discussed the history of the federal statute and finally concluded that applications made by an assistant attorney general of the Kansas Attorney General’s office and an assistant district attorney of a Kansas County were invalid and that evidence obtained pursuant to an order based upon such applications was inadmissible and should have been suppressed. Several portions of that opinion are worthy of quotation: Regarding federal. preemption, the court said:

“Several principles emerge from decisions interpreting 18 U.S.C. § 2516(2) providing for state regulation of electronic surveillance. First, the federal act is not self-executing on the states; in order to obtain a wiretap warrant from a state court there- must be a state wiretap statute in effect (State v. Siegel, 266 Md. 256, 292 A.2d 86; Halpin v. Superior Court, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295, cert. den. California v. Halpin, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246). “Second, although a state may adopt a statute with standards more stringent than the requirements of the federal law (Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730), a state may not adopt a statute with standards more permissive than those set forth in Title III (In re Olander, 213 Kan. 282, 515 P.2d 1211). ‘A State statute would be preempted where the State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ (Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819, 835). If a state wiretap statute is more permissive than the federal act, any wiretap authorized thereunder is fatally defective and the evidence thereby obtained is inadmissible under 18 U.S.C. § 2515.” (544 P.2d at pages 347-348)

Striking down a statute of its own state which authorized an assistant attorney general to make application for a wiretap order, the court said:

“ * * * In Kansas the attorney general can appoint as many assistant attorneys general as he may deem necessary, [citation omitted] We cannot perceive Congress intended that at any given time the number of persons in Kansas who may obtain a wiretap order is limited only by the number of assistant attorneys general and county attorneys in existence at the particular time. * * * ”
******
“ * * * Strictly circumscribing this authority to that stated in the federal act — in Kansas the attorney general— will clearly eliminate any possible after-the-fact question as to identifiable individual responsibility for the application. Inasmuch as K.S.A.1971 Supp. 22-2513(1) was more permissive than 18 U.S.C. § 2516(2) in that it purported to authorize an assistant attorney general to make application for a wiretap order, our state statute must be held invalid as in conflict with the federal act. This means the trial court correctly ruled the Shawnee county wiretaps were illegally obtained.” (544 P.2d at page 350)

The Chief Justice of the Kansas Supreme Court dissented on the narrow ground that the record in that case revealed that although the applications were made by assistants, they were authorized and approved by the attorney general. The record in this case is silent as to whether or not, sub judice, the applications were in fact approved by the state’s attorney and no such issue drawing that distinction has been presented for our consideration.

In Poore v. State, 39 Md.App. 44, 384 A.2d 103, the Court of Special Appeals of Maryland, in March of 1978, considered a case wherein an assistant state’s attorney, rather than the principal prosecutor, sought and obtained an extension of time in which to give notice and file an inventory pursuant to that state’s wiretapping statute. Discussing the “role of principal attorney” as contained in the federal statute the Court said:

“The Supreme Court, in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), construed section 2516(1) as meaning that only the ‘Attorney General, or any Assistant Attorney General specifically designated by the Attorney General,’ 18 U.S.C. § 2516(1) (1970), was authorized to apply to a federal judge for an electronic interception order. An approval of the application by the ‘Executive Assistant to the Attorney General,’ Id. at 510, 94 S.Ct. at 1824, 40 L.Ed.2d at 350, based on his ‘knowledge of the Attorney General’s actions in previous cases,’ Id., did not satisfy the statute. A wiretap order by the United States District Court for the District of Maryland was invalid and the evidence derived therefrom was suppressed.
“Section 2516(2) speaks of ‘[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision . . . .’ The language of that section does not confer upon the principal prosecuting attorney any power to delegate to an assistant the authority to apply for an electronic interception. The Congress would not have so carefully limited the power of the Attorney General of the United States to delegate to a specifically designated assistant the authority to seek orders to intercept oral or telephonic communications and at the same time bestowed upon the principal prosecutor of any State, city or county in the nation an unbridled license to clothe any or all of his or her assistants with permission to seek such orders. It is inconceivable that the country’s highest legal officer would be so shackled while the principal prosecutor of the least populated county in the United States was free to permit any designee to apply for an interception order. We think the intent of the Congress to be that the authority devolved upon the principal prosecutor of the State or of the political subdivision, is personal to him, and may not be delegated. ‘[T]he authority to apply for court orders is to be narrowly confined ... to those responsive to the political process, a category to which the . . . [Assistant State’s Attorney] obviously does not belong.’ United States v. Giordano, 416 U.S. at 520, 94 S.Ct. at 1829, 40 L.Ed.2d at 356.” (384 A.2d at pages 111-112.)

Our own Sister Court of the Second District, in State v. McGillicuddy, 342 So.2d 567 (Fla. 2nd DCA 1977), considered a situation wherein the application for the interception of wire communications consisted of an affidavit by an investigator in the state attorney’s office, which application concluded with the words “authorized by”, followed by the signature of the state attorney. The trial court interpreted the federal statute to mean that one of the statutorily described officers had to physically appear before the judge as an applicant to obtain the wiretap order. The issue before the court was not, therefore, identical to that sub judice. However, the court appears to have simply assumed that the “principal prosecuting attorney” authorized by the federal statute eliminated assistants. The court said:

“The parties agree that Congress in the passage of Title III of the Omnibus Crime Control and Safe Streets Act preempted the field of the interception of wire communications under its power to regulate interstate communications. State v. Farha, 218 Kan. 394, 544 P.2d 341 (1975). The states are also permitted to regulate wiretaps providing their standards are at least as strict as those set forth in the federal act. State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971). Thus, in order to reach our conclusion, it is necessary to first look at the applicable federal statutes. ■
******
“It is evident that the use of wiretaps infringes upon the individual’s right to privacy. Therefore, the federal statute establishes procedures which are designed reasonably to protect the right of privacy, while insuring that necessary wiretaps may be used for investigative purposes. “The purpose of the procedure set forth in 18 U.S.C. § 2516(2) is to place the responsibility for authorization in a specific and identifiable person who is answerable to the people. United States v. Lanza, 341 F.Supp. 405 (M.D.Fla.1972). Under the statute, it must be clear who has authorized and set into motion the application for wiretap. Florida has implemented the congressional intent by specifying that a state attorney may be an authorizing official, [footnote omitted]” (342 So.2d at pages 568-569)

The court concluded:

“Therefore, we hold that it was unnecessary for the state attorney to apply for the wiretap order. His written authorization for the application sufficed for purposes of the applicable, federal and state statutes. Contra, State v. Farha, supra. [218 Kan. 394, 544 P.2d 341]” (342 So.2d at page 570)

In a footnote, the author of the McGillicuddy opinion observed:

“In State v. Angel, 261 So.2d 198 (Fla. 3d DCA 1972), our sister court held that an assistant state attorney could authorize an application for a wiretap under Sec. 934.07. However, it appears . that the question of whether this would meet the standards of the underlying federal legislation was not argued.” (342 So.2d at page 569)

It is clear, therefore, that our sister court agreed with the Supreme Court of Kansas as to the identity of the officer required to make application for a wiretap order but disagreed that it was necessary for that officer to physically appear before the judge to whom application is made. As above stated, that is not an issue sub judice.

Based upon a reading of the federal statute and a consideration of the authorities above cited we are constrained to conclude that notwithstanding the construction which has been placed upon our own state statute by other District Courts of Appeal and by the Supreme Court of Florida, the applicable federal statute is preemptive and a careful reading of that statute can only lead to the conclusion that the “principal prosecuting attorney” authorized by 18 U.S.C. § 2516(2) to make application for an order authorizing or approving the interception of wire or oral communications cannot be construed to include an assistant state attorney. It necessarily follows, and we so hold, that the motion to suppress the fruits of the. wiretaps sub judice should have been granted on the ground that the authorizing order was violative of the federal statute and appellants’ objection to the introduction of that evidence at trial should have been sustained on the same basis. Such illegally obtained evidence is not admissible.

