author: PER CURIAM. BOYD, Justice,

text:
    Hayward LANE, Appellant, v. STATE of Florida, Appellee.
    No. 52176.
    Supreme Court of Florida.
    Sept. 25, 1980.

      Virgil Q. Mayo, Public Defender, and H. Guy Green, Asst. Public Defender, Marian-na, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant, Hayward Lane, was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction.

For the reasons expressed, we find we must set aside this conviction and sentence because competency of the appellant at the time of trial was not properly determined under the standards set by the United States Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and prior cases.

We have further considered the issue of whether the State of Florida has territorial jurisdiction to try the appellant for first-degree murder. We find jurisdiction does exist because essential elements of the offense may be able to be established beyond a reasonable doubt in Florida even though the fatal blow and the victim’s death occurred in Alabama. We find that upon being determined competent, the appellant may be tried in the State of Florida.

The following are the relevant facts necessary to determine the controlling issues in this cause. On June 17,1975, the appellant, a resident of the State of Alabama, drove to Holmes County, Florida, which borders on Alabama, to discuss the purchase of a car engine at Odie Slay’s junkyard. At the junkyard appellant talked with Earl Slay who was awaiting his brother Odie’s return. After Odie’s arrival, he and appellant discussed their business. Appellant drove off in his car while Odie’s brother, Earl, stayed to talk for another thirty minutes. The next morning Earl’s dead body was discovered lying aside a bridge in nearby southern Alabama. Appellant was taken into custody on June 18, 1975, the day after the offense was committed. He waived extradition to Florida, made a confession, and accompanied state investigators to the scene of the crime to retrace the route he had taken when he killed the victim, Earl Slay. Appellant showed an investigator the dirt road in Florida where he stopped the victim, Earl Slay, and stated he there ordered the victim to hand over his wallet. The confession of the appellant reflects that at this point he hit the victim over the head after which the victim ran into an adjacent soybean field. The appellant followed the victim and hit him several more times, and carried him to the trunk of his car. The confession of the appellant concludes that he drove to the bridge in Alabama, got the victim out of the trunk, and beat him again.

The physical facts establish that an investigation of the Holmes County, Florida, dirt road revealed nothing to indicate that the blow was struck there although there was evidence of bloodstains in an adjacent soybean field. The physical facts at the Alabama bridge reflect that there were two sets of footprints for two different persons, and that there was blood on the vegetation and a substantial amount of blood under the body of the victim. A toxicologist who investigated the death and performed an autopsy on the body testified that the victim died at the site in Alabama and that there were three possible independent causes of death, including (1) the severing of the left maxillary artery, (2) an intercranial hemorrhage, and (3) a ruptured liver. There was considerable blood beneath the body at the death site in Alabama, which is consistent with the severing of the artery at that location. An expert witness who examined the trunk of appellant’s car found bloodstains inside but testified that the amount of blood found in the trunk would have had to be only from a superficial cut and not a major wound. Further, a witness testified it would take twenty-five to thirty-five minutes driving time from the location where the victim was first struck in Florida to the bridge site in southern Alabama where his body was found.

On June 25, 1975, eight days after the offense, counsel filed a suggestion of insanity. The two doctors appointed by the court reached opposite conclusions from their respective examinations; one found the appellant was competent, and the other found that he was not competent to stand trial. The court ordered a third examination by another physician who concluded that the appellant was not competent to stand trial. On December 16,1975, six months after the offense, the court determined the appellant was not mentally competent to stand trial and committed him to the Division of Mental Health. On July 8, 1976, a competency hearing was held and it was determined after the court received medical testimony from a Florida State Hospital psychiatrist that the appellant was competent to stand trial and able to assist counsel in the preparation of his defense. Subsequent motions suggesting insanity were filed on July 28, 1976, and March 18, 1977. On April 22, 1977, the trial court held a hearing to consider appellant’s motion for continuance on the assertion by appellant’s counsel that:

[Reasonable grounds do exist that the defendant may be insane at this time. And because of the physical nature and seriousness of this charge it asks the Court to continue the trial . . . and further to set a hearing pursuant to Rule 3.210, Florida Rules of Criminal Procedure, and determine the sanity at the time of trial.

At the hearing on the motion, the appellant presented a psychiatrist and a psychologist who testified that neither could determine whether the appellant was competent to stand trial and suggested that the appellant needed to be examined at Florida State Hospital for ten days to two weeks in order to determine competence. The psychiatrist further testified that he could not make a recommendation as to whether the appellant could assist counsel in the preparation of his defense.

The state presented the testimony of a state psychiatrist who approximately nine months previously had examined the appellant at Florida State Hospital and had found him competent. The state psychiatrist testified that she had examined the appellant on the day of the hearing but that she did not try to ascertain at that time whether the appellant knew and understood the events that were transpiring. She further opined that on or about July 7, 1976, when he left the hospital, the appellant did have the ability to assist counsel in his defense and understand the nature of the charges, but on the date of the hearing stated: “It’s hard to tell, really, on the basis of this brief meeting with him, I think that-I hate to speculate-I would not express any definite opinion.” She related that the appellant was depressed but in contact with reality; however, she did not “want to make any firm statements on my today’s observation.”

The record reflects that the appellant has an intelligence quotient of 56, which places him in a retarded classification. There was also testimony of a jailer that the appellant had refused to take his medication.

The trial court denied the motion for continuance, holding that: “[T]his defendant is now malingering and that there’s no reason why he cannot participate with his counsel in the defense of this case and I’m going to require that this case go to trial Monday morning as scheduled.”

The trial commenced as ordered by the trial judge. The jury found the appellant guilty of first-degree murder and recommended the imposition of the death sentence. During the sentencing phase of these proceedings, three psychiatrists testified and although there was evidence of mental disorder, all three agreed that the appellant knew right from wrong at the time of the commission of the crime. The trial judge followed the recommendation of the jury and imposed the death sentence. Competency to Stand Trial

The law in this area has been established by a series of cases of both the United States Supreme Court, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and this Court in Jones v. State, 362 So.2d 1334 (Fla.1978), and Fowler v. State, 255 So.2d 513 (Fla.1971). We implemented the constitutional mandate in Dusky in our Rule of Criminal Procedure 3.210.

The United States Supreme Court in Dusky restated the historical rule that a person accused of a crime who is incompetent to stand trial shall not be proceeded against while he is incompetent. The law is now clear that the trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency set forth in Dusky. The United States Supreme Court reiterated this directive in Drope and said:

The import of our decision in Pate v. Robinson is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. .
Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.

420 U.S. at 180-181, 95 S.Ct. at 908.

This requirement for a competency hearing was addressed by us in Fowler v. State, where we held that it is obligatory on the trial court to fix a time for a competency hearing if there are reasonable grounds to believe that the defendant is not competent to stand trial.

The trial court at a hearing to determine competency to stand trial must apply the Dusky test which requires a determination of (1) whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and (2) whether he has a rational as well as a factual understanding of the proceedings against him. We adopted this competency test almost verbatim in our Rule of Criminal Procedure 3.210(a)(1). It should also be recognized that Dusky held that it was not sufficient for a trial judge to find that “the defendant is oriented to time and place and has some recollection of events.” 362 U.S. at 402, 80 S.Ct. at 789.

In the instant case none of the three medical experts who testified at the continuance hearing were able to say that the appellant was competent to stand trial. The state urges that the appellant had previously been found competent, and that even if he was incompetent it was by his own actions. The finding of competence to stand trial made nine months prior to the hearing does not control in view of the evidence of possible incompetency presented by the experts at the hearing on the motion for continuance. In Bishop v. United States, 223 F.2d 582 (D.C.Cir.1955), reversed, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), the facts in the lower court opinion reflected that the defendant had no mental disorder a month prior to the trial. The United States Supreme Court reversed, requiring the trial court to have a hearing on the sanity of the defendant at the time of trial. Further, the issue of competency to stand trial clearly can be raised at any time, including during the trial proceedings. In Drope, the defendant shot himself in the foot during the course of the trial. Although the state asserted that this conduct was intentionally done to avoid trial, the court held that such conduct contributed to the need for a competency hearing. What activates the need for a competency hearing is some type of irrational behavior or evidence of mental illness that would raise a doubt as to the defendant’s present competence. See also Bell v. State, 318 So.2d 498 (Fla. 2d DCA 1975), and Harrell v. State, 296 So.2d 585 (Fla. 1st DCA 1974).

