text:
    Ray S. HILL and Patricia L. Hill v. Wilmer C. DAWS, Jr., Executor of the Estate of Christine M. Little, Deceased, and Wilmer C. Daws, Jr., Individually.
    No. 53015.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Rehearing Denied Dec. 9, 1981.
    Graham, Segrest & Johnson, Thomas L. Segrest, Columbus, for appellants.
    Snow, Covington, Temple & Watts, W. Arlo Temple, Meridian, for appellee.
   Appeal from Circuit Court, Kemper County; Lester F. Williamson, Judge.

Before PATTERSON, C. J., and WALKER and BOWLING, JJ.

REVERSED AND REMANDED IN ACCORDANCE WITH THIS OPINION.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and HAWKINS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    GSC-ILA PLANS v. The ESTATE OF Lillian PEARSON, Clifton Pearson, Jr., Administrator.
    No. 52850.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Holleman & Krogstad, Michael B. Holle-man, L. Kenneth Krogstad, Gulfport, for appellant.
    Hopkins & Logan, Floyd J. Logan, Gulf-port, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

AFFIRMED ON DIRECT AND CROSS APPEALS.


text:
    Howard L. HOBBS v. Sarah Louise GREELY.
    No. 52937.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Bill Allain, Atty. Gen. by J. Stephen Wright, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Sekul, Hornsby, Wallace & Teel, John Sekul, Biloxi, for appellee.
    Before SMITH, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

REVERSED AND RENDERED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Robert E. ACKERMAN v. Eddie JONES.
    No. 53103.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Martin & Jones, Robert D. Jones, Meridian, for appellant.
    Paul M. Neville, Meridian, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

AFFIRMED.


text:
    MISSISSIPPI STATE UNIVERSITY and United States Fidelity and Guaranty Company v. Ben C. DILWORTH.
    No. 52954.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Gholson, Hicks & Nichols, Lydia Quarles, Columbus, for appellant.
    Ben F. Hilbun, Jr., Starkville, for appel-lee.
    Before WALKER, BROOM and HAWKINS, JJ.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

AFFIRMED.


text:
    Larry PASHALL v. VINTAGE HOMES, INC.
    No. 52597.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Walls, Buck & Irving, Robert E. Buck, Greenville, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, John H. Cocke, Clarksdale, for appellee.
    Before SMITH, P. J. and WALKER and BOWLING, JJ.
   Appeal from Chancery Court, Coahoma County; Harvey T. Ross, Chancellor.

AFFIRMED.


text:
    Walter PHILLIPS v. STATE of Mississippi.
    No. 52975.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    George T. Kelly, Jr., Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

AFFIRMED.


text:
    Anne Jones KING v. Warren G. KING, Jr.
    No. 52973.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Watkins & Eager, James A. Becker, Jr. and Velia Ann Mayer, Jackson, for appellant.
   Appeal from Chancery Court, Yazoo County; G. M. Case, Chancellor.

Holmes & Holmes, John S. Holmes, Bridgforth, Love, Norquist & Stewart, Griffin Norquist, Yazoo City, for appellee.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Richard D. BALLARD v. HOLIDAY INNS, INC. and Warren Dignen.
    No. 52978.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Zachary, Gillespie & Rogers, George E. Gillespie, Jr., Hattiesburg, for appellant.
    Aultman & Aultman, Lawerence C. Gunn, Jr., Jon Mark Weathers, Hattiesburg, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

AFFIRMED.


author: WALKER, Justice,

text:
    Josephine SARTAIN v. STATE of Mississippi.
    No. 53207.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Mel Davis, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of the Second Judicial District of Yalobusha County, Mississippi, from an order of that court dismissing appellant’s appeal from a conviction in the municipal court of the City of Water Valley on the charge of disturbing the peace, and entering a writ of proceden-do which it declined to set aside, on proper motion, during the same term of court to-wit: January 1981.

After being convicted on March 24, 1978, in the municipal court of Water Valley, the appellant timely perfected her appeal to the July 1978 Term of the Circuit Court of the Second Judicial District of Yalobusha County. It is undisputed that Mrs. Sartain or her attorney met the calling of the docket at the July 1978 Term and each subsequent term thereafter until January 26, 1981, which was the first day of the regular January 1981 Term of court. The reason for appellant’s absence was that she was ill with the flu and unable to attend the docket call. Her case was called, and there being no one present to represent her, the court entered its order for a writ of proce-dendo and dismissed the appeal. Later during the day of January 26, 1981, appellant contacted the court and was informed that said order had been entered against her. She was further advised that if she was aggrieved by the court’s ruling,, to be present with her attorney on Friday, January 30, 1981.

On Friday, January 30, 1981, appellant and her attorney were present, whereupon she filed her motion for the court to set aside its prior order for writ of procedendo and dismissal, upon which motion a hearing was had. After hearing the assistant district attorney strenuously argue that Mrs. Sartain had not complied with the terms of her bond by not being present when the docket was called on January 26, 1981, the court denied appellant’s motion.

Mississippi Code Annotated section 99-35-1 (1972) provides as follows:

In all cases of conviction of a criminal offense against the laws of the state by the judgment of a justice of the peace, or by the mayor or police justice of a city, town or village, for the violation of an ordinance thereof, an appeal may be taken within forty (40) days from the date of such judgment of conviction to the circuit court of the county which shall stay the judgment appealed from.
On appearance of the appellant in the circuit court the case shall be tried anew and disposed of as other cases pending therein. (Emphasis added).

We are of the opinion that Mrs. Sartain’s argument that the circuit court abused its discretion in refusing to set aside its order of dismissal and for a writ of procedendo to issue to the municipal court of Water Valley is well taken. It is undisputed that Mrs. Sartain properly perfected her appeal to the Circuit Court of the Second Judicial District of Yalobusha County and met every term of court from the July 1978 return term with the exception of January 26, 1981, when Mrs. Sartain was sick and unable to attend court. During this period, Mrs. Sartain’s case was not set for trial and “disposed of as other cases pending therein” as provided by section 99-35-1. Moreover, after checking on her case on January 26, 1981, and learning that a writ of procedendo had been ordered, she timely filed a motion to have the order set aside.