The judgment and sentence here appealed by Otis Daniels is reversed, and the case is remanded for a new trial.

The judgment and sentence here appealed by Lula Bell Phillips is reversed. No substantive evidence having been adduced against her other than the tapes of the telephone conversations which we hold were admitted in error, she is ordered and discharged under such judgment and sentence.

REVERSED.

SMITH, J., concurs.

BOOTH, J., concurs in part and dissents in part.

BOOTH, Judge,

concurring in part and dissenting in part.

I dissent from the holding that the signature of an Assistant State Attorney authorizing the application for a wiretap renders the wiretap invalid, and the evidence obtained thereunder inadmissible. As to the remainder of the opinion, I concur.

The question has been determined in State v. Angel, 261 So.2d 198 (Fla. 3d DCA 1972); affirmed, 270 So.2d 715 (Fla.1972), that for the purpose of Florida law, an Assistant State Attorney is qualified to authorize an application for a wiretap order. To like effect is State v. Berjah, 266 So.2d 696, 698 (Fla. 3d DCA 1972) holding that the order of the court requiring suppression of wiretap evidence could not be based on the fact that the application for wiretap authorization was signed by the Assistant State Attorney. In Mitchell v. State, - So.2d - (Fla. 1st DCA 1979), this Court approved an application for postponement of serving inventories under the wiretap statute authorized by an Assistant State Attorney rather than the State Attorney.

The federal law does not require a contrary result or mandate the invalidity of Florida Statute § 934.07. Cases from Kansas and other states striking statutes of those states or otherwise interpreting their laws vis-a-vis the federal act to disallow applications signed by Assistant Attorneys General or Assistant State Attorneys, are not controlling, nor are their rationales persuasive. In State v. Miller, 313 So.2d 656, 657 (Fla.1975), the Florida Supreme Court held that under Florida Statute § 27.324, as conformed to the Florida Constitution which became effective January 1, 1973, Assistant State Attorneys “now serve as the alter egos of the state attorney appointing them and . . . are given by Section 27.324 ‘all powers of state attorneys,’ which includes the power to sign informa-tions . . . . ” The court stated:

“Section 27.324, F.S., conforms to Section 17, Article V, State Constitution, which became effective January 1, 1973. Section 17 of Article V contains no limitations on the Legislature affecting its power to grant assistant state attorneys authority to sign informations, as had been the construction given Section 10, Article I, and Section 15 of Article V of the 1885 Florida Constitution in State ex rel. Ricks v. Davidson (1935), 121 Fla. 196, 163 So, 588. This appears so because when said sections were construed to require signature of the state attorney on an information as a condition precedent to filing, the Governor appointed assistant state attorneys while now under Section 17, Article V the state attorneys pursuant to authorization of law appoint them. They now serve as the alter egos of the state attorney appointing them and to consistently carry out this noncon-flicting relation are given by Section 27.-324 ‘all powers of state attorneys,' which includes the power to sign informations. When an assistant state attorney signs and files a felony information it is tantamount to the state attorney himself filing it under present law." (e. s.)

Title 18, § 2516(2), U.S.C., provides in pertinent part as follows:

“The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge . . . for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for . an order authorizing, or approving the interception of wire or oral communications . . . .”

The intent of Congress in enacting the foregoing provision is not to designate a particular officer by name or title, but to insure the centralization of policy decisions of this type. What officer or officers within the State are designated by the State to apply for authorization for wiretap is a matter of State law. This is the holding of the Fifth Circuit Court of Appeals in U. S. v. Pache co, 489 F.2d 554, 562 (CA 5th 1974). That case specifically considers the Florida statute here in question and holds valid an intercept instituted pursuant to an order issued on application of the Governor of Florida. The defendants in that case argued that the authorization was illegal because not within the language of § 2516(2) in that the Governor does not qualify as “the principal prosecuting attorney of any State,” etc. The court in upholding the authorization and the wiretap and evidence obtained thereunder, stated (489 F.2d at 562):

“Florida has chosen to implement the requirement in the federal statute that the principal prosecuting attorney make application for the wiretap order, by designating, among others, the Governor of the state to authorize initial applications for interceptions . . . Appellants contend, however, that the chief executive officer of the state is not within the contemplation of the federal statute authorizing the ‘principal prosecuting attorney’ of the state to make initial approval. The purpose of including this requirement in the federal statute was not to designate a particular officer by name or title but to ensure the centralization of policy decisions of this type at the highest practicable levels, preferably on a statewide basis. In the words of the Senate report explaining section 2516(2):
In most States the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government.” (e. s.)

In Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975), the court upheld the validity of a Massachusetts statute which allows special designations of Assistant Attorneys General and Assistant District Attorneys to authorize applications for wiretap. The court upheld the validity of the wiretaps in that particular case authorized by an Assistant District Attorney, holding:

“The defendants concede that to require the personal appearance of a State’s principal prosecuting attorneys before the issuing judge in all instances would impede enforcement of the State criminal law; they do not assert that § 2516(2) mandates such a personal appearance . Rather, the defendants contend that ‘to apply’ means that the district attorney, if he is the principal prosecuting attorney in a case, must affirmatively demonstrate some familiarity with the application, thereby providing an indication that he reviewed the merits of the particulars of the application.
Emphasizing the term that the district attorney must apply, the defendants submit that a delegation of authority to the assistant district attorney empowering him to apply for the warrant is improper and in conflict with the Federal enabling section; that as a consequence the State statute is invalid in this regard; and that since the warrants issued in these cases were applied for by an assistant district attorney, the warrants are invalid. Hence, if the defendants’ position is correct, all evidence seized thereunder would be suppressed .
We do not think that the term ‘apply’ in § 2516(2) is to be so narrowly read as the defendants suggest. We base our conclusion on the statutory language of Title III, the legislative history of the act, and the reasoning of certain other decisions which have construed this section. .
The Senate Report, which analyzes section by section the provisions of Title III, with respect to § 2516(2) states: ‘Paragraph (2) provides that the principal prosecuting attorney of any State or the principal prosecuting attorney of any political subdivision of a State may authorize an application to a State judge of competent jurisdiction, as defined in section 2510(9), for an order authorizing the interception of wire or oral communications. The issue of delegation by that officer would be a question of State law. In most States, the principal prosecuting attorney of the State would be the attorney general. The important question however, is not name but function . . . Who that officer would be would be a question of State law.’ ” (emphasis theirs)

The opinion states, by way of guidance to state prosecuting attorneys and judges that special designations to Assistant Attorneys General or Assistant District Attorneys be on a case-by-case basis only.

In U. S. v. Fury, 554 F.2d 522 (CA 2nd 1977) the court upheld the validity of wiretap applications signed by the Chief Assistant District' Attorney. In that case there was a general designation by the District Attorney of Nassau County in New York which stated that the District Attorney was out of the State, and proceeding under a New York statute, he designated “in order of secession,” Edward Margolin and another Assistant District Attorney to perform his functions. The court stated:

“Fury also contends that CPL § 700.05 conflicts with 18 U.S.C. § 2516(2) in that the New York statute impermissibly permits delegation of the authority to seek eavesdropping orders to a subordinate in the absence or disability of the district attorney. He claims that Congress did not contemplate that any person other than the attorney general or county district attorney himself would have such authority. As one court which rejected this argument stated, ‘Congress simply would not have intended that local wiretap activity would be completely suspended during the absence or disability of the official specifically named [in § 2516(2)].’ State v. Travis, 125 N.J.Super. 1, 308 A.2d 78, 82 (1973), aff’d, 133 N.J.Super. 326, 336 A.2d 489 (1975).”