We are not unmindful of the problem raised by the trial court and the state that a defendant could directly cause his incompetency by intentionally failing to take the proper medication for his mental condition. We answered the reverse of that issue in Mines v. State, 390 So.2d 332 (Fla.1980), in which the defendant contended the trial court erroneously found him competent to stand trial because such finding was made while the appellant was being administered psychocoptic drugs to control his mental condition. We held that the appellant clearly had the ability to understand the proceedings and to assist counsel in his defense and the “fact that appellant’s competency is the result of approved medical treatment and medical science does not invalidate that finding of competency.” We rejected the argument that the appellant was “only chemically competent.”

We reject the state’s contention that if Lane is incompetent, it is only through his own actions and the cycle will surely repeat itself. Intentional action by a defendant does not avoid or eliminate the necessity of applying the test of whether a defendant has the sufficient present ability to assist counsel with his defense and to understand the proceedings against him. The record is clear in this case that there was doubt concerning the appellant’s present competency at the time of trial. We find the law required further examination and hearing in this cause. Under the circumstances, we find that the judgment entered must be vacated.

Jurisdiction

The factual situation in this cause presents a legal issue which has been discussed by courts for centuries. The instant offense was commenced in the State of Florida and concluded in the State of Alabama where the victim died. The appellant contends that the State of Florida has no jurisdiction to charge or try with first-degree murder because neither the death occurred in the State of Florida nor was it established that the fatal blows were struck in the State of Florida. The state not only concedes its inability to establish beyond a reasonable doubt that the fatal blow was struck in the State of Florida, but its evidence indicates that the fatal blow or blows were probably struck in the State of Alabama. The state, however, contends that if an offense is commenced in Florida and consummated outside the state, Florida retains jurisdiction to try this defendant for first-degree murder under the provisions of sections 910.005 and 910.01, Florida Statutes (1977). We find the legislature of the State of Florida by the provisions of section 910.-005(2) grants Florida jurisdiction to try this appellant for first-degree murder.

Venue should not be confused with jurisdiction although some of the original common law cases appear to concern venue issues. Venue cases are inapplicable to the instant case. It is for that reason that section 910.01 is not applicable since its purpose is to establish venue and not jurisdiction.

Jurisdiction is the very power of the state to exert the influence of its courts over a criminal defendant, and it cannot be waived. Venue on the other hand is merely a privilege which may be waived or changed under certain circumstances. We agree with the distinction drawn between venue and jurisdiction that was outlined by the Supreme Court of Maine in State v. Baldwin, 305 A.2d 555, 558 (Me.1973):

We see a vast difference in the policy considerations governing the adoption of a rule as to venue and the adoption of a rule as to territorial jurisdiction.
When a crime is committed in the State of Maine, the State of Maine has sovereign power and a duty to assert its jurisdiction through the power of its courts to prosecute the perpetrators of such crime.
The sovereign power of the State exists whether the venue is properly laid in one county or another so long as the appropriate venue is within the territorial jurisdiction of the State.

See also Annot., 67 A.L.R.3d 988 (1975).

The issue in this cause is the jurisdictional authority of the State of Florida to proceed to try this appellant. The general rule developed from the common law and expressed in most statutes in this country is that a homicide is committed in the state where the fatal wound or blow was inflicted though the deceased died in another state. See 40 Am.Jur.2d, Homicide § 198 (1968); 3 Warren on Homicide § 298 (1938); 4 Wharton’s Criminal Law and Procedure § 1507 (1957). The common law rule is best expressed in 1 M. Hale, Pleas of the Crown 426 (1736), which states:

At common law, if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either, but the more common opinion was, that he might be indicted, where the stroke was given, for the death is but a consequent, and might be found tho in another county, 9 E. 4. 48. 7 H.7.8. and if the party died in another county, the body was removed into the county, where the stroke was given, for the coroner to take an inquest super vi-sum corporis, 6 H.7.10. but now by the statute of 2 & 3 E.6. cap. 24. the justices or coroner of the county, where the party died, shall inquire and proceed, as if the stroke had been in the same county, where the party died.

The reason and necessity for this common law rule was that early juries were not selected merely to hear evidence and pass upon it; they were witnesses in their own communities as well as the triers of the fact and were supposed to act on knowledge derived from their presence in the community. The rule came into being because if a fatal blow was given in one county and death happened in another, the homicide could not be within the knowledge of the jurors of either county. The result was that a defendant could not be tried in either county. This problem was settled by carrying the dead body into the county where the wound was given so that death could be shown by view, and the offense might be tried in the county where the blow was struck. See Tyler v. People, 8 Mich. 320, 335 (1860) (Campbell, J., dissenting). At common law, the trial always had to occur in the county where the mortal blow was given because in the English terminology “for that alone is the act of the party, and the death is but a consequence . . . . ” IE. East, Pleas of the Crown 361 (1803). See generally People v. Duffield, 387 Mich. 300, 197 N.W.2d 25 (1972); Annot., 67 A.L.R.3d 988 (1975).

By section 910.005, we have broadened our jurisdiction to allow the trial of the homicide offense when the death occurs in the state or when an essential element of the homicide occurs in Florida even though the fatal blow was struck outside the state. The applicable provisions of section 910.005 provide:

(1) A person is subject to prosecution in this state for an offense that he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:
(a) The offense is committed wholly or partly within the state;
(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state. In homicide, the “result” is either the physical contact that causes death, or the death itself; and if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state. [Emphasis added.]

Subsection (2) in its first sentence allows Florida jurisdiction over offenses committed partly within the state when conduct that is an element of the offense occurs within the state, or the “result” that is an element occurs within the state. As to the second, when homicide is the offense, the “result” may be either the physical contact or blow that causes the death or the fact that the death itself occurs in Florida.

The appellant in this cause was charged with having, in Holmes or Walton County, Florida, “did unlawfully from a premeditated design to effect the death of Earl D. “Bud” Slay or while the said Hayward Lane was in perpetration of or in the attempt to perpetrate a robbery, the said Hayward Lane did kill the said Earl D. “Bud” Slay by striking or beating him with a tire tool or other dull instrument.” One of the essential elements of this offense is the premeditated design of the appellant to effect the death of the victim or, in the alternative, the perpetration of or an attempt to perpetrate a robbery upon the victim. It is our view that if either of these alternative essential elements of the offense occurred within the State of Florida, then Florida has jurisdiction to try the appellant.

A person who commits a crime partly in one state and partly in another state may be tried in either state under the sixth amendment of the United States Constitution. We agree with the Supreme Court of Vermont which stated in State v. Harrington, 128 Vt. 242, 250, 260 A.2d 692, 697 (1969):

It is not essential to criminal responsibility that the accused do every act necessary to accomplish the crime within the jurisdiction where he is prosecuted. ... Where the crime is composed of an interstate series of acts, it is jurisdictionally competent -for a state to attach legal consequences to any overt act committed within its boundaries, even though the final impact and injury may occur elsewhere. [Citations omitted.]

This principle is more appropriate today than it ever was in view of the increased transient nature of our society. We recognize that this holding grants to the State of Florida broader jurisdiction than many of our other sister states, but we find it is allowed by the United States Constitution and has been directed by the legislature of this state. This broader jurisdiction nonetheless requires that the prosecution establish beyond a reasonable doubt that essential elements of the offense were committed within the jurisdiction of the State of Florida. In the instant case that would mean establishing either that the premeditation to murder the victim was formulated in the State of Florida or that the underlying felony, in this case the robbery, occurred in the State of Florida.

Under the instant circumstances, our holding that Florida has jurisdiction to try the appellant is supported by the decision of the Supreme Court of Indiana in Conrad v. Indiana, 262 Ind. 446, 317 N.E.2d 789 (1974). In Conrad the formulation in Indiana of the premeditated design to effect the death of a victim coupled with a continuous course of action commenced in Indiana to carry out that purpose was held sufficient to give Indiana jurisdiction even though the fatal blows and death of the victim occurred in the State of Ohio.

It is important to recognize that this territorial jurisdictional issue is a factual determination which is within the province of the jury to resolve under appropriate instructions. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In Conrad the court presented the jury with instructions which, although adequate, were not a model of clarity.