We are of the opinion that Mrs. Sartain’s absence from the sounding of the docket on January 26, 1981, was justifiably explained and that under the facts presented by this record the court abused its discretion in not setting aside its order of dismissal and for a writ of procedendo to the municipal court of Water Valley. Mrs. Sartain was not guilty of willful neglect, bad faith or otherwise trifling with the court. See Kennard v. State, 240 Miss. 488 127 So.2d 848 (1961).

The judgment of the trial court dismissing the appeal of Mrs. Sartain and ordering a writ of procedendo to the municipal court of Water Valley is reversed; and this cause remanded to the Circuit Court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and BOWLING, JJ., concur.

HAWKINS, J., took no part.


author: ROBERTSON, Presiding Justice,

text:
    Eddie Lee BARRY v. STATE of Mississippi.
    No. 53077.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Roger H. McMillin, Jr., New Albany, for appellant.
    Bill Allain, Atty. Gen., by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Eddie Lee Barry was convicted in the Circuit Court of Union County of grand larceny for stealing a CB radio, speaker and antenna from Baxter N. Knox, Jr. He was sentenced to five years with the Mississippi Board of Corrections, with three years suspended.

Appellant Barry assigns as error:

I. That the CB radio, speaker and antenna were obtained from the trunk compartment of his automobile, as a result of an unlawful search and seizure; and
II. That the evidence as to the value of the property taken was insufficient to prove a value of $100 or more, and thus, at most, he would be guilty of petit larceny only.

During the early morning hours of April 2, 1980, Officer R. W. Davis stopped the defendant’s automobile on Cleveland Street in the City of New Albany for no license plate. When the defendant, who smelled of alcohol, failed to exhibit a driver’s license, Davis asked him to step out of the car. The defendant admitted drinking one beer but denied having any more beer in his possession.

After the defendant got out of his automobile, Davis observed some beer cans lying on the floorboard. Davis inquired whether defendant had any beer in the trunk. Defendant answered “no” and offered to show Davis. When the defendant opened the trunk, Officer Davis and Officer Gaines, who had arrived as a backup unit, observed a Pace CB Radio, an antenna and a speaker lying in the trunk. Defendant explained that he had just purchased the car and had not had time to install the CB radio which he had taken out of his other car. Defendant was ticketed for no driver’s license and released.

Baxter N. Knox, Jr., reported the theft of his Pace CB Radio about 8:00 a. m. on April 2, 1980. The radio was taken from Knox’s automobile while parked in his driveway some time between April 1 and the morning of April 2. The area where defendant was stopped was approximately five blocks from Knox’s home.

On April 3, 1980, Inspector Bryant talked with Officers Davis and Gaines concerning the theft of Knox’s radio. They informed him of seeing a Pace CB radio in the trunk of Barry’s car. Inspector Bryant and Officer Davis then proceeded to defendant’s residence, where they knocked on the door but received no answer; however, some small children told the officers that the defendant was inside. Inspector Bryant left to secure a search warrant while Officer Davis remained in the breezeway out of sight.

Shortly after Bryant left, the defendant opened the door and started to leave. Officer Davis stopped the defendant and asked about the CB radio. Defendant said he had returned the radio to the person he had gotten it from. Defendant began vacuuming and moving around in the apartment. Davis asked him to be still and remain in his sight. When Barry asked where Inspector Bryant had gone, Davis replied “to get a search warrant”. At this point, Barry stated he would get the radio. He got his car keys, went outside and unlocked the trunk. Davis testified:

“A When he opened the trunk he reached in and got it and handed it to me.
“Q Did you have any type search warrant to enable you to search for that radio at that time?
“A I didn’t search for it. He opened the trunk and handed me the radio.”

I.

It is apparent to us, after carefully reviewing the record, that Barry freely and voluntarily consented to the search (if looking into the trunk could be considered a search), because he was not threatened, nor was he under any duress when he (Barry) opened the trunk and Officers Davis and Gaines saw the CB radio, speaker and antenna loose on the floor of the trunk. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See also, Ramon v. State, 387 So.2d 745 (Miss.1980), Cutchens v. State, 310 So.2d 273 (Miss.1975), and Luton v. State, 287 So.2d 269 (Miss.1973).

There is no merit in this assignment of error for this additional reason: there was probable cause, as well as exigent circumstances, for an immediate search. The CB radio was in the trunk of an automobile which could be easily moved and driven away. A warrantless search of an automobile has long been recognized as an exception to the warrant requirement provided probable cause and exigent circumstances exist. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception is founded on the basic premise that for IV Amendment purposes there is a fundamental difference between houses and cars. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). See also Miller v. State, 373 So.2d 1004 (Miss.1979).

II.

As to the second assignment of error, owner Knox testified that he paid around $200 for the 23-channel Pace CB radio, speaker and antenna about 2xh years before April 2, 1980, the day they were stolen. This was the only CB radio that Knox had ever bought or owned. Knox stated that his CB radio was worth at least $150 to him and that if he offered it for sale he wouldn’t take less than $150 for it.

Barry produced William H. Pollard, the owner of a Western Auto Store, who had dealt in new and used CB radios for 6V2 years and had bought and sold between 5000 and 10,000 CB radios, new and used. He testified that the 23-channel CB radio had been superseded by the 40-channel radio, that the market for 23-channel radios was depressed and that in his opinion a used 23-channel CB radio like Mr. Knox’s would sell for between $35 and $40 and the speaker for $12.50. He was of the opinion that under no circumstances would a CB radio and equipment like Mr. Knox’s be worth as much as $100 on the open market.

In 50 Am.Jur.2d Larceny § 45 (1970), this language is found:

“Thus, in the case of common articles having a market value, the courts have usually rejected the original cost and any special value to the owner personally as standards of value for purposes of graduation of the offense, and have declared the proper criterion to be the price which the subject of the larceny would bring in open market — its ‘market value’ or its ‘reasonable selling price,’ at the time and place of the theft, and in the condition in which it was when the thief commenced the acts culminating in the larceny.”
50 Am.Jur.2d at page 209-10. (Emphasis added).

3 Wharton’s Criminal Law § 357 (14th Ed. 1980), has this to say about proving value of stolen property:

“When the grade of larceny depends upon the value of the property taken, such value must be proved as a fact and be determined by the jury.
“In the ordinary case, the proper yardstick is the market value of the property at the time and place of the larceny; the original cost of the property or any special value to the owner personally is not considered.” 3 Wharton’s at page 309-11. (Emphasis added).