In U. S. v. Bowdach, 366 F.Supp. 1368 (D.C.S.D.Fla.1973), a case interpreting § 2516(1) of Title 18 U.S.C., which requires that federal wiretap authorizations be by “The Attorney General or any Assistant Attorney General specially designated by the Attorney General . . . ,” the court upheld the validity of a wiretap authorization application signed by in fact a Deputy Assistant Attorney General who signed the name of his superior, an Assistant Attorney General. The court found however, that the Attorney General himself had reviewed the file and initialed a memo with regard to the requested authorization. The court held:

“In sustaining against attack what appears on the surface to be a departure from the requirements of § 2518, it is essential to consider the policies underlying Title III [of Omnibus Crime Act a/k/a Title 18 U.S.C.]. Title III was designed to achieve a balance between the need for effective law enforcement techniques to battle the increasing sophis-tification of organized crime and the incursions upon individual privacy resulting from the utilization of those techniques. Congress sought to abide by the constitutional requirements set forth by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). In those cases the Court delineated threshold considerations that would afford a minimum standard of constitutionality; interposition of a neutral and detached judicial authority, existence of probable cause, manifestation of particularity, minimization as to time and seizure, exercise of dispatch and notice. Congress apparently desired to go beyond these guideposts and establish the additional requirements of centralization and uniformity of policy-making. § 2518 was designed to affix the lines of responsibility as a corollary to promoting a uniform policy in wire interception. Thus, although considerations of centralization and uniformity of decision-making are adjuncts to the protection of privacy, those considerations do not reach the level of constitutional status. This is not to suggest, however, that blatant disregard for the statutory-based mandates of Title III will be countenanced. . .. .” (e. s.)

Under the foregoing authorities, Florida Statute § 934.07 is a proper implementation of Title 18, § 2516(2), and provides standards for protection of Fourth Amendment rights equivalent to, and as strict as, those of the Federal Act.

I would affirm the convictions below.

ON PETITION FOR REHEARING

PER CURIAM.

The State’s petition for rehearing calls to our attention that a panel of this court, in Epps v. State, 354 So.2d 441 (Fla. 1st DCA 1978), directly passed on and rejected, although without discussion in the opinion, a contention that Title 18 U.S.C. Section 2516 is preemptive of Florida law which otherwise permits any assistant state attorney to make applications for orders authorizing or approving interception of wire and oral communications. Although a majority of this panel consider that the federal preemption question was not raised or decided by the Supreme Court in Angel v. State, 270 So.2d 715 (Fla.1972), all agree that the question was raised and briefed in Epps, and that there is a conflict in result, if not in citable precedent. This case and Epps concern the same wiretap. Whether the conflict is such as to create Supreme Court jurisdiction is not our concern; rather our concern is that this Court has rendered decisions we recognize as inconsistent on the same facts.

Were the Epps opinion of preceden tal value, and of importance to anyone except Epps himself, to whom we can here give no relief, Judges Robert Smith and Larry G. Smith would expressly recede from Epps. At any rate they adhere to the opinion of Judge Boyer in this case. Judge Booth adheres to her dissent as filed. Accordingly, the State’s petition for rehearing will be denied; nevertheless, we certify to the Supreme Court that this decision passes on a question of great public interest, namely:

Does Title 18 U.S.C. Section 2516, requiring application by the “principal prosecuting attorney” for an order authorizing or approving the interception of wire or oral communications, preclude the exercise of that power by a general class of prosecutors who are assistant state attorneys in Florida?

Petition for rehearing DENIED.

ROBERT SMITH, Acting C. J., and LARRY SMITH,' J., concur.

BOOTH, J., specially concurs.

BOOTH, Judge.

I concur in the denial of the petition for rehearing.

      . The State recited in its brief that it accepted the facts as contained in the statement of facts set forth in appellants’ brief.

      . No substantive evidence was adduced against appellant Daniels other than the taped telephone conversations.

      . Only one tape relating to appellant Phillips was introduced into evidence at the trial.

      .The third and fourth points related only to the trial of appellant Daniels and can therefore have no relevancy to appellant Phillips because she plead nolo contendere and was not therefore involved in the trial before the jury.

      . See 13 Fla.Jur., Evidence, § 311 and authorities therein cited.

      . No objection was made at the trial nor here regarding the last instruction above quoted.

      . Whether the trial court erred in allowing Investigator McClain to testify as to his interpretation of the phone conversations.

      . Whether the affidavit in support of the order authorizing the interceptions sufficiently alleged that reasonable investigative techniques had been tried but had failed.

      . 18 U.S.C. § 2518(1)(c) also contains the same requirement as to normal investigative procedures.

      . See also United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); United States v. Steinberg, 525 F.2d 1126 (2d Cir. 1975); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007 (1974); United States v. Pacheco, 489 F.2d 554 (5th Cir. 1975).

      . State v. Barnett, 354 So.2d 422 (Fla. 2nd DCA 1978), and authorities therein cited.

      .For a case involving the same wiretap denying a motion to suppress because of delay in service of the post-interception inventory required by F.S. 934.09 see Hicks v. State, 359 So.2d 475 (Fla. 1st DCA 1978). See also Eppes v. State, 354 So.2d 441 (Fla. 1st DCA 1978).

      . Whether an Assistant State Attorney can authorize an application for a wiretap.

      . Affirmed by a per curiam opinion by the Supreme Court of Florida, Angel v. State, 270 So.2d 715 (Fla.1972).

      . 18 U.S.C. § 2510, et seq.

      . Title III, 18 U.S.C. § 2516, et seq.

      . Horn v. State, 298 So.2d 194 (Fla. 1st DCA 1974). For a discussion as to the distinction between a state attorney, a constitutional officer, and an assistant state attorney, appointed by a state attorney, see State ex rel. Christian v. Austin, 302 So.2d 811 (Fla. 1st DCA 1974).

      . Cert. denied 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975).

      . Mass.Gen.L., Chap. 272, § 99, FL:
      “The attorney general, any assistant attorney general specifically designated by the attorney general, any district attorney or any assistant district attorney specially designated by the district attorney may apply ex parte to a judge of competent jurisdiction for a warrant to intercept wire or oral communications

      . Cert. denied 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1978).

      . Affirm 501 F.2d 220 (1974), cert. denied 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 426 (19s75).


source: Caselaw Access Project

author: BOOTH, Judge. LARRY G. SMITH, Judge,

license: Public Domain

text:
    ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, Appellant, v. John W. TURNER, Jr., Volusia County Property Appraiser, and Robert D. Summers, as Director of the Revenue Division of Volusia County, Florida, Appellees.
    No. KK-196/NT1-10.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 1980.
    As Corrected On Denial of Rehearing March 4, 1980.

      Guyte McCord, III, of Spector & Tunni-cliff, Tallahassée, for appellant.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Tallahassee, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Volusia County, upholding the 1976 ad valorem tax assessment on acreage owned by appellant.

The facts are that the property was originally purchased in 1967 and 1968, divided on paper into more than 5,000 parcels and registered with the Florida Land Sales Board. By 1971, some 90% of the land had been sold under contracts for deeds, which contracts provided that an extensive system of drainage and graded dirt roads would be constructed by 1973. However, difficulties were encountered following the abolition of the South County Drainage District, which had theretofore been contractually responsible for construction of the graded dirt roads and drainage system on the property. In 1971, the Department of Pollution Control was empowered by the Legislature to require permits for construction and operation of water pollution sources. Appellant’s project was presented to the Department of Pollution Control in June of 1972, but the Department refused to take any action while litigation concerning the South County Drainage District was pending. In 1973 an agreement was reached between appellant and Volusia County concerning the transfer of functions and responsibilities of the former South County Drainage District, and in September of 1974, appellant filed a formal application for a permit with the Department of Pollution Control. This was required because roads and drainage projects already undertaken by appellant were considered to be “pollution sources” by the Department of Pollution Control. On November 6,1974, the Department of Pollution Control, by letter from the regional engineer of the Orlando office, denied appellant’s permit application. Administrative review of the denial of. appellant’s permit application was pursued and the matter was eventually settled by stipulation between the parties in June of 1977.