We agree with the weight of authority that this territorial jurisdictional issue must be proved beyond a reasonable doubt. See Annot., 67 A.L.R.3d 988 (1975). A minority view holds that territorial jurisdiction must only be proved by a preponderance of the evidence. See Cauley v. United States, 355 F.2d 175 (5th Cir. 1966); People v. Cavanaugh, 44 Cal.2d 252, 282 P.2d 53 (1955).

Given the facts in this cause, we find that the jury instructions were too general. Upon any retrial of this cause, specific instructions must be given which require the jury to find beyond a reasonable doubt that either: (1) the fatal blow to the victim occurred in Florida, (2) the death of the victim occurred in Florida, or (3) an essential element of the offense which was part of one continuous plan, design and intent leading to the eventual death of the victim occurred in Florida.

Although the United States Supreme Court has not directly addressed the issue of double jeopardy in this type of interstate offense, we believe under the separate sovereignty doctrine set forth in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), that either or both the sovereign State of Alabama and the sovereign State of Florida could try the appellant under the circumstances of this cause.

The only other issue material to a retrial concerns the appellant’s confession. From the evidence in this record which includes the tape recording of the confession, we find no error in the trial court’s finding of voluntariness.

For the reasons expressed in this opinion, we vacate the judgment and sentence. Upon his being found competent to stand trial, we find that the appellant may be retried in the State of Florida for first-degree murder in accordance with the jurisdictional guidelines set forth herein.

It is so ordered.

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

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur with that portion of the Court’s opinion holding that the State of Florida has territorial jurisdiction of the crime charged and proven in this case.

I dissent from that portion of the opinion that determines that the appellant’s conviction must be reversed. The trial court substantially complied with Florida Rule of Criminal Procedure 3.210(a)(1) when, at the hearing on the motion for continuance, it heard presentations from both sides on the issue of the appellant’s competence to stand trial.

Based on all of the evidence presented at that hearing, the court found the appellant competent and ruled that the case would proceed to trial. The record shows that there was sufficient legal basis for this determination. Therefore, we should not disturb the judge’s ruling.

I would affirm the conviction. Furthermore, since the death penalty is by law appropriate to this case, I would also affirm the sentence of death.

      . Art. V, § 3(b)(1), Fla.Const.

      . The jury in Conrad was given the following instruction:
      [I]f you find from the evidence that the killing of [the victim] . .. occurred in the State of Ohio, but that the killing was not a part of a common plan, design, and intent to kidnap and kill [the victim] .. . which originated in Wayne County, Indiana, and was not part of one continuous course of action by the defendant which originated and commenced in Wayne County, Indiana, but that the intent to kill was arrived at and the fatal blow struck in the State of Ohio and that such intent and action originated there and after the commission of the offense of kidnapping in the State of Indiana and that the same was not part of one continuous plan, design and intent, and not the result of one continuous course of action by the defendant, but was a separate and independent set of acts occurring outside of the State of Indiana, then the State of Indiana would have no jurisdiction to prosecute the defendant for the offense of murder ....
      [Emphasis deleted.]
      262 Ind. at 450, 317 N.E.2d at 791.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Robert Ike COMBS, Appellee.
    No. 57628.
    Supreme Court of Florida.
    Sept. 25, 1980.

      Jim Smith, Atty. Gen., and William I. Munsey, Jr., and G. P. Waldbart, Asst. At-tys. Gen., Tampa, for appellant.
    Douglas M. Midgley, Public Defender, and Gordon R. Duncan, Asst. Public Defender of the Twentieth Judicial Circuit, Fort Myers, and Jack 0. Johnson, Public Defender of the Tenth Judicial Circuit, Bar-tow, for appellee.
   ADKINS, Justice.

The State brings this appeal from an order of the Circuit Court of the Twentieth Judicial Circuit in and for Lee County dismissing an indictment on the grounds that the statute on which it was based was unconstitutional. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

Count II of the indictment in this case charged appellee, hereinafter defendant, with attempted first degree murder, section 777.04 Florida Statutes (1977). Section 777.04 is entitled “Attempts, solicitation, conspiracy, generally.” The first three subsections define the crimes and the fourth provides the appropriate punishment. The defendant successfully argued to the trial court that the statute violates the single subject requirement of article III, section 6 of the Florida Constitution, “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

In Santos v. State, 380 So.2d 1284 (Fla. 1980), we held that “article III, section 6, does not require sections of the Florida Statutes to conform to the single subject requirement. The requirement applies to ‘laws’ in the sense of acts of the legislature.” Id. at 1285. Section 777.04 was enacted as chapter 74-383, Laws of Florida, and adopted or re-enacted in chapter 77-266, Laws of Florida. Article III, section 6 of our constitution applied only to chapter 74-383, Laws of Florida, and only so long as it remained a “law.” Once re-enacted as a portion of the Florida Statutes it was not subject to challenge under article III, section 6. There have been no subsequent pertinent amendments to justify a challenge at this point.

The order of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

      . (1) Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall, when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection (4).
      (2) Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation and shall, when no express provision is made by law for the punishment of such solicitation, be punished as provided in subsection (4).
      (3) Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense of criminal conspiracy and shall, when no express provision is made by law for the punishment of such conspiracy, be punished as provided in subsection (4).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Laniel HOWARD, Appellee.
    No. 57645.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Isaac Anderson, Jr., Fort Myers, for ap-pellee.
   PER CURIAM.

Reversed. State v. Combs, 388 So.2d 1029 (Fla.1980).

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


author: SUNDBERG, Chief Justice.

text:
    FT. PIERCE UTILITIES AUTHORITY OF the CITY OF FT. PIERCE, Gaines-ville-Alachua County Utility Board, City of Lakeland, Florida, City of Starke, Florida, City of Homestead, Florida, City of Tallahassee, Florida, Sebring Utilities Commission, New Smyrna Beach Utilities Commission, City of Kissimmee, Florida, City of Gainesville, Florida, Petitioners, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 57854.
    Supreme Court of Florida.
    Sept. 25, 1980.

      Joseph C. Jacobs, C. Everett Boyd and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and George Spiegel, Robert A. Jablon and Alan J. Roth of Spiegel & McDiarmid, Washington, D. C., for petitioner.
    Prentice P. Pruitt, Legal Director, and Joseph A. McGlothlin, Staff Counsel, Tallahassee, for respondent.
    Hugh C. Macfarlane and Ansley Watson, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Peoples Gas System Inc., intervening respondent.
   SUNDBERG, Chief Justice.

We have for review pursuant to our jurisdiction under article V, section 3(b)(3), Florida Constitution (1972), an order of the Florida Public Service Commission (Commission) approving an application of Peoples Gas System, Inc. (Peoples) to issue certain securities. The issue presented is whether the Commission is empowered to consider, in connection with an application for issuance of securities, a merger of two other corporate entities which allegedly will be made possible through the purchase of certain properties of one of those entities from the proceeds of the securities issue.

On May 24, 1979, Peoples, a public utility as defined in section 366.02, Florida Statutes (1977), applied to the Commission for authority to issue and sell (i) senior promissory notes, eleven percent, in the amount of $35,000,000, and (ii) up to 1,505,000 shares of Class B common stock (nonvoting), par value $3.33% per share, for a consideration of $10 per share. The application stated that the proceeds of the issuance would be utilized to purchase at net book value, pursuant to contract, the retail natural gas distribution properties owned by Florida Gas Company (Florida Gas).

On June 29, 1979, the Commission issued Order 8932 in which it granted to Peoples the authority sought in its application. The order concluded that the proceeds of the proposed issuance would be used for a lawful object within the legitimate corporate purposes of the applicant, and that the issuance would not impair the ability of Peoples to perform the service required of it as a public utility. The order observed that the effect of the issuance would be to replace the outstanding security instruments of Florida Gas with those bearing higher rates of interest. The Commission reserved for disposition in an appropriate ratemak-ing proceeding the issue of whether ratepayers should be required to bear the higher interest costs associated with the acquisition by Peoples. Additional language made clear the fact that the order determined only the authority of the applicant to enter into the transactions and that any other related matters arising as a result (rate-base valuation, costs, etc. in addition to the interest issues specifically described) were not passed upon by the Commission’s action but would be treated in ratemaking proceedings.