We are of the opinion that the proof was not sufficient to establish the fair market value of Knox’s CB radio, speaker and antenna, at the time they were stolen, at $100 or more, and, therefore, under Mississippi Code Annotated section 97-17-43 (1972), Barry was guilty only of petit larceny-

The conviction of Barry is, therefore, affirmed as to the lesser included offense of petit larceny, and this cause is remanded to the lower court for re-sentencing under the provisions of section 97-17 — 43, supra.

AFFIRMED AS TO PETIT LARCENY ONLY AND REMANDED FOR RESEN-TENCING.

PATTERSON, C. J., SMITH, P. J. and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: LEE, Justice,

text:
    Charlie C. DERRICK v. STATE of Mississippi.
    No. 53226.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Thomas L. Booker, Philadelphia, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
   ON MOTION

LEE, Justice,

for the Court:

Appellant, Charlie C. Derrick, was convicted in the Circuit Court of Neshoba County, Mississippi, for armed robbery and sentenced to a term of forty years with the Mississippi Department of Corrections and he has appealed to this Court.

The state has filed a motion to dismiss the appeal and has attached to its motion an affidavit of the Sheriff of Neshoba County that appellant escaped from the Neshoba County Jail on August 28, 1981, and is presently at large. The state requests that the rule in Jones v. State, 218 So.2d 705 (Miss.1969), be modified to provide that an appeal be dismissed when an appellant escapes from custody pending his appeal in a felony case. The Court stated in Jones the following:

The new rule is that where a person is convicted of a felony and perfects an appeal to this Court and escapes from custody pending his appeal and is still a fugitive when his case is called for hearing on the merits such action shall be deemed an abandonment of the appeal and will be subject to a motion by the State to dismiss such appeal. However, such dismissal shall be subject to be reinstated on motion of appellant showing good cause therefor.
(218 So.2d at 706).

We are of the opinion that the motion to dismiss the appeal should be sustained and the rule expressed in Jones, supra, is modified in order to express the following:

The new rule is that where a person is convicted of a felony and perfects an appeal to this Court and escapes from custody pending his appeal such action shall be deemed an abandonment of the appeal and will be subject to a motion by the state to dismiss such appeal. However, such dismissal shall be subject to be reinstated on motion of appellant showing good cause therefor.

MOTION SUSTAINED.

All Justices concur.


author: PER CURIAM.

text:
    Ahmad MIZANI, Esfandi Yari Kazemalt, and Syrus Dastjerdi, Appellants, v. STATE of Florida, Appellee.
    No. 54306.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Stephen Lindsey Gorman and Sidney L. Matthew, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

In light of our recent decision in State v. Allen, 362 So.2d 10 (Fla.1978), this case presents no colorable constitutional issue, and it is, therefore, transferred to the District Court of Appeal, First District, for consideration of the remaining points raised by the appellants.

It is so ordered.

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


text:
    James VOSBURGH, Appellant, v. STATE of Florida, Appellee.
    No. 58791.
    Supreme Court of Florida.
    July 10, 1980.
    Jack O. Johnson, Public Defender, and Karal B. Rushing, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. State v. Cain, 381 So.2d 1361 (Fla.1980). It is so ordered.

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


author: PER CURIAM. PER CURIAM.

text:
    Harold MURPHY, Appellant, v. TOWN OF PALM BEACH, a municipal corporation, Marvin D. Forman and William L. Shetron, Appellees.
    No. 80-509.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1981.
    On Rehearing Nov. 18, 1981.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., and Edna L. Caruso, West Palm Beach, for appellant.
    Jeffrey J. Walker and Frank G. Cibula, Jr., of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED.

BERANEK and HERSEY, JJ., and WARREN, LAMAR, Associate Judge,, concur.

ON REHEARING

PER CURIAM.

A per curiam affirmance was entered in this matter on August 5, 1981. Motion for rehearing followed, one ground of which requires that rehearing be granted.

Appellant, a police officer, filed an action for damages against the appellee. Town of Palm Beach, alleging wrongful termination without due process and wrongful removal without complying with the town charter. The action was dismissed with prejudice by the trial court and on appeal the dismissal was affirmed.

In his action, however, appellant also sued officers Forman and Shetron in separate counts for tortious interference with contract, defamation and conspiracy to defame and interfere with contract. The cause should be allowed to proceed against these defendants.

The order of the lower court should be reversed as to the dismissal of the two officers, but otherwise affirmed.

AFFIRMED IN PART; REVERSED IN PART.

BERANEK and HERSEY, JJ., and WARREN, LAMAR, Associate Judge, concur.


author: PER CURIAM. JO ANOS, Judge,

text:
    Stella WINFIELD, Appellant, v. STATE of Florida, Appellee.
    No. VV-322.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.

      Michael E. Minerva, Public Defender; and Randolph P. Murrell, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The sole question on this appeal of a probation revocation is whether a defendant’s probation may be revoked for failure to pay restitution where the State failed to prove that the defendant had the financial ability to pay, but instead attempted to prove that the defendant had not actively pursued potential employment. For the reasons stated below, we answer the question in the negative and reverse the probation revocation.

After pleading guilty to the offense of temporary unauthorized use of a motor vehicle, the defendant was placed on probation. The defendant’s probation order listed nine conditions of probation, two of which were to “make restitution in the amount of $1536.06” and to “work diligently in a lawful occupation.” Five months later only one monthly installment had been paid towards restitution, and defendant’s probation officer filed an affidavit alleging that defendant had violated the condition requiring her to make restitution. No mention was made of any failure to “work diligently.”

At the probation revocation hearing, the probation officer testified that defendant had not made the required monthly payments, but he also acknowledged that defendant had been unemployed since being placed on probation. Ms. Davidson, a Department of Corrections employee who was to assist defendant in finding a job, also testified for the State. She said that defendant had taken state tests for clerical and secretarial positions but had failed to keep two appointments scheduled with prospective employers ostensibly because of responsibilities to her three children. According to Ms. Davidson, defendant attended a job-seekers workshop but was inattentive and left during the middle. Ms. Davidson acknowledged that the only income sources she was aware that defendant received were aid to families with dependent children (about $230 per month) and food stamps (about $150 per month).