The question presented is whether the tax assessor, in determining the assessment for the year 1976 properly considered the moratorium on development or improvement of the property as required by Florida Statute § 193.011, which provides, in pertinent part, as follows:

“193.011 Factors to consider in deriving just valuation
In arriving at just valuation as required under s. 4, Art. VII of the State Constitution, the property appraiser shall take into consideration the following factors:
* * * * * *
(2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law.” (e. s.)

Specifically, the question presented is whether the tax assessor properly interpreted subsection (2) of § 193.011. Under the foregoing statute, the assessor was required to consider the highest and best use to which the property could be put on January 1,1976 and “in the immediate future,” taking into consideration any regulations and moratoriums which “prohibit or restrict development or improvements.” The highest and best use in the immediate future, refers to a use which is “expected immediately.” Lanier v. Overstreet, 175 So.2d 521 (Fla.1965).

The present use of the property on the assessment date was, according to the landowner’s evidence, for a hunting and fishing preserve. The land was largely unusable for other purposes due to lack of drainage and access roads. On January 1, 1976, development was at a standstill and there was the poténtial of 5,000 lawsuits from irate purchasers due to the three-year delay of improvements contracted for by appellant, which improvements required permits.

On January 1, 1976, there had been only one resale of the property, a refund by appellant of a purchaser’s money in an. effort to avoid a lawsuit. There was no income from the property and permit applications for further development had been rejected by the Department of Pollution Control. The sole existing canal on the land was unconnected to a drainage area and survey and survey markers on the land were directly related to the development which was still awaiting government approval.

Concerning appellee’s consideration of § 193.011(2), the testimony of the Volusia County property evaluator supervisor, Frank DeBartolo, is, in pertinent part, as follows:

“Q [B]ut assume that on January 1, 1976 through the refusal of the State to issue necessary permits, a prospective buyer of one of these tracts would have no assurance that he could use this land for anything other than as its being used now in its natural state. Is it your judgment that he would have been willing to pay $700 an acre for that piece of property?.
A You made some assumption that I of course don’t make with you.
Number one is that you are not going to get the — can’t get the approval. See, I have been — I haven’t been able — our department hasn’t been able to feel that way yet .. .
**♦*#*
Q . The question is simply this: In regard to the 1976 assessments that we’re talking about here, did you consider there was or was not a moratorium as of January 1, 1976 as defined by this statute?
A We considered this — this delay problem — whatever you want to — you’re calling it a moratorium. . . . But in any event this delay, this problem, which we’ve talked about been testified to, definitely was considered in the early 76 or as of the date of the assessment .
We did consider it and the only adjustment we made on that overall subdivision was to the other purchasers, your purchasers, not to the corporation because we felt that value was conservative enough that it reflected the problem.
* * # * * #
A . [W]e knew it — that you were having problems on a delay. And rest assured you’re not the only one with problems of this general nature. I don’t know about your specific problems. So we were aware of it and some of your purchasers had notified us that your client had told them they couldn’t pursue because of problems with state, local, county and all, I don’t know We surely did not feel at that time and don’t today that this is a — its done, its finished, its absolutely gone busted, whatever language you want to use; maybe moratorium is the proper name, legally. And therefore everything is collapsed. No. We don’t believe that’s happened yet. Now I don’t know what the future holds for your subdivision . . . " (e. s.)

In the foregoing testimony, the assessor assumes that approval for development will ultimately be obtained, admits he didn’t know appellant’s specific problem, but states that the development is not “done,” “finished,” “absolutely gone busted,” or collapsed, the moratorium factor results in no reduction in the assessed value.

This property was assessed as “speculation land of A-l property” described as “undeveloped land speculation subdivision,” and $700 to $800 per acre with no reduction for the moratorium factor. This assessment admittedly required speculation that appellant would eventually receive the needed permits and that the property could be made useable in something other than its wild state. Subsequent history of the property has revealed how speculative the assessment was on the assessment date, since the permitting problems were only resolved by court settlement some two years later.

The use of private property is increasingly subject to government regulation' in the public interest to protect the environment and guard against thoughtless development. In 1974, the Legislature, in recognition of this increased regulation and its burden, amended § 193.011(2) to specifically require that property appraisers consider government moratoriums affecting development in arriving at a just valuation for tax purposes. Basic concepts of fairness, as well as principles of property appraisal, preclude valuation for tax purposes without due consideration of the governmental restrictions on use of the property to be taxed. Thus, even prior to the 1974 amendment, zoning regulations applicable on the taxable date were required to be considered in determining the highest and best use of the property. Straughn v. Tuck, 354 So.2d 368 (Fla.1977).

The Florida Supreme Court, in Straughn v. Tuck, supra, held the tax assessor must consider each factor in § 193.011, holding:

“[T]he tax assessor in this case failed to consider the ‘present use’ of appellees’ property, in determining the ‘highest and best use’ to which the property could be expected to be put in the ‘immediate future.’ Section 193.011(2). Rather,, he valued it by subjective standards, using speculative factors, assuming there would be a zoning change and the land converted to a more intensive use . . . The uses under the statute must be immediate, not speculative, and not predicated on conversion to higher or better uses

In Straughn v. Tuck, the court found that the assessment of unimproved land zoned agricultural based on the assessor’s speculation that zoning could be changed to allow a more intensive use was improper and failed to take into account the factor of the statute requiring determination of present use and highest and best use in the “immediate future.” In Williams v. Simpson, 209 So.2d 262 (Fla. 1st DCA 1968), this Court set aside an appraisal based on the “ultimate poten-, tial” of the property, citing the rule of the Florida Supreme Court in Lanier v. Overstreet, 175 So.2d 521 (Fla.1965), holding:

“By authorizing tax assessors to consider, as one of the factors ‘[i]n arriving at a just valuation’ of property, the use to which the property ‘can be expected to be put in the immediate future’ (emphasis added), the Legislature has, under the familiar rule of expressio unius est exclu-sio alterius, prohibited tax assessors from considering potential uses to which the property is reasonably susceptible and to which it might possibly be put in some future tax year or, even, during the current tax year. To be considered, the use must be expected, not merely potential or a ‘reasonably susceptible’ type of use; it must be expected immediately, not at some vague uncertain time in the future . ” (emphasis theirs)

In the instant case the assessor testified that he “considered” the moratorium provision of the statute but his testimony reveals: (1) That he was unaware of the facts concerning the moratorium and (2) That he misconstrued the statutory provision to require that the proposed development be abandoned as of the January 1 date, or as he stated, “absolutely gone busted” in order for the provision to apply and (3) That he considered eventual rather than immediate future uses based on conjecture that the approval would be obtained.

A moratorium is by definition “a delay officially required;” “a suspension of activity;” “a temporary ban on the use of something.” In interpretation such as testified to by the assessor here requires a high degree of finality and permanence of restriction and prohibition of development before the moratorium factor can be given effect in making the assessment. This defeats the legislative intent to require consideration in each taxable year of governmental delays enjoined on the development and improvements of private property. Florida Statute 193.011 does not require that there be an abandonment of development or improvement of the property, but rather that there be a delay due to the causes specified. Here there was clearly such a delay, and its effect on the value of the property must be accurately taken into account.