On July 16, 1979, certain municipal utilities (petitioners) filed a motion to intervene and petition for reconsideration of Order No. 8932. In the petition the municipal utilities requested the Commission to set the application of Peoples for public hearing on the issue of whether, in view of the planned merger between Florida Gas and Continental Group, Inc. (Continental), approval of the application for authority to issue securities would be in the public interest. On July 18, the municipalities requested oral argument on their motion and petition. The reply of Peoples to these pleadings was filed on July 20,1979. Oral argument was held before the Commission on August 13, 1979. On September 12, 1979, the Commission issued Order No. 9051, in which it denied the petition for reconsideration. The order essentially concluded that the Commission could not properly include as an issue in Peoples’ application for issuance of securities the desirability of the merger between Florida Gas and Continental as demanded by the petition.

By their petition for review the municipal utilities raise two issues. We state and will address them in inverse order of their presentation. First, in a utility financing application, can the Commission reserve, for a subsequent. ratemaking proceeding, issues of valuation and costs which may arise as a result of the financing? Second, in a utility financing application, is the Commission required to pass on the merger of two separate corporate entities, to which merger the applicant is not a party and over which merger the Commission otherwise has no jurisdiction, where the proceeds of the financing allegedly will make possible the merger?

Petitioners have presented no authority nor have we been able to find any statutory or case law which would require the Commission to resolve in the financing application, rather than defer to a ratemak-ing proceeding, issues pertaining to rate-base valuations and whether increased interest costs will be reflected in the rates Peoples is allowed to charge in the future. Since we find such reservation of jurisdiction by the Commission to be lawful, we reject petitioners’ argument as to the first issue.

With respect to the second issue, the authority of the Commission to regulate the issuance and sale of securities by an intrastate natural gas distribution company arises from section 366.04(1), Florida Statutes (1977), which reads in pertinent part as follows:

In addition to its existing functions, the Florida Public Service Commission shall have jurisdiction to regulate and supervise each public utility with respect to its rates, service and the issuance and sale of its securities

This jurisdiction is implemented by chapter 25-8 of the rules of the Commission, which by section 25-8.02(L) provides that an applicant for issuance of securities should show that:

[T]he issue (1) is for some lawful object within the corporate purposes of the applicant and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service; and (2) is reasonably necessary or appropriate for such purposes.

Two other propositions are uncontradict-ed. First, the Commission has no jurisdiction to regulate the acquisition by Peoples of the gas distribution system of Florida Gas. Second, the Commission has no jurisdiction to regulate the merger of Florida Gas and Continental. See ch. 366, Fla.Stat. (1977).

Petitioners assert, however, that the public interest will not be served by the merger and that the Commission is obliged to consider that issue in connection with the financing application. This obligation, they say, arises from the legislative declaration contained in section 366.01, Florida Statutes (1977):

Legislative declaration. The regulation of public utilities as defined herein is declared to be in the public interest and this chapter shall be deemed to be an exercise of the police power of the state for the protection of the public welfare and all the provisions hereof shall be liberally construed for the accomplishment of that purpose.

Petitioners maintain that the public interest would be adversely affected by the merger because among the properties of Florida Gas which will be controlled by Continental after the merger are its exploration and gas transmission subsidiaries. The transmission subsidiary, Florida Gas Transmission Company, controls the interstate pipeline that supplies natural gas to Florida. It is hypothesized that following the merger, Continental may divert gas supplies coming into the state for its own energy consuming enterprises, thereby creating a shortage of natural gas in Florida. The likelihood of this eventuality is increased, it is said, by the fact that the merged enterprise will own no gas distribution properties in Florida after the sale from Florida Gas to Peoples. Furthermore, it is suggested that new supplies developed through the exploration subsidiary of Florida Gas will be devoted to the out-of-state energy needs of Continental.

Petitioners find principal support for the authority of the Commission to interject the issue of the merger into the financing application in two United States Supreme Court decisions as well as two state decisions. In Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961), the Court sustained the Federal Power Commission denial of an application for certificate of public convenience and necessity based upon the inferior use made of gas and price considerations in certain nonregulated sales. As pointed out by respondents, however, the Federal Power Commission was entitled to consider sales over which it had no regulatory authority because of its specific statutory authority to directly regulate the transportation of natural gas in interstate commerce, which was designed to overcome by means of a comprehensive federal scheme the “gaps” inherent in regulation of transactions for the sale of natural gas at the state level. The regulatory authority asserted was direct and specifically designed to promote the public convenience and necessity.

In the only federal case dealing with an application for issuance of securities, the Federal Power Commission had refused to grant a hearing on whether proceeds of the securities issue would be used to finance or refinance activities that were anticompeti-tive in alleged violation of antitrust laws as well as the Federal Power Act and the Public Utility Holding Company Act. In Gulf States Utilities Co. v. Federal Power Commission, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973), the Supreme Court affirmed the District of Columbia Court of Appeals’ decision remanding the cause to the Federal Power .Commission for consideration of the claims raised by the protestants. Although the Federal Power Commission had held that the issues raised by the protestants were irrelevant to the purpose of issuing bonds to refund short-term indebtedness previously authorized by the Commission, the Court found otherwise. In holding the anticompetitive claim to be an appropriate issue in the financing application proceedings, the Court stated:

The mandate that § 204 of the Federal Power Act, 16 U.S.C. § 824c, imposes upon the Commission is a broad and impressive one. Section 204(a) empowers the Commission to authorize the issue of a security by a public utility only “if it finds that such issue ... is for some lawful object, within the corporate purposes of the applicant and compatible with the public interest.” This requires the Commission to inquire into and to be satisfied with the purposes of the issue and its lawfulness. And even if its “object” is lawful, the necessary inquiry is not ended, for, in addition, the object must be “compatible with the public interest.”

411 U.S. at 756, 93 S.Ct. 1876 (emphasis in original).

Petitioners maintain that the “public interest” language of section 366.01 as well as the direction that the chapter be “liberally construed” imposes upon the Commission in a financing application the same obligation as was imposed upon the Federal Power Commission under the “compatible with public interest” language of section 204 of the Federal Power Act. But even accepting this premise, respondents assert that the Gulf States Utilities case falls far short of being persuasive authority for the position advocated by petitioners. In Gulf States Utilities the object of the financing was to foster allegedly unlawful anticom-petitive practices by the regulated applicant. The object of the financing in this case is to acquire the distribution properties of Florida Gas, an object in and of itself lawful and compatible with the public interest as found by the Commission. The activity asserted by petitioners to be incompatible with the public interest is the merger of Florida Gas and Continental-an activity in which Peoples has no direct part and one which clearly is without the purview of the Commission to regulate. Hence, we must agree with the Commission that its statutory authority left it “one step removed from the ability to pass upon the merger of Continental and Florida Gas within the instant proceeding.”

The two state cases relied upon by petitioners, Alabama Power Company v. Alabama Public Service Commission, 179 So.2d 725 (Ala.1965), and Lowell Gas Light Company v. Department of Public Utilities, 319 Mass. 46, 64 N.E.2d 640 (1946), are likewise inapposite. In each of those cases the objective of the order was to regulate by direct action the applicant utility over which the agency had jurisdiction and regulatory authority. In neither case did the court approve of utilizing an agency’s jurisdiction over the financing application of one entity to influence the actions of two separate utilities over which the agency completely lacked jurisdiction.

Petitioners suggest an alternative basis for causing scrutiny of the merger transaction arising out of Peoples’ financing application. Although not well defined, as we understand it the argument appears to be that the Commission should disapprove the Peoples’ financing which will prevent the distribution properties acquisition from Florida Gas, thereby forcing the merger with Continental to take place with the distribution properties still a part of Florida Gas. Under these circumstances the merger transaction would come under the scrutiny of the Securities and Exchange Commission pursuant to the Public Utility Holding Company Act. They then assert that the public interest considerations which they espouse would be open to examination in Securities and Exchange Commission proceedings. The municipal utilities support this rather novel approach by reference to section 366.015, Florida Statutes (1977), dealing with interagency liaison. We disagree that section 366.015 has so broad a reach or embodies such public policy. To assert that section 366.015 contemplates the use of a financing application proceeding as leverage to trigger federal review of a merger transaction, over which the Commission lacks jurisdiction, is sophistic.

We are buttressed in our conclusion by the principle that administrative construction of a statute by the agency or body charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous. State ex rel. Szabo Food Service, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla. 1973). In view of the foregoing discussion we cannot say that the Commission’s interpretation of the extent of its statutory authority to regulate the issuance and sale of securities is clearly erroneous.

Accordingly, the petition for certiorari is denied.

ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Ch. 25-8, Fla.Admin. Code.