The defendant did not call any witnesses, but argued throughout the hearing that the only relevant issue was her financial ability to pay restitution, which the State had failed to prove. The trial court disagreed and held that defendant was in violation of the restitution condition of her probation stating, in part:

I don’t think the test should be whether or not she is employed and unable to make payment. I think the test should be, generally, that she has the ability to earn. And if she fails to earn, she is still responsible for the indebtedness .... If she is . . . unable to get work, then she wouldn’t be responsible.

Unfortunately, we find that prior case law establishes that “ability to earn” is not the proper test for determining whether there has been a violation of a restitution condition. The cases uniformly hold that a probation condition which require^ payments to be made may not be a basis for a probation violation unless the court specifically finds that the probationer’s “financial condition is such that payment can be made.” Jones v. State, 360 So.2d 1158, 1160 (Fla. 1st DCA 1978). See also I.P.J. v. State, 402 So.2d 1373 (Fla. 1st DCA 1981); Coxon v. State, 365 So.2d 1067 (Fla. 2nd DCA 1979). In Jones, this Court stated that such a finding requires evidence of a probationer’s financial condition both at the time when probation was ordered and at the time of the alleged violation. As evidence of inability to pay, the cases focus on financial condition, Jones, supra, and adjudication of indigency (as occurred in this case) or insolvency, Abel v. State, 383 So.2d 325 (Fla. 2nd DCA 1980); Coxon, supra. Each of these factors involve the present status of financial resources, not the speculative availability of future resources. In fact, the court in Abel, 383 So.2d 325, upheld a finding that the probationer “failed to work diligently at a lawful occupation,” but reversed the trial court’s finding that probation was violated for failure to make required payments because the State did not prove ability to pay. In that case, the “ability to earn” and the “ability to pay” were regarded as two distinctly different tests.

Even if ability to earn could be considered a factor in determining ability to pay, as the State suggests, the evidence presented by the State gives no indication that defendant would have been hired at either of the job interviews set by Ms. Davidson. More importantly, there was no evidence that being hired in either of those two positions would have resulted in defendant’s being financially able to pay restitution.

It is apparent from the evidence presented at the hearing that the State was actually attempting to prove that defendant did not make a diligent effort to locate employment. It is perfectly proper to impose a probation condition requiring the probationer to “work diligently at a lawful occupation,” and this was one of defendant’s conditions of probation. In order to prove violation of the work condition, however, the State must show that failure to maintain or acquire employment was willful and not caused by circumstances beyond the probationer’s control. Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978); § 948.-03(1), Florida Statutes (1979). As a corollary, the defendant could defend by presenting evidence that her lack of employment was not voluntary. By failing to notify defendant of its intention to prove that defendant’s work efforts were unsatisfactory, the State did not give the defendant an opportunity to prepare and present an appropriate defense to the charge. The affidavit charged defendant only with violating the probation condition of paying restitution and did not advise the defendant that her violation of this condition rested upon her having the ability but failing to work. “[A]n affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation .. . . ” Hines v. State, 358 So.2d 183, 185 (Fla.1978). Although the evidence might have supported a violation of defendant’s condition to “work diligently,” due process requires that a probation revocation be based only on the violation alleged. Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973).

REVERSED.

ROBERT P. SMITH, Jr., C. J., and LARRY SMITH, J., concur.

JOANOS, J., dissents.

JO ANOS, Judge,

dissenting.

The requirement of paying restitution was a condition of probation. That defendant would pay restitution if placed on probation and thereby restore some of the damage suffered by the victim was chosen by the trial judge as an alternative to incarceration at the original sentencing hearing. It could very well have been the reason why defendant did not initially receive time.

The restitution was not paid and the victim still suffers from the crime. The evidence presented at the probation violation hearing would support a factfinder’s determination that defendant did not sufficiently seek employment which would have allowed her to pay the required restitution. A defendant’s inability to pay restitution is a defense to a charge of failure to pay restitution. However, for that defense to be sustained, defendant should not be required to merely show that she does not have ready cash to pay the obligation but also that she did not have the means available to earn the necessary funds. For these reasons, I dissent from the majority opinion.


author: SHIVERS, Judge.

text:
    Michael KRATHY, Appellant, v. STATE of Florida, Appellee.
    No. XX-398.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., and Henry John Meyer, Legal Intern, Tallahassee, for appel-lee.
   SHIVERS, Judge.

Krathy appeals his conviction on a charge of burglary, arguing, among other things, that the evidence was insufficient to withstand his motion for judgment of acquittal. We must agree that the State failed to prove a burglary as alleged in the information filed against Krathy, so we reverse the judgment and sentence.

The information charged that Krathy “did unlawfully enter or remain in a structure, to-wit: a dwelling ... with the intent to commit an offense therein, to-wit: theft, in violation of Section 810.02, Florida Statutes.” At trial, the State’s primary witness testified that after hearing the sound of breaking glass in a back room of her home, she walked to the doorway where she observed Krathy attempting to climb in through a window. Upon seeing her, he immediately backed out and fled.

In a prosecution for burglary, the State is required to prove beyond a reasonable doubt that the defendant intended to commit an offense, and this proof must be established in addition to and apart from the proof of unlawful entry. Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Griffin v. State, 276 So.2d 842 (Fla.4th DCA 1973). Here the State offered no proof of intent to commit theft.

This case is unaffected by the “presumption statute,” Section 810.07, which creates a prima facie inference of intent to commit an offense upon proof of a stealthy, non-consensual entry. The State cannot rely on that presumption because it did not plead it in the information. Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981) [1981 F.L.W. 1665]. Instead, the State chose to allege an intent to commit theft. Due process requires that the State prove what it alleges.

Because we must reverse the judgment and conviction on the basis of insufficient evidence, further prosecution on a charge of burglary would be prohibited by Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also Tibbs v. State, 397 So.2d 1120 (Fla.1981). However, Krathy has requested that this court, upon reversal, direct the trial court to enter judgment and sentence on the offense of trespass, and we note that the evidence would support a conviction for trespass of an occupied structure, Section 810.08(2)(b).