Accordingly, we must remand this cause to the trial court for determination of the value of the property for its highest and best use in accordance herewith. REVERSED and REMANDED.

MELVIN, J., concurs.

LARRY G. SMITH, J„ dissents.

LARRY G. SMITH, Judge,

dissenting.

It is possible that the majority has misinterpreted the appellant landowner’s evidence concerning the present use of the property, and in so doing, has been led to an erroneous view of the entire case. Appellant’s witness, Mr. Johnson, testified:

“Q. Mr. Johnson, in your opinion what do you consider or what did you consider to be the highest and best use of this property as of January 1, 1976?
“A. I think somebody might use it for a hunting preserve, the same as the Farm-ington area.”

These statements do not constitute evidence that the “present use of the property”, on the assessment date, was for a “hunting and fishing preserve” as stated in the majority opinion. It is clear, however, that Mr. Johnson failed to realistically evaluate the land for any useful purpose. He described it mostly as poor, swampy land; and there was “so much of it”, that he did not know how it could be used even if roads were put in it. He further testified:

“Q. You say in your opinion that the highest and best use of this property as of January 1, 1976 was simply as a wild life refuge or as it is in its natural state?
“A. Right.”

This witness’ testimony was subject to other infirmities which will be referred to later.

The trial judge rejected, as he was empowered to do, the testimony of appellant’s expert witness who could see no conceivable value in the property, except possibly for use in its raw, natural state, as a' wildlife refuge, or. as a hunting and fishing preserve. Opposed to this the remaining testimony, including that of the tax assessor’s property appraiser, pointed to an established value for the land based upon its use for residential development, which, coincidentally, is the purpose for which it was bought by appellant some nine years previously. The evidence further discloses without any contradiction that the money and efforts of the developer have been continuously devoted to accomplishment of the purpose for which the property was purchased during the entire period of time from its purchase up to and including the assessment date — January 1, 1976.

It appears to me that the majority has merely “assumed” a reduction in value of the land because of the delay experienced by the developer in obtaining needed permits from the regulatory authority. However, no evidence was presented in the trial court to show the extent to which any delay in appellant’s development plans was due to governmentally imposed restrictions, and to what extent the delay was attributable to appellant’s delay, inadequate planning, engineering, or failure to devote the necessary financial resources to the construction of necessary improvements.

Here, appellant at all times fully understood the necessity of constructing suitable drainage and road facilities. Appellant was contractually bound to do so. The original plan was for appellant to advance the money for these improvements to the South County Drainage District, and to be repaid by the District’s assessment of these costs against the subdivision lot purchasers. Obviously, appellant and the Department of Environmental Regulation disagreed on what improvements would be suitable. There is testimony, from appellant’s vice president, that originally the estimated cost was approximately $110.00 per acre for these improvements, payable by the lot purchasers over a ten year period of time, commencing in 1980. He further testified that these estimated costs increased. .But no testimony was presented to show that appellant was prevented from constructing suitable roads and drainage; only that it chose to submit an application that was not suitable, under rules and regulations enforced (and properly so, so far as this record shows) by the Department of Environmental Regulation. Had appellant chosen earlier to submit a different plan, there is no evidence to show that it would not have been acceptable, as a modified plan ultimately was. In fact, the matter was settled by negotiation and agreement, finalized in 1977.

It appears to me that the majority has misapplied the term “moratorium” in equating it with “governmental delay”. The opinion defines moratorium as “a delay officially required”; a “suspension of activity”; or “a temporary ban on the use . of something”. The delay here was occasioned by appellant’s failure to provide adequate pollution control facilities under Chapter 403, Florida Statutes, so as to bring the project within the standards or rules promulgated by the Department of Environmental Regulation. Section 403.087, Florida Statutes. There is no basis in the record for a determination, as the majority apparently has done, that the statute, or any rules, regulations or standards adopted pursuant to the statute, were “temporary”, or merely intended to “delay” any contemplated development. The regulations were permanent, to the same extent that any other law, rule or regulation is permanent. Obviously they are subject to change; but this case does not involve a matter of change of use brought about by a change in regulations, nor a delay of use for a particular purpose such as would be contemplated by the term “moratorium”.

I have no quarrel with the majority’s insistence that the extent to which land is subject to government regulation must be considered in determining its highest and best use. Straughn v. Tuck, 354 So.2d 368 (Fla.1977). But I think the majority has misapplied this principle in this case, because the issue here was “value”, not “highest and best use”. There was no evidence before the trial court to support a ruling that the highest and best use of the property was other than the use to which it was being and had been devoted for some nine years. The fact that the roads and drainage required by state law proved more costly than the developer initially assumed surely is a factor bearing upon value. But the existence of such regulations does not preclude development or use of the land; they simply require that steps be taken to insure the health, welfare and safety of those using the land, as well as the public generally.

Here, appellant’s proposed drainage and water control plan simply did not make adequate provision for the control of water pollution, and its application for a permit was denied for that reason. The fallacy of appellant’s argument that it was delayed by a “moratorium” is shown by the fact that before trial of this proceeding appellant succeeded in obtaining the necessary permit, not by virtue of a change in the law, rules or regulations, but because of a modification of appellant’s plan for construction and maintenance of drainage facilities on the property. Also, at least a part of the delay in arriving at a successful solution to the property’s drainage problems can be attributed to appellant’s initial error in planning under which the property was divided, on paper, into a “grid pattern”, and lots were sold on that basis. This prevented normal use of topographical and other natural features of the land which would be utilized in a well planned development.

Furthermore, it should be noted that this case does not involve a question of the validity of any statute, rule or regulation under the Constitution or Laws of Florida. To the contrary, the parties here specifically stipulated before the administrative tribunal that such questions were beyond the scope of the administrative proceedings; and there is no evidence of appellant’s attack upon any statute, rule or regulation by appropriate court action during this controversy.

The majority seems to assume, although it is not spelled out clearly in the revised opinion, that land which has a value for subdivision development, as appellant’s land obviously has, must be considered as without value for that purpose when it becomes subject to state regulations requiring the drainage and road facilities to meet certain standards. Thus, the majority translates “regulation” as “moratorium”, without requiring even the contention, much less proof, that the required standards are impossible, practically or economically, for any interested purchaser to meet.

Of course, any land use regulation, or change in zoning laws or regulations restricting use or prohibiting development for certain purposes for which it would otherwise be suitable, would have to be taken into account in determining “value”. There are no such regulations or ordinances involved in this proceeding. The property was purchased in 1967 in its raw, undeveloped, natural state for $500.00 per acre. At that time it was zoned A-l, “residential use”, and this zoning has not changed. Even the testimony of appellant’s witness makes it crystal clear that no one could conceivably contemplate development of the property into residential homesites without construction of roads and making provision for adequate drainage. However, no one testified that there was any basis or reason for suggesting that the property had less value, on January 1, 1976, without the necessary roads and drainage, than it had when purchased in 1967. There was no more reason to assume that suitable development could not be accomplished on January 1, 1976, by construction of adequate roads and drainage, than there was when the property was purchased in 1967, for $500.00 per acre.

The majority opinion criticizes the assessor’s interpretation of the moratorium statute as requiring “a high degree of finality and permanence of restriction and prohibition of development” before the moratorium factor can be given effect in making an assessment. And further, that this “defeats the legislative intent to require consideration in each taxable year of governmental delays enjoined on the development and improvement of private property”. These statements illustrate the majority’s insistence upon equating “permitting delays” with “moratorium”, as previously alluded to in this dissent. They also indicate a misconception of the assessor’s position, as enunciated by his property evaluator, Mr. DeBartolo. It is clear from his entire testimony that he used the expressions — that the development had not “absolutely gone busted”, “collapsed”, not “done”, or “finished” — to emphasize that the property was still regarded as property the highest and best use of which was for development as residential homesites. These expressions further explain his conclusion that nothing had occurred (prior to the assessment date) to indicate that a prospective purchaser would view the property as anything other than suitable for development as residential homesites, as did appellant at the time of purchase and continuously throughout the intervening years.