      . Section 366.015, Florida Statutes (1977):
      Interagency liaison. The Florida Public Service Commission is directed to provide for, and assume primary responsibility for, establishing and maintaining continuous liaison with all other appropriate state and federal agencies whose policy decisions and rulemaking authority affect those utilities over which the commission has primary regulatory jurisdiction. This liaison shall be conducted at the policy-making levels as well as department, division, or bureau levels. Active participation in other agencies’ public hearings is encouraged to transmit the commission’s policy positions and information requirements, in order to provide for more efficient regulation.


text:
    THE FLORIDA BAR, Complainant, v. Jason M. CHAPNICK, Respondent.
    Nos. 58114, 59164.
    Supreme Court of Florida.
    Sept. 25, 1980.
    John A. Weiss, Bar Counsel, and James P. Hollaway, Deputy Staff Counsel, The Florida Bar, Tallahassee, for complainant.
    Herbert T. Schwartz, Gainesville, for respondent.
   PER CURIAM.

These disciplinary proceedings by The Florida Bar against Jason M. Chapnick, a member of The Florida Bar, are presently before us on complaints of The Florida Bar, Report of Referee, and Conditional Guilty Plea. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petitions for review pursuant to Rule 11.09(1), Integration Rule, have been filed.

Having considered the pleadings and evidence, the referee found as follows:

Statement of Case No. 58,114
On November 19, 1979, Complaint was filed with the Court alleging that Respondent, Jason M. Chapnick, had violated Rule 11.02(4) of the Integration Rule and Disciplinary Rule 9-102(B)(4) of the Code of Professional Responsibility of The Florida Bar. The specific charge was that on April 30, 1979, in connection with “a real estate transaction”, Respondent had received $10,000.00 in trust funds. Although the transaction was closed in June and repeated demands were made on him, Respondent failed to disburse the funds. In early August, Respondent did issue a check to the party entitled to $8,798.10 of the funds, but the check was eventually returned for insufficient funds. After proceedings were instituted against Respondent, the complaining party (Charles L. Horn), on December 17,
1979, received from Respondent’s attorney a check for the $8,978.12 due the, complaining party. (There is no contention that the remaining trust funds were not properly accounted for).
Respondent filed his Answer and the case was scheduled to be tried on February 11, 1980. However, Respondent’s “Motion to Continue” was granted, and the ease was rescheduled for May 12,
1980.

On April 23,1980, a “Conditional Guilty Plea for Consent Judgment” was tendered. It was approved by the Board of Governors of The Florida Bar on May 8, 1980.

Neither party desired to offer evidence. Statement of Case No. 59,164
In Case No. 59,164, Respondent is charged with similar misconduct in that he received trust funds of $21,735.00 on June 26,1978, and failed to disburse them until March 22, 1979.

The referee accepts the plea and recommends:

(a) Respondent be found guilty of misconduct as charged, viz: failure to disburse trust funds.
(b) Respondent be disciplined by suspension from The Florida Bar for 18 months from January 11, 1980, or 12 months from the date the Court approves the “consent judgment”, whichever period is shorter, and thereafter until Respondent proves rehabilitation in reinstatement proceedings pursuant to Rule 11.11 of the Integration Rule of The Florida Bar. (It is to be noted that on December 12, 1979, the Court entered an Order of temporary suspension and Respondent has been suspended since December 12, 1979).
(c) If the plea in Case No. 58,114 is approved by the Court, The Florida Bar has agreed to dismiss Case No. 59,164.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, Respondent, Jason M. Chap-nick, is hereby suspended from the practice of law for a period of 18 months, nunc pro tunc to January 11, 1980, and thereafter until Respondent proves rehabilitation in reinstatement proceedings pursuant to Rule 11.11 of the Integration Rule of The Florida Bar. After reinstatement, Respondent is to be on probation for a period of three years. During probation, should Respondent resume the practice of law as a sole practitioner, he agrees to the examination of all of his trust account records upon one working day’s notice by staff counsel or his representative. Confidentiality of Respondent’s records shall be maintained unless the examination indicates a violation of the Integration Rule of The Florida Bar or the Code of Professional Responsibility. Case No. 59,164 is hereby dismissed.

Costs in the amount of $2,867.88 are hereby taxed against the Respondent.

It is so ordered.

SUNDBERG, C. J„ and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    Larry Leroy ADDISON, Appellant, v. STATE of Florida, Appellee.
    No. 58291.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Nelson A. Faerber, Jr., Naples, for appellant.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. State v. Combs, 388 So.2d 1029, No. 57,628 (Fla. Sept. 25,1980).

It is so ordered.

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


author: OVERTON, Justice.

text:
    John Kenneth YOLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 58326.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Donald A. Wich, Jr., of Sullivan, Rana-ghan, Bailey & Gleason, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   OVERTON, Justice.

This cause is before the Court upon an appeal to review an order upholding the constitutionality of section 316.058, renumbered and hereinafter referred to as 316.-1905, Florida Statutes (1977), concerning the testing and approval of motor vehicle speed testing equipment [radar] by the Department of Highway Safety and Motor Vehicles. We have jurisdiction and affirm. Art. V, § 3(b)(1) Fla.Const. (1972).

In the instant case, appellant was issued a traffic citation for driving fifty, subsequently amended to sixty-one, miles per hour in a thirty-five-mile-per-hour zone in violation of section 316.183, Florida Statutes (1977). The validity of this section is not an issue in this proceeding. The primary issue concerns the authority of the legislature to direct, by section 316.1905, the Department of Highway Safety and Motor Vehicles to test and approve speed testing equipment and the validity of the administrative rules adopted by the Department to implement this statutory provision.

Appellant filed a motion in limine seeking to suppress the results obtained by the citing officer through the use of an electronic speed control device. In denying this motion, the trial court held: “[W]hen read separately and when read in conjunction with the Florida Administrative Code 15B-2, et seq., ‘Speed Measuring Devices’, relating to electronic speed control devices (radar) and Florida Statutes, Chapter 316.058, renumbered 316.1905 are constitutional in all respects.” The order further stated that the rules promulgated by the Department of Highway Safety and Motor Vehicles were “adequate and complete as a matter of law,” and that such rules do not “require the complete publishing and promulgating, and in conformance with Florida Statutes 120.54, et seq., of the electronic speed control device(s) (radar) operation manual, particularly that of the type of equipment used in this case.” The case proceeded to trial, and the appellant was found guilty.

Section 316.1905 provides that any officer engaged in the enforcement of speed laws who uses an electronic or mechanical device to determine speed must use the type of equipment that has been approved by the Department of Highway Safety and Motor Vehicles. It directs that approved speed testing devices must be tested to determine if they are operating accurately and further requires a test to be conducted at least every six months. The statute further requires an operator of such speed testing equipment to be certified as competent. When an approved device is properly tested by the Department and is operated by a certified person, there is a presumption that the device is operating properly. This presumption is rebuttable by competent evidence, and the officer who operated the testing device is required to appear in court.

This statutory direction to the Department of Highway Safety and Motor Vehicles to approve and test these devices was implemented by Florida Administrative Rules 15B-2.01 — 2.12. Rule 15B-2.09 establishes the procedure for determining the speed accuracy of doppler radar devices. The testing procedures required by this rule mandate (a) an initial test and approval by an electronic technician, and (b) accuracy test every six months by a certified operator of the device with a tuning fork provided by the manufacturer. The state asserts that these requirements clearly imply that the testing of the radar unit must be in accordance with the manufacturer’s instructions. The appellant contends that the Department of Highway Safety and Motor Vehicles has failed to promulgate the necessary specific rules pertaining to the operation and calibration of said speed measuring devices or, in the alternative, the Department has failed to state the appropriate procedures or otherwise ratify the manufacturer’s operating and calibrating procedures.

This Court had before it a related argument concerning breath- and blood-testing apparatus in State v. Bender, 382 So.2d 697 (Fla.1980), in which we stated:

We further reject the trial court’s holding that the respondents’ constitutional rights of due process and equal protection were violated by the failure of the Department of Health and Rehabilitative Services and the Department of Highway Safety and Motor Vehicles to incorporate the manufacturers’ procedures for maintenance and operation as part of the promulgated rules. We note that the rules under attack require the preventive maintenance operation and preventive maintenance check to be in accordance with the procedures set forth by the manufacturer. What is attacked is the failure to attach and file those procedures with the Secretary of State. This does not constitute a due process or equal protection violation. There is no showing that these manufacturers’ operating manuals are unavailable, and the respondents clearly have the right in their individual proceedings to attack the reliability of the testing procedures or the operator’s qualifications.