Accordingly, the conviction is reversed and this cause is remanded to the trial court for entry of judgment and sentence consistent with this opinion.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    ORIENTE EXPRESS INN and Argonaut Insurance Co., Appellants, v. Eugenia C. RODRIGUEZ and Division of Workers’ Compensation, Department of Labor & Employment Security, Appellees.
    No. YY-496.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Edward Almeyda of Cornell & Almeyda, Miami, for appellants.
    John W. Salmon of Whitman, Wolfe & Gross, Miami, for appellees.
   WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order granting a claim for temporary total disability compensation, awarding medical care “pursuant to the provisions of F.S. 440.13,” and finding claimant, a waitress, had not been rated for permanent disability. Compensability had been denied and the order states no benefits were voluntarily paid. Appellant challenges the sufficiency of evidence for the findings on date of maximum medical improvement and period of temporary disability, and for the award of medical care. We affirm.

Appellant urges reversal of the award of temporary disability compensation because the medical evidence, substantiating claimant’s testimony as to her physically disabling conditions, did not cover every month of the lengthy period in question between August 15, 1978, and July 21,1980. We conclude, however, that the medical evidence sufficiently establishes a causal relation and does not negate the continuity of such disability, particularly where claimant’s right to medical care is in issue during the period in question. Decisions based on clear conflict between medical evidence and a claimant’s testimony, or absence of work search after a medical release for that purpose, are of course to be distinguished. Cf., Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Palm Beach Newspapers, Inc. v. Roston, 404 So.2d 174 (Fla. 1st DCA 1981); Martin Marietta Corp. v. Johnson, 7 FCR 355 (1973), cert. denied, 283 So.2d 557 (Fla.1973). See also Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1980), and Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980).

For similar reasons appellant’s reliance on Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981), is misplaced insofar as the order finds entitlement to future medical attention “pursuant to . . . F.S. 440.13.” No appeal is taken from the reservation of jurisdiction to determine permanent disability, and we find no conflict between the quoted language and the determination of maximum medical improvement based on the opinion of an examining physician. The circumstances, instead, present a situation well within the deputy’s prerogatives as fact finder.

Appellant’s additional argument relates to impropriety of the order’s recitation of a physician’s report not in evidence. The error in this respect appears to be harmless since neither the record nor the face of the order indicate that the report had any significant bearing on the deputy’s conclusions.

The order is affirmed.

ERVIN and JOANOS, JJ., concur.


text:
    James C. BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. AB-167.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Woodburn S. Wesley, Jr. of Cotton, Wesley & Posch, Shalimar, for appellant.
    George C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant was charged with two counts of grand larceny for converting two separate checks to his own use; one in the amount of $112.83, the other in the amount of $160.27. Plea negotiations between the defendant and the State resulted in the State dropping Count II of the information and agreeing not to bring any future related charges. The defendant agreed to plead nolo contendere to Count I. At the sentencing hearing, the judge informed the defendant that he would have to pay $6,000 in restitution. Following the hearing, the order appealed from was entered placing appellant on probation. One of the conditions of probation was that defendant pay $6,000 in restitution to the victim. Shortly thereafter defendant filed a motion for correction and reduction of the sentence. The motion challenged the trial court’s authority to order the restitution without notice and an opportunity to be heard. The motion was denied and this appeal followed.

The procedure for requiring a defendant to pay restitution as a condition of probation is set out in Fresneda v. State, 347 So.2d 1021 (Fla.1977). First, the defendant must be provided with notice of proposed restitution and given an opportunity to be heard on the amount. In addition, the amount of restitution ordered may not be in excess of the damage the criminal conduct caused the victim. See also Hamm v. State, 403 So.2d 1155 (Fla. 1st DCA, 1981).

The record discloses that prior to the sentencing hearing, the defendant did not receive notice that restitution would be a condition of probation. In addition, there is nothing in the record which would support a conclusion that the criminal conduct of which defendant was convicted caused $6,000 worth of damage. The Order appealed from is reversed insofar as restitution was made a condition of probation. This cause is remanded with directions to provide appellant with reasonable notice of any proposed restitution, and to afford him an opportunity to be heard on the amount of restitution, to be required. The hearing should be conducted in accordance with Fresneda and Hamm.

SHAW, JOANOS and THOMPSON, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Raul MOLINA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1460.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Bennett H. Brummer, Public Defender and Steven E. Chaykin, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Molina appeals from his convictions in an armed burglary-robbery case. Over objection, the investigating police officers stated that, after interviewing two co-defendants who did not themselves testify, they arrested Molina and then placed his picture in a photo lineup for identification by the victim.

As was held in the utterly indistinguishable and directly controlling case of Postell v. State, 398 So.2d 851 (Fla.3d DCA 1981), the admission of this testimony was clearly erroneous. We reiterate the conclusion that

where, as in the present case, the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.

398 So.2d at 854. Furthermore, it is to be noted, as Postell, with welcome prescience, also specifically stated,

That the absent ‘witness’ [as in this case] happens to be a co-defendant who does not testify at trial is inconsequential. See also State v. Niesbbalski, 82 N.J.L. 177, 83 A. 179 (1912) (testimony that defendant was arrested upon information received from two co-defendants violated defendant’s right to confrontation where necessary inference was that co-defendants had implicated defendant); State v. Johnson, 538 S.W.2d 73 (Mo.App.1976) (testimony that immediately after speaking to co-defendant, officer arrested defendant, ‘just as much hearsay and objectionable as the implicating statement itself would have been,’ deprived defendant of right of confrontation).

398 So.2d at 855, n.8.

Finally, Postell is uncannily also disposi-tive as to the effect of the error in question. The only other evidence against Molina, as in Postell, was a severely challengeable eyewitness identification by the victim. Thus, as in Postell, 398 So.2d at 856, we conclude that the admission of the hearsay testimony harmfully affected Molina’s trial and requires a new one.

Reversed and remanded.

      . In'final argument the prosecutor emphasized the already obvious conclusion to be drawn from this series of events:
      And I said, ‘Officer — Sergeant Love, what did you do after that discussion? Did you do anything?’
      He did something after that discussion. He arrested Raul Molina for this armed robbery. Get the sequence of the investigation in your mind. Three people are arrested for auto theft. A discussion. Raul Molina gets arrested for this armed robbery, this burglary and this kidnapping.
      In the arrest his picture is taken. His picture is taken and put in a group of pictures of similar young males. What happens?
      * * * * * *
      I ask you to look at one thing, please. Look at the way this case was solved; the course of the investigation: why that second line-up was put together and how it was put together; what it was a result of.

      I think that will explain a lot of the unknowns in this case, [emphasis supplied]

      . Postell was decided long after the trial in the case at bar.


text:
    Castro Jesus FLORES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-437.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.