In addition, the assessor had other highly relevant information upon which to base his assessment not mentioned in the majority opinion. He testified that he was familiar with appellant’s permitting problems; that he had in fact attended the County Board of Adjustment hearing at which appellant raised the question of the “moratorium” restricting or prohibiting the property’s development; and that there was newspaper publicity of which he was aware concerning the problems appellant was experiencing in getting final approval for completion of the development. At no time was the assessor’s office informed that the use, or intended use of the property, had undergone a change, although appellant had every opportunity to so inform the assessor, if that were the case, when Mr. DeBartolo contacted appellant’s representatives in Miami by phone early in 1976 to discuss the property. The majority opinion seems to imply that the assessor valued the property as a fully developed residential subdivision, but this is not the case. Mr. DeBartolo specifically testified that he considered only the surveying and platting work, and the fourteen mile drainage canal as improvements to the property (all of which appellant continued to make use of when an overall plan was finally agreed upon in 1977), and that based upon the purchase price of $500.00 per acre in 1977, adjusted for time, these improvements could well be considered as adding from $150.00 to $200.00 per acre to the original purchase price, thereby confirming the present assessment of $700.00 per acre. He further stated that the $700.00 per acre assessment was “conservative enough” to reflect the permitting problems appellant was having. He stated specifically:

“Our Department felt that the $700.00 per acre at the time was still a fair market value with these problems.”

Also, contrary to appellant’s expert witness, Mr. DeBartolo said that only about 36% of the land is “bad land”; a portion of it is not wet all the time, and a portion is wet, unuseable without drainage; in some parcels there were large areas of cleared, grassy land that years ago probably was a cattle operation; that all of the land was zoned “A — 1, residential use”, and all was valued as “undeveloped land speculation subdivision”. Furthermore, he stated, it was valued “comparable to other undeveloped parcels”.

In all candor, the testimony of appellant’s expert witness was not entitled to serious consideration. First, he could suggest no use for the land except as a “hunting preserve”. However, there is absolutely no evidence that the property was suitable for or could presently be used for that purpose. There was no evidence that would lead a reasonable person to believe that use of this A-l residential land as a hunting preserve is the use to which the property could “be expected to be put in the immediate future”, Section 193.011(2), Florida Statutes. Further, the land was divided into more than 5,000 parcels, and some 95% of these parcels had been sold to remote purchasers. There is no suggestion in the evidence presented by appellant or any other witness as to the feasibility of getting a lease agreement from some nearly 5,000 different purchasers so as to make the property useful as a hunting preserve. It is rather disturbing that the majority would, base its decision upon any such prospective use of the property when there is in the record a sworn affidavit made by one of appellant’s officials which specifically states that in addition to the permitting problem, the fact that the property has been deeded and sold under contracts in a “checkerboard” fashion, has rendered the land unsuitable for economical agriculture use, cattle grazing or any other economic use.

Secondly, the appellant’s appraiser admitted that he completely failed to consider the eight criteria for valuation under Section 193.011, Florida Statutes. He stated that in his opinion these requirements were “something for the tax assessor to consider”. This court held in St. Joe Paper Company v. Brown, 210 So.2d 725 (Fla. 1st DCA 1968), cert. discharged 223 So.2d 311 (Fla.1969), that a taxpayer which confined its evidence of valuation of agricultural lands to the income method, and excluded mention of other enumerated criteria, failed to establish a prima facie case as to illegal exees-siveness of the assessment on its forestry lands. Thus, it clearly appears from the appellant’s appraiser’s testimony that he based his opinion of value solely upon assumption of a use to which the property was not presently being put, nor could reasonably be expected to be put in the immediate foreseeable future, totally disregarding the statutory criteria for valuation for tax purposes. Under the holding of St. Joe Paper Company v. Brown, appellant’s evidence was insufficient to establish the value of the property, and was properly rejected by the trial court.

Assessments and assessment roles are pri-ma facie correct, and the prima facie correctness of an assessment when made by property officers must be affirmatively overcome by appropriate and sufficient allegations and proofs, excluding every reasonable hypothesis of legal assessment. 30 Fla. Jur. Taxation, § 261.

In the final judgment the trial court found, among other things, the following:

“. . . Here, the greater weight of the evidence supports the assessments as voluntarily corrected. Stretched to its greatest limit, plaintiff’s evidence merely revealed the existence of a difference of opinion as to the value of the subject properties as of January 1, 1976. Very clearly, however, the property appraiser’s opinion is more creditable and convincing and has greater logical and factual support, than the different opinion presented by plaintiff.”

There is no justification for remand of this case to the trial court “for determination of the value of the property for its highest and best use” as directed by the majority opinion. This issue has already been fully tried, and the trial judge has made a determination on this issue based upon the conflicting evidence presented to him by the parties. The trial judge chose to believe the assessor’s evidence establishing a value of $700.00 per acre, and to disbelieve appellant’s evidence of $100.00 per acre. If this court rejects the trial court’s ruling on the conflicting evidence, and mandates a determination of the facts favorable to appellant, the court is compelled to adopt the figure of $100.00 per acre for this “hunting preserve”.

I would affirm the judgment of the trial court which I find to be amply supported by the law and the evidence.

      . Webster’s Third New International, Unabridged, at 1469 (1976).


author: SHIVERS, Judge.

text:
    Christine McCLENDON, Appellant, v. INTERNATIONAL HOUSE OF PANCAKES and Employers of Wausau, Inc., Appellees.
    No. QQ-375.
    District Court of Appeal of Florida, First District.
    March 17, 1980.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellant.
    Thomas W. Conroy of Conroy & Simberg, Hollywood, for appellees.
   SHIVERS, Judge.

This is an appeal from Order entered by the Judge of Industrial Claims (now Deputy Commissioner) dismissing appellant’s claim for additional workmen’s (now workers’) compensation benefits. We affirm.

The appellant presents the following issues for review:

I.' WHETHER THE JUDGE OF INDUSTRIAL CLAIMS ERRED IN* ADJUDICATING PERMANENT DISABILITY WHERE THAT ISSUE WAS NOT IN CONTROVERSY.

II. WHETHER THE JUDGE OF INDUSTRIAL CLAIMS ERRED IN DETERMINING THE CLAIMANT DID NOT SUSTAIN A LOSS OF WAGE EARNING CAPACITY IN EXCESS OF THE TWO PERCENT ANATOMICAL RATING.

No other issues were presented.

Appellant argues under Issue I that claimant was entitled to additional temporary total benefits. This argument constitutes a separate issue and is improperly raised. Fla.R.App.P. 9.210(b).

The issue as to appellant’s entitlement to permanent disability benefits was placed in controversy by the appellant’s claim, the notice of hearing and the transcribed stipulation of the parties.

Appellant’s contention under Issue II is without merit.

There being no error,

The Order is AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: NESBITT, Judge.

text:
    Morris WRIGHT, Joseph Garcia, Gerald Abreu, Jr. and Danny Sellers, as the Career Service Council of Monroe County, Fla. and Debra Fowler, Intervenor, Appellants, v. Honorable Harry F. KNIGHT, Monroe County Tax Collector, Appellee.
    No. 79-693.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Weinsoff & Weinsoff and Robert D. Klausner, Miami, for appellants.
    Hogg, Allen, Ryce, Norton & Blue and M. Susan Potter, Tampa, for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

Appellants, collectively, seek reversal of a final judgment granting a writ of prohibition enjoining them, as the Monroe County Career Service Council, from entertaining an employee grievance lodged with them by appellant, Debra Fowler, against the appel-lee, The Honorable Harry F. Knight, Monroe County Tax Collector. The trial court granted the writ of prohibition upon its determination that Debra Fowler was a “deputy” tax collector as a matter of law and thus was not amenable to the jurisdiction of the Monroe County Career Service Council, established by Chapter 69-1321, Special Acts, Laws of Florida, as amended.