Id. at 700. We reject the contention that in adopting rules the Department must expressly adopt or ratify the manufacturer’s operating manual. Once a testing device has been approved for use, it necessarily follows that it should be maintained and operated in accordance with the manufacturer’s maintenance and operating manuals. There is no showing in this record that the operating manual for the testing device used in this case was unavailable to the appellant. In fact, the operating manual is part of the record in this cause. We find the appellant was not prejudiced in any manner by the failure of the Department to incorporate the operating manuals as part of the administrative rules.

As with other scientific evidence, the appellant has the right to attack the reliability of the scientific tests or equipment and the competence of the operator. See State v. Bender. The statute in issue limits law enforcement in its use of electronic or mechanical speed testing devices to those that are approved by a single government department. We find section 316.1905, Florida Statutes (1977), and the implementing administrative rules constitutional.

The appellant further contends that the trial court erred by allowing the citing officer to amend at the time of trial the speed listed on the citation from fifty miles per hour in a thirty-five-mile zone to sixty-one miles per hour in a thirty-five-mile zone. We find that argument to be without merit, it appearing that there was no motion for a continuance and no showing how this appellant was prejudiced by the amendment in the trial of this cause.

For the reasons expressed, we affirm the order of the trial court.

It is so ordered.

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

      . 316.1905 Electrical, mechanical, or other speed calculating devices; power of arrest; evidence.
      (1) Whenever any peace officer engaged in the enforcement of the motor vehicle laws of this state uses an electronic, electrical, mechanical, or other device used to determine the speed of a motor vehicle on any highway, road, street, or other public way, such device shall be of a type approved by the department and shall have been tested to determine that it is operating accurately. Tests for this purpose shall be made not less than once each 6 months, according to procedures and at regular intervals of time prescribed by the department.
      (2) Any police officer, upon receiving information relayed to him from a fellow officer stationed on the ground or in the air operating such a device that a driver of a vehicle has violated the speed laws of this state, may arrest the driver for violation of said laws where reasonable and proper identification of the vehicle and the speed of same has been communicated to the arresting officer.
      (3)(a) A witness otherwise qualified to testify shall be competent to give testimony against an accused violator of the motor vehicle laws of this state when such testimony is derived from the use of such an electronic, electrical, mechanical, or other device used in the calculation of speed, upon showing that the speed calculating device which was used had been tested. However, the operator of any visual average speed computer device shall first be certified as a competent operator of such device by the department.
      (b) Upon the production of a certificate, signed and witnessed, showing that such device was tested within the time period specified and that such device was working properly, a presumption is established to that effect unless the contrary shall be established by competent evidence.
      (c) Any person accused pursuant to the provisions of this section shall be entitled to have the officer actually operating the device appear in court and testify upon oral or written motion.

      . 15B-2.09 Test to determine speed accuracy of doppler radar devices.
      (1) An accuracy test will be performed on doppler radar speed measuring devices before initially being put into service. The initial test shall be performed by an electronic technician who has the necessary FCC license for electronic radiolocation speed measuring devices. Results of test will be on a certificate dated, signed and witnessed.
      (2) An accuracy test after the initial test shall be made not less than once each six (6) months by any operator of the device with a tuning fork furnished by the manufacturer. Each test shall be recorded on a certificate dated and signed by the operator and a witness.


text:
    THE FLORIDA BAR, Complainant, v. Steven L. SAGRANS, Respondent.
    No. 59568.
    Supreme Court of Florida.
    Sept. 25, 1980.

      Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    David Roth, West Palm Beach, for respondent.
   PER CURIAM.

This matter is before the Court on petition for approval of conditional guilty plea to violations of Disciplinary Rule 3-102 of the Code of Professional Responsibility. We approve the petition.

The record reflects that shortly after being admitted to The Florida Bar in 1973, respondent entered into an agreement with a nonlawyer for the division of fees received from prosecution of respondent’s sister-in-law’s medical malpractice action against her former doctor. The nonlawyer was a chiropractor and was to testify in the sister-in-law’s behalf. Four years later because he did not receive his fee, the chiropractor requested The Florida Bar to assist him in collection. Respondent asserts that the chiropractor originated the idea of the malpractice action and drew up the agreement for him to sign. Respondent also claims that he never intended to charge his sister-in-law for his services and that he did not scrutinize the agreement before signing it.

Upon respondent’s conditionally pleading guilty to a violation of Disciplinary Rule 3-102, the Board of Governors voted to tender a public reprimand to respondent. Since the events giving rise to the instant petition, respondent has had no complaints filed against him and assures us that he has studied the Code of Professional Responsibility to prevent any future violations. Mindful of this, we agree with the Board and accept The Florida Bar’s recommendation that respondent, Steven L. Sagrans, be publicly reprimanded. The publication of this Order in Southern Reporter shall serve as public reprimand.

Costs in the amount of $183.25 are hereby taxed against respondent, payable within ninety days of the Court’s order.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

      . Dividing Legal Fees with a Non-Lawyer
      (A) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
      (1) An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, Over a reasonable period of time after his death, to his estate or to one or more specified persons.
      (2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.
      (3)A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
      (B) A lawyer or a law firm may pay the discount charge incident to the use of an approved credit plan for financing legal fees, costs and expenses. The fact that reasonable fees charged a client may provide the funds with which to pay the discount charge for the plan shall not constitute a violation of this rule, provided that no separate or additional charge may be made for that purpose. See DR2-106(D).


author: ORFINGER, Judge. ORFINGER, Judge.

text:
    Willie James WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2467/T4-294.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied Sept. 24, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant, charged with the crime of robbery with a firearm, was convicted after a jury trial. When he testified in his own defense that someone else had left the stolen articles in his car, a man he had met that evening, the prosecutor asked him:

Q: Did you tell the police officers that when they stopped you and told you about the robbery?
A: No. I didn’t say nothing.

Appellant’s objection and motion for mistrial were denied.

The question concerning appellant’s silence when detained by the police was constitutionally prohibited, and constitutes reversible error without regard to its prejudicial effect. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L. R.3d 974 (1966); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977).

The objection was proper and the motion for mistrial should have been granted. Clark v. State, 363 So.2d 331 (Fla.1978); Harris v. State, 381 So.2d 260 (Fla. 5th DCA 1980). Appellant’s conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

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

ON PETITION FOR REHEARING

ORFINGER, Judge.

The State urges us to recede from our opinion in this case on the basis of Jenkins v. Anderson,-U.S.-, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), rendered shortly after the opinion sub judice was filed. The State’s argument is persuasive, but an analysis of Jenkins in the light of the facts in this case makes it inapplicable.

Jenkins clearly holds that when a criminal defendant testifies, there is no constitutional violation in the use of pre-arrest silence to impeach his testimony at trial. In that case, two weeks elapsed between the murder and the defendant’s arrest. At trial, defendant admitted the killing, but claimed self defense; on cross examination his testimony was impeached by questions which elicited the information that he had not reported the incident to the police nor claimed self defense prior to his arrest.

There are statements in Jenkins which would lead one to believe that once a defendant elects to testify, his credibility may be attacked on cross examination in the same manner as would the testimony of any witness. If ascertaining the truth is a relevant function of a court of justice (as it must be), it would seem that a defendant’s silence at any time when a reasonably prudent person would speak up would be a proper subject of cross-examination once a defendant elects to testify, because it does go to the question of the credibility of his testimony and it is the type of question properly presented to a non-defendant witness. This position gains support from the approval and re-affirmance by the majority of the Jenkins court of the case of Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where at a second trial following a jury deadlock, the prosecutor was permitted to impeach the defendant’s testimony by showing that he did not testify at the first trial. Obviously the first trial was a post — arrest situation.

However, notwithstanding its support of Raffel, the Supreme Court reaffirms Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), with this language:

Only in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 1624-1627, 16 L.Ed.2d 694 (1966), when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor’s actions were permissible, but we concluded that “the Miranda decision compels.rejection of the State’s position.” Id., 426 U.S., at 617, 96 S.Ct., at 2244. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, “it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.” Id., at 619, 96 S.Ct., at 2245, quoting United States v. Hale, 422 U.S., at 182-183, 95 S.Ct., at 2139-2140 (WHITE, J., concurring in judgment). In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case.