      Bennett H. Brummer, Public Defender and Geoffrey C. Fleck, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Castro Jesus Flores appeals from simultaneous jury convictions of armed robbery, possession of a firearm during the commission of a felony and two counts of aggravated assault, and from sentences of life term for the robbery conviction and consecutive five-year terms for the aggravated assault offenses.

Flores first claims as error failure of the trial court to appoint an interpreter during the pre-trial proceedings on his motion to suppress his confession. Under Florida law, whether the use of an interpreter is required during trial or certain pre-trial proceedings in order to preserve the defendant’s right to due process is within the sound discretion of the trial judge. See, e. g., Kelly v. State, 96 Fla. 348, 118 So. 1 (1928). We find no reversible error as the record does not demonstrate that Flores was prejudiced by the absence of an interpreter at the preliminary hearing. Cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (denial of right to counsel at preliminary hearing may be harmless error). We also reject Flores’ second argument and find that the trial court committed no error in failing to sentence Flores as a youthful offender under Section 958.04(2), Florida Statutes (1979). Flores’ simultaneous convictions for armed robbery and aggravated assault exclude him from mandatory classification as a youthful offender by virtue of Section 958.-04(2)(a). State v. Goodson, 403 So.2d 1337 (Fla.1981).

Affirmed.

      . We do not pass on the conviction for the illegal possession of a firearm since it was not presented for our review. See, e. g., Wooten v. State, 404 So.2d 1072, n.2 (Fla. 3d DCA 1981); Monroe v. State, 396 So.2d 241 (Fla. 3d DCA 1981).

      . We find Florida law in this respect identical to that of the federal courts prior to the adoption of the Interpreter’s Act, 28 U.S.C.A. § 1827 (1978). See United States v. Martinez, 616 F.2d 185, 188 (5th Cir. 1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981).
      “The use of courtroom interpreters involves a balancing of the defendant’s constitutional rights to confrontation and due process against the public’s interest in economic administration of criminal law. . . . That balancing is committed to the sound discretion of the trial judge, reversible only on a showing of abuse. Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 457, 51 L.Ed. 722 (1907); Hardin v. United States, 324 F.2d 553 (5th Cir. 1963); Suarez v. United States, 309 F.2d 709 (5th Cir. 1962); Pietrzak v. United States, 188 F.2d 418 (5th Cir.), cert. denied, 342 U.S. 824, 72 S.Ct. 44, 96 L.Ed. 623 (1951).


text:
    W.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2120.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Bennett H. Brummer, Public Defender and Robert D. Peltz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

With continuing reluctance, we are once again required to hold that the evidence against the juvenile respondent is insufficient to establish that he was guilty of the theft for which he was adjudicated delinquent either as the active perpetrator or as an aider and abettor. The victim was unable to identify W.J. as the one of two boys in the vicinity who actually grabbed her necklace and there is no showing that he committed any act which aided or assisted in the offense. Therefore, as we did on virtually identical facts in J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981), we must reverse the adjudication entered below and order W.J. discharged. See also, E.H.K. v. State, 405 So.2d 495 (Fla. 3d DCA 1981); L.S. v. State, 391 So.2d 329 (Fla. 3d DCA 1980).

Reversed.

      . As in J.L.B. v. State, 396 So.2d 761, 762, n. 1 (Fla. 3d DCA 1981) we assume arguendo the sufficiency of the showing that W.J. possessed the criminal intent which is also an element of aiding and abetting.


text:
    DIVERSIFIED SERVICES, INC., d/b/a Budget Rent A Car of Miami, Appellant, v. Brenda RIVERS, Appellee.
    No. 80-2391.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.

      Max A. Goldfarb, Miami, for appellant.
    James C. Burke and Eric W. Hendon, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Appellee, Rivers, rented a motor vehicle from the appellant and had listed on the rental contract one Charles Roberts as an additional driver.

When the car was returned, Rivers was billed in accordance with the contract. She refused to pay. Suit was instituted on the agreement and the appellee defended upon the ground that the motor vehicle was stolen from her by the said Charles Roberts, the additional driver. Summary judgment was moved for by both parties and the trial court rendered a summary judgment for the appellee.

We reverse, with directions to enter a summary judgment for the plaintiff as the record fails to establish the theft of the motor vehicle by the additional driver. Therefore, Rivers, as lessee under the rental agreement, is liable for the rental charges.

Reversed and remanded, with directions.


text:
    The STATE of Florida, Appellant, v. Jose A. ZARDON, Jr., and Jose A. Zardon, Sr., Appellees.
    No. 81-909.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geffrey C. Fleck and Frederick S. Robbins, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The state appeals from an order granting the defendants’ motion to dismiss an information which charged them with 14 counts of bookmaking in violation of Section 849-25(1), (2), Florida Statutes (1979). The statute provides:

(1) The term ‘bookmaking’ means the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.
(2) Any person who engages in bookmaking shall be guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084. Notwithstanding the provisions of s.948.01, any person convicted under the provisions of this subsection shall not have adjudication of guilt suspended, deferred, or withheld. [e.s.]

The ruling was based upon the conclusion that the emphasized requirement that persons convicted of violating the statute be adjudicated guilty was unconstitutional. The trial court held that the provision was unreasonable in the absence of an equivalent mandatory requirement for other crimes which the court considered more serious.

This order was an unjustified intrusion into the exclusively legislative domain of determining the relative seriousness and the appropriate respective penalties for statutory crimes. Since there is no tenable claim either that such an obligatory adjudication facially amounts to cruel and unusual punishment, or that it denies bookmakers, as a class, the equal protection of the law, there was no basis for the court to have interfered with the legislature’s decision on the issue. State v. Benitez, 395 So.2d 514 (Fla.1981); Scott v. State, 369 So.2d 330 (Fla.1979); Hamilton v. State, 366 So.2d 8 (Fla.1978); Sowell v. State, 342 So.2d 969 (Fla.1977); Banks v. State, 342 So.2d 469 (Fla.1976); Wooten v. State, 332 So.2d 15 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975); Mullins v. State ex rel. Pellicer, 254 So.2d 787 (Fla.1971). The order under review is therefore reversed and the cause remanded for reinstatement of the information and further proceedings consistent herewith.

Reversed.