The parties agree the determinative question is whether Debra Fowler is a “deputy” tax collector. If she is, then, as a public officer, she is not amenable to the jurisdiction of the Council. Our inquiry is to determine whether the office of deputy tax collector exists in Monroe County or whether the Monroe County Tax Collector has the power to appoint or delegate the power of his office.

We determine that Debra Fowler is not a deputy and therefore do not discuss appellants’ alternative argument that she would nonetheless be amenable to the jurisdiction of the Council under the reasoning of Ison v. Zimmerman, 372 So.2d 431 (Fla.1979).

We begin with the definition of a deputy. In Blackburn v. Brorein, 70 So.2d 293 (Fla.1954), the Supreme Court, in discussing the office of a deputy sheriff, stated:

A deputy is a person appointed to act for another and he may do anything that his principal may do. A deputy is a substitute for another and is empowered to act for him in his name and behalf in all matters in which the principal may act. The principal is responsible for the acts of his deputy and the authority of the deputy ceases upon the latter’s death or disqualification.

70 So.2d at 296.

The trial court relied principally on Section 197.086, Florida Statutes (1977) and Section 320.04(2), Florida Statutes (1977) for its determination that Debra Fowler was á deputy tax collector as a matter of law.

Section 197.086 authorizes a tax collector or his deputy to levy, seize or sell personal property of a delinquent taxpayer under a tax warrant. The legislative history of this aspect of a tax collector’s function discloses a legislative retrenchment of a tax collector’s authority to deputize. Chapter 69-55, Laws of Florida, expressly repealed Section 193.46 of the Florida Statutes (1967). This defunct statute formerly authorized such actions as follows:

Tax collectors may appoint a deputy or several deputies to levy upon, and seize personal property for unpaid taxes, and a written appointment from the tax collector, , . . shall be sufficient warrant and authority for such deputy to act,

Section 320.04(2) prohibits tax collectors, deputies or other employees from receiving compensation while acting as a notary public in the sale of license tags or titles. These two statutes are the only authority to which we are referred as a basis for- the Monroe County Tax Collector to appoint a deputy.

While the functions enumerated in those statutes are important, they do not embrace all of the responsibilities or duties of a tax collector. The office and function of a tax collector is far more expansive. The existence of deputy tax collectors by implication from the two cited statutes is too tenuous a basis to support the conclusion that the Legislature has either created the office or authorized the appointment or delegation of the power to the office. The authority of a public official to delegate the power of his office is clearly circumscribed by the decision of State v. Inter-American Center Authority, 84 So.2d 9, 13-14 (Fla.1955) where the Supreme Court stated: “We are familiar with the rule that in the absence of statutory authority, a public officer can not delegate his powers, even with the approval of the court.”

Appellees rely heavily upon Blackburn v. Brorein, 70 So.2d at 296, for the proposition that: “[statutory authority is not necessary to enable a public official to appoint sufficient deputies to perform the duties of his office.” We do not doubt the accuracy of that statement provided that the office of deputy is in existence. That was the case in Blackburn v. Brorein, supra, and in Murphy v. Mack, 358 So.2d 822 (Fla.1978) where our Supreme Court recognized that the office of under or deputy sheriff existed at common law. Equally important to those decisions is that the office of deputy sheriff exists by express statutory authority. Section 30.07, Florida Statutes (1977), which is declaratory of the common law, expressly authorizes the respective sheriffs to appoint deputies who share “the same power as the sheriff appointing them.” Apparently, the office of deputy tax collector did not exist at the common law.

The tax collector is an elected constitutional officer under Article VIII, Section 1(d) of the Florida Constitution (1968). The Constitution makes no reference to the office of deputy tax collector or authority of the tax collector to appoint and delegate the power of his office.

The authority to deputize is a significant act.' A deputy may exercise all the power of his principal. In the case of an elected public officer, this involves delegation of the power of the office which has been vested in him by the voters. ■ Our study of the Supreme Court decisions instructs that a public officer may not delegate his authority in this manner without express legislative authority.

The trial court was properly concerned with the tax collector possessing sufficient authority to employ qualified personnel to assist him in the performance of his duties. We do not consider there to be any impediment in that regard. 63 Am.Jur.2d Public Officers and Employees § 483 (1972) states:

Among the principal aides to public officers are deputies and assistants. The two are by no means the same or equivalent, and the two words are not legally synonymous. An assistant is one who aids, helps, or assists while a deputy is a person appointed to act for another, a substitute or delegate who acts officially for his principal.

We conclude the office of deputy tax collector does not exist in Monroe County nor does the tax collector there enjoy the power to appoint and delegate the authority of his office.

The judgment of prohibition is reversed with directions to dismiss the petition.


text:
    Robert CUEVAS, Appellant, v. Mary Ellen CUEVAS, Appellee.
    No. 79-771.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Byrd V. Duke, Jr., North Miami, for appellant.
    Alfonso C. Sepe and Alan R. Soven, Miami, for appellee.

      Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The husband appeals a final judgment of dissolution which awarded the wife: (1) $100 per week as permanent alimony; (2) fee simple title to a home in Highlands County, owned by the parties as tenants by the entirety, and real estate in the State of Georgia, titled solely in the name of the husband; additionally, the court expressly reserved jurisdiction for the purpose of determining and awarding attorney’s fees to the wife’s counsel. The husband contends here that the record does not demonstrate the wife’s need for permanent periodic alimony nor attorney’s fees and further the court abused its discretion in making an equitable distribution of property acquired during the marriage. We disagree and affirm.

The parties were married in 1962, There were no children born of the marriage but the wife, at the insistence of the husband, became a homemaker to rear her two children by a previous marriage. The parties resided in a home, located in Dade County, which had been purchased by the husband prior to the marriage, which was not affected by the final judgment. In 1975, the parties separated but later effectuated a reconciliation which failed in 1976. Thereafter, in 1978, the husband filed a petition for dissolution which was met by the wife’s counter-petition for dissolution.

The wife was employed in 1977, after the separation, as a barmaid and admitted earnings of $3,200 plus tips. Her earning capacity is limited due to a lack of skills and her present physical condition which prevents her from standing on her feet for long intervals. She has spent most of her years as a homemaker and is now in her fifties. She has no separate property, assets or savings. Her expenses for the bare necessities, food and lodging, exceed $200 per month. Since the time of the separation, she has lived without any assistance from her husband on her meager earnings and with some assistance from her daughter. Her husband is a co-owner of a cabinet manufacturing company which has a gross aggregate value of approximately $300,000, from which he realizes a net take-home salary of $290 per week. In the two years prior to final hearing, he received an additional bonus of $1,200 per annum.

Considering the needs of the wife, the financial ability of the husband and other relative circumstances, we find no error in the award of $100 per week permanent alimony to the wife. McDonald v. McDonald, 368 So.2d 1283 (Fla.1979); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

That part of the judgment which awarded the husband’s joint interest in the Highlands County home and his sole interest in the Georgia real property to his wife does not disclose thé theory upon which it was made. It is fairly inferable from the record, however, that the trial judge awarded the husband’s interest as lump sum alimony to ensure an equitable distribution of property acquired during the marriage. This was proper in that the wife had no separate property, assets or savings of her own and the husband had the ability to make such a conveyance without substantially endangering his economic status. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The reservation of jurisdiction to determine and award counsel fees to the wife was within the trial court’s discretion because the wife did not have complete ability to pay her attorney. Cummings v. Cummings, 330 So.2d 134 (Fla.1976) and Canakaris v. Canakaris, supra.