Jenkins, 100 S.Ct. at 2130.

In a case decided a week after Jenkins, the Supreme Court again affirmed Doyle, holding that while a defendant who testifies may not be impeached by post-arrest silence after receiving Miranda warnings, his testimony may be impeached by prior inconsistent statements, since in making the statement he was not exercising his constitutional right to remain silent. Anderson v. Charles,-U.S.-, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).

While the State urges us to hold that the silence here is pre-arrest, the circumstances make it impossible to so hold. Defendant was stopped, searched and arrested in less than fifteen minutes from the time the crime occurred. He was placed under arrest and read his Miranda rights immediately after the search revealed the envelope containing the money taken in the robbery, so there was hardly any opportunity to tell the police officers anything between the time the envelope was discovered and his arrest. He was in a custodial situation at all times.

For the reasons expressed here, we adhere to the original opinion herein, and the Petition for Rehearing is

DENIED.

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

      . For example: “In determining whether a constitutional right has been burdened impermissi-bly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, 412 U.S., at 32, and n. 20, 93 S.Ct., at 1985, and n. 20. Attempted impeachment on cross-examination ' of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’ Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).” 100 S.Ct. at 2129.

      . See also, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), where a defendant’s testimony was held properly impeached by a prior inconsistent statement taken in violation of his Miranda rights.


text:
    CITY OF ST. AUGUSTINE, a Florida Municipal Corporation, Appellant, v. AUTHENTIC OLD JAIL, INC., a Florida Corporation, Appellee.
    No. 79-254.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Rehearing Denied Aug. 26, 1980.
    Geoffrey B. Dobson, City Atty., St. Augustine, for appellant.
    Malcolm L. Stephens, Jr. of Stephens & Stephens, St. Augustine, for appellee.

      William A. Van Nortwiek, Jr., and Stephen H. Durant of Martin, Ade, Birchfield & Johnson, Jacksonville, for amicus curiae, St. Augustine Trains, Inc.
   PER CURIAM.

The City of St. Augustine enacted an ordinance on May 23, 1977, regulating the use of trailer-trains on the streets of the City of St. Augustine. The ordinance prohibited operation of such trailer-trains without first obtaining a franchise from the city to do so. Said ordinance had an effective date of January 1, 1978. After the effective date of the ordinance, Authentic Old Jail, Inc. operated such a trailer-train on the streets of the City of St. Augustine without a franchise. The city filed suit requesting an injunction against Authentic Old Jail, Inc. Old Jail filed a motion to dismiss, alleging among other things that the ordinance was unconstitutional. The trial judge denied that motion. Thereafter, an answer containing affirmative defenses and counterclaim was filed by Old Jail. This document again alleged the unconstitutionality of the ordinance. Old Jail filed another motion to dismiss, alleging that the city abused its police power in passing this particular ordinance by setting an effective date more than seven months after the passage of the ordinance.

The court granted that motion and held: Ordinance Number 77-18 passed by the City Commission of the Plaintiff, City of St. Augustine, Florida on May 23,1977, is unconstitutional, null and void in that the Plaintiff abused its police power in making the effective date of the ordinance January 1, 1978.

The complaint was dismissed with prejudice and this appeal resulted. On a motion to dismiss the complaint the court must look solely to the allegations of the complaint. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla.2d DCA 1975). There is nothing within the four corners of the complaint which would show that the city abused its police power in delaying the effective date of the ordinance and we hold that a seven month delay on its face is not unreasonable.

As stated in the case of Neisel v. Moran, 80 Fla. 98, 85 So. 346 (1920):

Those who assert the unconstitutionality of the statute have the burden of showing that beyond all reasonable doubt the statute inevitably conflicts with some designated provision of the Constitution.
(cites omitted).
A statute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it can be specifically pointed to.

Id., 85 So. at 348.

Certainly there was no showing whatsoever in this case of any abuse of police power inasmuch as no facts were even presented to the court and we therefore have no alternative other than to reverse.

Accordingly, the court’s order of January 8, 1979 dismissing the case with prejudice is reversed and the cause is remanded.

REVERSED AND REMANDED.

CROSS and SHARP, JJ., and BROWN-LEE, JACKSON 0., Associate Judge, concur.


author: SCHEB, Chief Judge. PER CURIAM.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Daniel Robert KNOWLES and Kay Knowles, Husband and Wife, and Robert Glen Gregg, Appellees.
    No. 80-16.
    District Court of Appeal of Florida, Second District.
    July 11, 1980.
    Rehearing Denied Oct. 3, 1980.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant, and appellee Gregg.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellees Daniel Knowles and Kay Knowles.
   SCHEB, Chief Judge.

Daniel Robert Knowles and Kay Knowles sued the Florida Department of Transportation (DOT) and its employee, Robert Glen Gregg, for negligence resulting in a November 21, 1977, motor vehicle accident. The jury found Gregg negligent and the trial court entered judgment of $70,000 for Daniel Robert Knowles and $10,000 for Kay Knowles against DOT. The court, however, limited recovery to $50,000 for Daniel Knowles and $10,000 for Kay Knowles under Section 768.28(5), Florida Statutes (1977). The court then assessed costs of $741.75 against DOT. The court refused to enter judgment against Gregg on the authority of Section 768.28(9).

DOT contends that Section 768.-28(5) restricts the total judgment which the court could enter against DOT to $50,000. We disagree. In State v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), our sister court held that the $50,000 limitation of Section 768.-28(5) does not apply to separate claims by different individuals in the same lawsuit. We agree. Likewise, we reject, as did the court in Yant, DOT’s contention that the, court could not assess costs above the limitation of Section 768.28(5). Id. at 101 (on petition for rehearing).

On cross-appeal the Knowles argue that the court erred in refusing to enter judgment against Gregg. Subsequent to the entry of final judgment, the supreme court held that Section 768.28(9) “merely addresses the extent to which the state will be liable for [its employees’] torts” and does not create any immunity for its employees in tort actions. District School Board of Lake City v. Talmadge, 381 So.2d 698, 702 (Fla.1980). Thus, the trial court erred in refusing to enter judgment against Gregg for $70,000.

Accordingly, we direct the trial court to enter an amended judgment against DOT and Gregg for $70,000 for Daniel Robert Knowles and $10,000 for Kay Knowles, plus costs of $741.75.

GRIMES and CAMPBELL, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

On motion for rehearing Gregg points out that the 1980 Florida Legislature amended Section 768.28(9), Florida Statutes (Supp. 1980), to provide that “[t]he exclusive remedy for injury or damages suffered as a result of any act, event or omission of any officer, employee, or agent of the state ... shall be by action against the governmental entity .... ” Ch. 80-271, § 1, Laws of Fla. (emphasis added). It also made the amendment expressly applicable to all actions pending in the trial or appellate courts on the effective date of the amendment. Id. § 4. The law became effective July 1, 1980, and, therefore, purports to be applicable to the present case.

. Gregg now argues that the amendment precludes the entry of a judgment against him. We disagree. Application of the amendment would eliminate the Knowles’ cause of action against Gregg. To the extent that Chapter 80-271 retroactively eliminates the Knowles’ vested right to sue Gregg, it is unconstitutional. McCord v. Smith, 43 So.2d 704 (Fla. 1949).

Accordingly, the motion for rehearing is denied.

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

      . Section 768.28(5) states:
      The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974.

      . Section 768.28(9) states:
      No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Subject to the monetary limitations set forth in subsection (5), the state shall pay any monetary judgment which is rendered in a civil action personally against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function.
      The 1979 Legislature deleted that portion of Section 768.28(9) which provided that the state would pay any monetary judgment rendered in a civil action personally against an employee of the state acting within the scope of his employment. Ch. 79-139, § 9, Laws of Fla. We do not now address the effect of this amendment on the holding of District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980), that Section 768.28(9) does not immunize a state employee from liability for negligence.

      . We do not address the constitutionality of the prospective application of Section 1 of Chapter


text:
    Joe Allen CHAPMAN, Appellant, v. Bonnie Lou Brodie Chapman LAMM, Appellee.
    No. 79-1550.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Oct. 14, 1980.