      . We note that even if the lower court were right, which it is not, the appropriate remedy would have been simply to strike the offending provision rather than declare the entire statute unconstitutional and dismiss the information. 10 Fla.Jur.2d Constitutional Law §§ 97, 100 (1979).

      . Any equal protection requirement of a “rational basis” for the provision, see State v. Benitez, 395 So.2d 514, 517 (Fla.1981), but cf. Sowell v. State, 342 So.2d 969 (Fla.1977); O’Donnell v. State, 326 So.2d 4, 6 (Fla.1975), is more than satisfied here. The legislature could well and properly have thought it appropriate to be certain that bookmakers were precluded from engaging in the host of sensitive activities from which convicted felons are barred. See, e. g„ § 447.04(l)(b) (labor organization business agent); § 490.26(1 )(c) (psychologist); § 493.-43(3) (polygraph examiner); § 550.181(l)(b) (racing or jai alai licensee); § 561.15(2) (alcoholic beverage licensee); § 648.45(1)(e) (bail bondsman or runner), Florida Statutes (1979).

      .We also reject the appellate contention that the provision is an invalid interference with the sentencing discretion of the court. E. g., Scott v. State, supra, 369 So.2d at 331 (rejecting claim that three-year mandatory sentence for possessing firearm during felony “unconstitutionally binds trial judges to a sentencing process which wipes out any chance for a reasoned judgment”).


text:
    C. A. HOBBS, Jr., Lauryce G. Hobbs, and C. A. Hobbs, Jr., Inc., Appellants, v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a national banking corporation, Land Tract Development, Inc. a Florida corporation, Robert J. Shumer, and Edward J. Morales, individually and d/b/a Morales & Shumer, Engineers, Appellees.
    No. YY-10.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Jere D. MeWinn, Jacksonville, for appellants.
    John M. McNatt, Jr., J. Stephen O’Hara, Jr., of Mathews, Osborne, Erhlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lees.
   WENTWORTH, Judge.

Appellants seek review of an order dismissing their amended third party complaint with prejudice. The dismissal was on the ground that as a matter of law any loss the third party plaintiffs may suffer as endorsers of a mortgage note was not proximately caused by the third party defendants. We affirm the dismissal on alternative grounds but without prejudice.

Appellants, defendants and third party plaintiffs below, endorsed and guaranteed a mortgage note between Florida First National Bank, mortgagee and plaintiff below and Land Tract Development, Inc., mortgagor and defendant below. Land Tract engaged Dake Associates as a consultant to perform certain development services under a contract specifying that Dake would separately contract with Morales and Shumer, appellees and third party defendants below, to provide engineering services, and that this separate contract was attached, referenced, and a part of the contract with the consultant. Plaintiff below filed a foreclosure action on the mortgage note against mortgagor and endorsers in October 1975, and obtained a summary-final judgment of foreclosure in February, 1977, including an order for public sale of the mortgaged property, which this court affirmed in December, 1977.

The order now on appeal arises from a deficiency judgment suit by the mortgagee against the mortgagor and endorsers (appellants and third party plaintiffs). The third party complaint was filed in July, 1979, by leave of court, and amended in April, 1980. The amended complaint alleged that the negligence of the appellees, in performing engineering inspections and rendering reports on work completed, caused the mortgagee to wrongfully disburse loan proceeds to the mortgagor/developer. Further that, in turn, these unwarranted disbursements led, or contributed, to the foreclosure judgment and the present deficiency judgment action against the appellants.

The appellees concede that it was reasonably foreseeable that the mortgagee would rely on appellees’ certifications of work completed to issue mortgage loan proceeds and that negligence in performing these duties could foreseeably injure the mortgagee. Appellees argue, however, and the trial court agreed, that it was not foreseeable that this negligence would be the proximate cause of injury to the appellants. We are unable to agree. Multi-party mortgage notes such as those here in question, with a lender, borrower, and endorsers, are common instruments in the financing of real estate developments, particularly where, as in this case, the borrower is a corporation with limited liability under corporate law. We conclude that it is not merely foreseeable but probable that should there be a mortgage foreclosure because the work completed did not keep pace with the loan disbursements, the lender would seek to recover any deficiency from the unincorporated endorsers with their unlimited liability. Thus the allegations in the amended third party complaint that appellees’ negligence caused the lender to disburse loan proceeds which would not otherwise have been disbursed, and that these wrongful disbursements either led or contributed to the deficiency which the lender is seeking to recover from the appellants, are sufficient to withstand a motion to dismiss, if true, and they are of course assumed to be so for the purpose of considering a motion to dismiss.

Appellees argue that the dismissal should be sustained if any alternative theory supports the dismissal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980), and Jones v. Weaver, 374 So.2d 1175, 1177 (Fla. 1st DCA 1979). As an alternative theory to support the dismissal, appellees argue that the appellants’ delay in filing the third party complaint until years after the foreclosure judgment prejudicially prevents the appel-lees from exercising rights under Fla.R. Civ.P. 1.180 to assert any defenses which the third party plaintiff has against the plaintiff. Appellees concede that the dismissal should be without prejudice if sustained on this ground. We agree with the alternative ground and do not reach the additional alternatives that appellees argue to support the dismissal. See Volkswagen Insurance Co. v. Taylor, 201 So.2d 624, 628 (Fla. 1st DCA 1967), and Watson v. G & C Ford Company, 293 So.2d 101, 103 (Fla. 1st DCA 1974). We affirm and remand with directions to order the dismissal without prejudice to actions other than the third party remedy here invoked.

ERVIN and JOANOS, JJ., concur.


text:
    Van Lee HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. YY-182.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 10, 1981.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Holley appeals his convictions on two counts of accessory after the fact to armed robbery and two counts of accessory after the fact to attempted murder. We must reverse because the wholly circumstantial evidence adduced by the State was insufficient to withstand the defense motion for judgment of acquittal.

Acting on a tip that a robbery was about to take place, police observed Charles Williams and Frank Boyd entering and exiting the bank shortly before an alarm sounded. Within a half hour pursuant to another tip, police went to Holley’s home and saw him get into his automobile with Williams and Boyd as passengers. As the car approached them, plain-clothed detectives jumped in front of it, brandishing firearms. The detectives said they identified themselves as police officers. Shots were fired from the passengers’ side of the car, police returned the gunfire, and the car backed up wildly, hitting a ditch or culvert. The doors flew open and the occupants fled in separate directions. Holley was found lying in a pile of leaves in the woods, a cigarette pack and an unspecified sum of money strewn through the leaves. “Bait money” used by the bank was not recovered.