Affirmed.


author: PER CURIAM.

text:
    Richard HERVIS and Peninsular Fire Insurance Company, Petitioners, v. Rogelio VALDEZ and Maria Valdez, his wife, Respondents.
    No. 79-2329.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    George & Thompson and Charles K. George, Miami, for petitioners.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard H. Butts, Hialeah, for respondents.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

By petition for writ of certiorari, Richard Hervis and Peninsular Fire Insurance Company seek review of an order denying their motion for leave to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses and petition for rehearing.

Richard Hervis was insured under a liability policy issued by Peninsular Fire Insurance Company. Plaintiffs Rogelio Valdez and his wife instituted a negligence action against Hervis and his liability insurer Peninsular. Although Peninsular was served through the Insurance Commissioner, Hervis himself was never served personally or by substitute service of process. Counsel for Peninsular filed a motion to dismiss on behalf of Peninsular and also filed an answer and counterclaim on behalf of Hervis (without his knowledge). Thereafter, Hervis was noticed for deposition and he did not appear. Upon the motion of Valdez the court entered an order directing Hervis to sit for deposition and further stated that if he failed to appear, the court would strike his defenses upon application by Valdez. Hervis was again noticed for deposition but the. subpoena for deposition was not served upon him. He failed to appear and the court entered an order striking the defenses of Hervis and Peninsular and granting a default as to liability. Counsel for Peninsular filed a petition for rehearing and a subsequent motion for leave to withdraw answer and counterclaim and set aside the order striking defenses. In support of the motion, counsel for Peninsular argued that he had filed the answer and counterclaim on behalf of Hervis upon the mistaken belief that Hervis had been served with process; he had been retained by Peninsular, not Hervis personally, to afford him a defense and, finally, Hervis had not authorized him to appear on his behalf. After a hearing, the trial court entered the order herein under review denying motion for leave to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike and petition for rehearing.

Disposition of this appeal is controlled by the following finding in St. Lucie Estates Inc. v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 212, 133 So. 841, 844. (1930):

“The defendant not having been served, the appearance was at best only a voluntary appearance, and it could not be voluntary without the knowledge or authority of the defendant.”

Similarly, in the case at bar, Hervis was not served and the representation by counsel for Peninsular could not be considered voluntary as such appearance on his behalf was without the knowledge or authority of Hervis. We, therefore, conclude that the trial court erred in denying the motion to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses. Accordingly, the order denying motion to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses is quashed and the cause remanded to the trial court with directions to grant the motion.

Certiorari granted.

      . Service was returned because Hervis could not be located at the address listed on the summons.


text:
    STATE of Florida, Appellant, v. Lawrence Allen SAVARINO, Appellee.
    No. 79-1286.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

The state appeals from an order of the trial court which granted the defendant’s’ motion to dismiss an information charging him with possession of dilaudid (a controlled substance) in violation of Section 893.13(1)(e), Florida Statutes (1977). Because this appeal comes from a pretrial dismissal pursuant to Florida Rules of Criminal Procedure 3.190(c)(4) and not from a jury verdict, the sole question before us is whether the state’s traverse was sufficient to place a material issue of fact into' dispute or to demonstrate that the uncontroverted facts do establish a prima facie case of guilt. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). We hold that the state’s traverse was sufficient and we therefore reverse.

In the defendant’s motion to dismiss it was alleged that the defendant was arrested while driving a motor vehicle which was owned by an individual other than the defendant. It was further alleged that the controlled substance was not in defendant’s physical'possession but rather was found on the floorboard of the passenger’s side of the vehicle. The defendant submits that these facts do not show a prima facie case of guilt. In its traverse, the state admitted the facts alleged by the defendant but added the additional facts that the defendant had failed certain field sobriety tests, had a breathalyzer reading of .00, and had to enter the car on the passenger’s side because the driver’s door was inoperable.

We hold that this was sufficient to overcome the motion to dismiss by the defendant. We stress, however, that we are only holding that the motion to dismiss should have been denied. • The state conceded here that the vehicle was not in the exclusive possession of the defendant. At trial the state has the burden of proving the defendant’s constructive possession of the controlled substance. In such a case, this must be done by proof of the defendant’s knowledge of the presence of the controlled substance and his ability to reduce it to his control. . Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965); Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973); Medlin v. State, 279 So.2d 41 (Fla. 4th DCA 1973). As we view the facts of the case thus far alleged, the state will attempt to prove its case through circumstantial evidence. Such circumstantial evidence produced by the state must refute all reasonable hypotheses of innocence. Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975). Whether the state can meet this burden is a question which must be decided at the conclusion of the state’s presentation of the evidence. It may well be that the state will not meet this burden, and a directed verdict in favor of the defendant would then be proper. At this juncture, however, the granting of the motion to dismiss was error.

The order granting the motion to dismiss is reversed and the case is remanded for further proceedings consistent with what we have said.

BOARDMAN', A. C. J., and DANAHY, J., and ULMER, RAY E., Jr., Associate Judge, concur.


author: RYDER, Judge.

text:
    In re the ESTATE OF Bertha L. WILLIAMS, Deceased.
    No. 79-1809.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.

      J. Michael Rooney, of Safron & Rooney, Punta Gorda, for appellant Eddie Cooper.
    Richard E. Mandell, of Wotitzky, Wotitz-ky, Johnson, Mandell & Batsel, Punta Gor-da, for appellant Leroy Whitley.
   RYDER, Judge.

The personal representative of the estate of Bertha. L. Williams appeals from the lower court’s denial of a motion to strike the claim of a creditor contending the trial court erred when it held funeral expenses herein were not subject to the nonclaim statute. We disagree with the personal representative’s argument, and affirm the decision of the trial court.

Bertha L. Williams died and her estate was probated in Charlotte County, Florida. Notice of administration was properly published, and the last day for filing claims under Section 733.702(1)(a), Florida Statutes (1977), was February 18, 1978. Leroy Whitley, however, filed a statement of claim for funeral expenses on August 14, 1978. The personal representative made a motion to strike the claim of Whitley, which was denied by the trial court.

The thrust of the personal representative’s argument is that there is an inherent conflict between Section 733.702(1)(a) and Section 731.201(4), Florida Statutes (1977). The personal representative seeks to have this court interpret those two sections in a manner which would require the filing of claim for funeral expenses within three months of the time of the first publication of the notice of administration. We decline to accept this interpretation.

Section 733.702(l)(a) provides:

No claim or demand against the decedent’s estate that arose before the death of the decedent . . . shall be binding on the estate . . . unless presented . . . [wjithin 3 months from the time of the first publication of the notice of administration [emphasis added]

While it is true that Section 731.201(4) defines claims as including funeral expenses, this section should not control. Section 731.201(4) is a general definitional section which is not determinative of the present controversy in view of the more specific provisions contained in Section 733.-702(1)(a). The latter statute clearly limits its operation to claims which arose before the death of the decedent. While in some instances certain funeral expenses might possibly arise before the death of the decedent and thus be subject to Section 733.-702(1)(a), the more common situation is that reflected on the present appeal where the funeral expenses were incurred subsequent to the death of the decedent. Twomey v. Clausohm, 234 So.2d 338 (Fla.1970), is not applicable to the present appeal since it was based upon the 1965 version of the nonclaim statute which was not limited to claims or demands arising before the death of the decedent.

Since the more specific provisions of Section 733.702(1)(a) control the present appeal, the trial court properly denied the motion to strike the claim of Whitley for funeral expenses.

AFFIRMED.

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