      Elizabeth S. Baker, Kathy Hamilton and Stephen Maher, Legal Services of Greater Miami, Miami, for appellant.
    Rubin & Friedman and Nichol&ji R. Friedman, Miami, for appellee.
    Before HUBBART and BASKIN, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

Respondent Joe Allen Chapman, who has been ordered committed to the Dade County jail for 90 days, appeals from an order which finds:

“1. That the respondent, Joe Allen Chapman, has had the ability to make the child support payments required by prior order of court, but had failed and refused to do so and is, therefore, in willful contempt of court.
“2. That the respondent is in arrears $8,135.00 of which $2,987.50 is owed to the State of Florida, Department of Health and Rehabilitative Services and $5,147.50 is owed to the payee.
* * if! * * *
“5. That the respondent may purge himself of contempt by the payment of $8,170.00, made payable to the Clerk of the Circuit Court.
******
“6. . . . $2,987 shall be paid to the State of Florida, Health and Rehabilitative Services; $5,147.50 shall be paid to Bonnie Lamm, . . . and $35.00 to Joe Schwartz, . . .”

In his brief and in argument before this court, Chapman has concentrated largely upon his contention that the order is reversible because it purports to imprison him for a sum of money owing to the State of Florida. We find this position well taken and reverse the order appealed.

The courts may not imprison for failure to pay a debt. Contempt for failure to pay court-ordered alimony or child support is based upon the fact that such obligations arise out of the duty owed and that, in accordance with public necessity, dependents must be supported. See Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); and Gersten v. Gersten, 281 So.2d 607 (Fla.3d DCA 1973). When the obligation has been converted into a debt to a third person, it no longer carries the public necessity for enforcement by imprisonment. See Corbin v. Etheridge, 296 So.2d 59 (Fla.lst DCA 1974); and State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla.2d DCA 1966). The fact that the State is the third party does not transfer to the State a greater right to the remedy of contempt than that held by a private litigant. See 30 Fla.Jur. State of Florida § 52 (1974), and cases cited therein; see also Turner v. State, 168 So.2d 192 (Fla.3d DCA 1964), and compare Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 43 L.Ed.2d 608 (1973).

There is a jurisdictional deficiency appearing on this record that we feel should be discussed. It appears that Chapman was not personally served in the dissolution proceeding. Jurisdiction procured through service by publication will not support an order for contempt for failure to pay support contained in the final judgment. See Hunter v. Hunter, 359 So.2d 500 (Fla. 4th DCA 1978); Palmer v. Palmer, 353 So.2d 1271 (Fla.1st DCA 1978); and Carnes v. Carnes, 256 So.2d 550 (Fla.4th DCA 1972). It is suggested that Chapman later appeared and submitted himself to the jurisdiction of the court. See Keena v. Keena, 245 So.2d 665 (Fla.1st DCA 1971). The record does not support a conclusive finding by this court regarding the time Chapman was served with the judgment and given an opportunity to respond to the child support obligations. This determination must be made by the trial court. It is sufficient here to state that Chapman was notified to appear before the court for his violation of a court order dated May 11, 1979, and filed May 17, 1979. There is no showing in the record that Chapman was before the court at any time prior to that date or that the order was more than an ex parte provision that future payments be made into the Central Depository. If Chapman was served with the order, there is no certificate of service so indicating.

A hearing that was held upon a motion for contempt filed by an Assistant State Attorney resulted in Chapman’s being held in contempt for failure to abide by the final judgment and being ordered, as a condition of his release, to pay a sum which his former wife testified was due under the final judgment. These proceedings are so irregular that they cannot be allowed to stand. We would not in any way indicate that Chapman is not to be susceptible to punishment for his failure, as a father, to help to support his children. The propagation of children for others to support is an evil that is all too prevalent in our social system and one that threatens its stability. Nevertheless, a defaulting father must be accorded due process of law if he is to be imprisoned.

One other deficiency must be remedied if contempt of court is to be employed for the enforcement of Chapman’s obligation. It does not appear on this record that Chapman has the ability to pay the sums he has been ordered to pay. Imprisonment for failure to obey a court order to pay support money may be imposed only when the record contains proof of the accused’s ability to make the payments. See Faircloth v. Faircloth, supra.

Our holdings make it unnecessary to proceed further with the arguments presented by the parties; accordingly, the order of commitment is reversed.

Reversed.

      . The trial court has granted the respondent’s motion for release pending this appeal.

      . See Art. I, § 11, Fla.Const. (1968).


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Raymond Richard POWERS, Appellee.
    No. 79-2302.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    Rehearing Denied Oct. 30, 1980.

      Michael J. Satz, State Atty. and Teresa Beazley Widmer, Asst. State Atty., Fort Lauderdale, for appellant.
    J. David Bogenschutz of Varón & Stahl, P.A., Hollywood, for appellee.
   HERSEY, Judge.

The state appeals from an order granting a motion to suppress evidence in a case in which appellee, Powers, was charged with six counts of violation of The Drug Abuse Law (Chapter 893, Florida Statutes (1979)).

The evidence was found during the execution of a search based upon a warrant. The affidavit supporting issuance of the search warrant was made by law enforcement personnel based upon a telephone conversation between Powers and an individual whose telephone was the subject of an authorized wiretap. A transcript of that conversation was attached to the affidavit.

The telephone conversation involved a lengthy discussion of quantities and prices of several controlled substances. At various times during the conversation Powers indicated that he did not have the drug or the quantity requested but could obtain it. Powers did state that he had some “bootleg” tuinals (barbituates) and a pound and a half of “pot” (marijuana). He did not, however, specifically say that these drugs were located in his residence.

The trial court, in granting the motion to suppress, found that “the affidavit is insufficient to show that the violations of state law alleged were being committed at 260 N.W. 46th Court, Hollywood, Florida, a residence house, and that there is no demonstrable nexus between the alleged contraband and that place described above to support issuance of the within search warrant,

Section 933.18, Florida Statutes (1979) prohibits issuance of a search warrant for search of a private dwelling for violations of the law relating to narcotics or drug abuse unless the law is currently being violated within that private dwelling. Gerardi v. State, 307 So.2d 853 (Fla. 4th DCA 1975). Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction may be based. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). Thus, interpretation of the facts in a “commonsense and realistic fashion,” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence. United States v. Valenzuela, 596 F.2d 824 (9th Cir. 1979), cert. denied 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979).

In this case, the telephone conversation revealed that Powers had, within his control, marijuana and tuinal. The taped conversation was replete with references to drugs that Powers did and did not “have” and he was speaking from a telephone located in his residence. Therefore, it was reasonable to infer that there were contraband drugs in the house in question. That being so, the affidavit was a sufficient basis for issuance of the search warrant. The order suppressing use of the drugs as evidence is therefore reversed and the cause is remanded for such further proceedings as may be appropriate.

REVERSED and REMANDED.

LETTS, C. J., and ANSTEAD, J., concur.


author: GLICKSTEIN, Judge.

text:
    George DEMING, Appellant, v. WHYI, INC., a Florida Corporation, et al., Appellees.
    No. 79-932.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 30, 1980.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    Bryan S. Henry of Atkinson, Golden, Ba-cen & Diner, P. A., Hollywood, for appel-lees.
   GLICKSTEIN, Judge.

This is a timely appeal from a final judgment and subsequent order denying motion to vacate final judgment. We affirm.

Appellant was one of several defendants in this action brought by a radio station to recover for radio advertising services it had performed. The amended complaint alleged that appellant and others, individually and as agents for a disclosed principal, agreed to pay for the services. Prior to trial appellant’s counsel was allowed to withdraw. The record reflects that the order permitting withdrawal required that all further pleadings and notices be directed to appellant at a specific address.

Several months later plaintiff moved to set the non-jury trial. The order setting the cause for trial shows that a copy of the motion and order were furnished to appellant. Appellant does not represent that he did not receive the notice of trial, but according to his brief he did not appear at trial. Judgment was entered against him, another individual, and the disclosed principal.

Shortly after entry of the judgment newly obtained counsel unsuccessfully sought the trial court’s consideration of appellant’s position. On appeal appellant argues that the “record" clearly shows he did not contract individually with the radio station, and points to the answer to interrogatories and his deposition in support thereof.

To deny appellant relief is a harsh result, but a natural consequence of his failure to appear at trial. Holt Industries, Inc. v. Airtronies International Corp., 139 So.2d 731 (Fla. 3d DCA 1962); see Vines v. Vines, 357 So.2d 243, 246 (Fla. 2d DCA 1978). In the absence of any evidence that the nonappearance was caused by non-receipt of notice, we feel compelled to affirm.

AFFIRMED.

MOORE and BERANEK, JJ., concur.