To prove the crime of accessory after the fact, the State must establish that the defendant did “maintain or assist the principal or accessory before the fact, or give the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment.” Section 777.03 Florida Statutes (1979).

Although the evidence as described above may have been sufficient to convince a jury of Holley’s complicity, it was legally insufficient. The evidence was circumstantial, and “no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 n.12 (Fla.1979) (citations omitted). We cannot overlook the obvious possibility that Holley knew nothing of the robbery, that he was simply driving down the street with his friends when he found himself caught in the crossfire of a gun battle and instinctively fled the scene for his own protection. Therefore, we are obliged to reverse the conviction.

Accordingly, the sentences are vacated and the judgment is reversed.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Anthony CHIARENZA, Appellant, v. STATE of Florida, Appellee.
    No. 80-575.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 16, 1981.
    J. David Bogenschutz of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant was convicted of conspiracy to sell, deliver or possess with intent to sell or deliver over 100 pounds of marijuana. The evidence discloses that he brought together a buyer and seller for which he was to be paid a commission. That evidence consisted in part of tape recordings made by the police by virtue of a transmitter placed in the home of one Alpert, a police informant. Appellant questions the admissibility of those tapes and raises several other issues said to undermine the validity of his conviction. The sole issue of substance on appeal is whether a recording made under police supervision in the home and with the consent of a co-conspirator (other than the defendant) for the purpose of obtaining evidence of a criminal act is admissible.

The warrantless interception of private communications has been the subject of considerable judicial activity in recent times and the rules continue to evolve. The difficulty in each new case results from the fact that a delicate balance must be struck between two competing interests. On the one hand an individual’s right to be free from unreasonable searches and seizures and to enjoy his privacy is a constitutionally guaranteed and fundamental expectation of our democratic society. On the other is the right of society, made up of those same individuals to adopt and enforce rules for the preservation of life, liberty and property.

The precise activity with which we are concerned here is concisely defined in Article I, Section 12 of the Florida constitution. “The right of the people to be secure in their persons, houses, papers and effects against .. . the unreasonable interception of private communications by any means, shall not be violated.”

Amendment IV of the Constitution of the United States, made applicable to the states by the fourteenth amendment, provides similar protection although in different language.

Recent Florida cases make it reasonably clear that activity which is permissible under the federal constitution may well be proscribed by the Florida constitution. See, e. g., State v. Sarmiento, 397 So.2d 643 (Fla.1981).

It is not essential for determination of the present case that we examine each point of departure between the Federal and Florida standards. Suffice to say that the evidence challenged here would be admissible under federal standards. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

It remains to be determined whether such evidence is rendered inadmissible by Article I, Section 12, of the Florida constitution.

We note at the outset that it is only the unreasonable interception of private communications that is proscribed.

An interception is “unreasonable” unless a warrant has been obtained or unless a constitutionally permissible exception has been created. Tollett v. State, 272 So.2d 490 (Fla.1973).

A communication is “intercepted” by “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” § 934.02(3), Fla.Stat. (1979). Obviously one party to a two party communication does not “intercept” that communication, he simply receives it. It would seem to follow, then, that one who receives a communication might record it without committing an interception. However, that is not the rule in Florida. State v. Tsavaris, 394 So.2d 418 (Fla.1981).

Any analysis of the judicial development of the constitutional prohibition against unreasonable interceptions in Florida must go hand in hand with consideration of the statute which specifically prohibits such interceptions and establishes exceptions to the requirement for a warrant.

Prior to 1974, Chapter 934, the Florida Security of Communications Act provided an exception to the requirement for obtaining a warrant where one party to a communication had given consent:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.

§ 934.03(2)(d), Fla.Stat. (1973).

Tollett v. State, supra, construed this statute and Article I, Section 12 of the Florida Constitution to permit the introduction into evidence of an intercepted communication where (1) one party consented to the intercept and (2) the consenting party testified at trial that consent had been given. The first holding in Toliett has been modified by amendment to the statute; the second remains viable.'

The present requirements of the statute had their genesis in an amendment which became effective October 1, 1974. The provisions of that statute pertinent to our inquiry provide in subsection (2)(a)2:

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

The statute therefore basically establishes two categories of exceptions to the warrant requirement (by implication only, since the statute does not expressly speak to the constitutional issues). Those categories are: (1) an interception involving law enforcement officers, requiring the consent only of one party and (2) an interception based upon the consent of all parties.

The Supreme Court has added additional refinements to these exceptions. In State v. Sarmiento, supra, the exception involving law enforcement officers was severely limited. The court, in that case, held that a communication transmitted from the defendant’s home by or under the supervision of law enforcement officers and intercepted or received by a witness outside the home will not be admissible in evidence. The court further held that to the extent the statute could be construed to authorize such an interception without a warrant, the statute must succumb to constitutional attack.

Two types of distinctions were at least temporarily rendered relevant by the Sar-miento rule. The first, and most transient, is the necessity to distinguish between the two forms the end product of such an interception might take. As Justice Alderman later pointed out in his dissent in Hoberman v. State, 400 So.2d 758 (Fla.1981), Sarmien-to excludes testimony of a witness who, stationed outside the defendant’s home, received, heard and would testify concerning the contents of conversations transmitted from within the defendant’s home. A recording of those same transmissions was not necessarily in the same excluded category. In fact, the first district made this very distinction in holding a recording admissible in State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). Even so, the distinction was short-lived. In Hoberman, supra, the Supreme Court determined that such a recording was in the same category as the Sar-miento testimony and was therefore inadmissible.

The second element dealt with in Sar-miento involves the characterization of the geographical location of the intercepting or transmitting device as the defendant’s home. So, too, in Hoberman the defendant’s home was involved. Justice Alderman’s dissents in Sarmiento, Tsavaris and Hoberman analyze the history of and rationale behind the view that constitutional protection should be afforded to persons and not places. Perhaps experience with the new rule will offer guidance #s to the relative wisdom of these two opposing views. Certainly Judge Hubbart’s sentiments in Sarmiento v. State, 371 So.2d 1047, 1051 (Fla. 3d DCA 1979), quoted with approval in the Supreme Court’s per curiam opinion, leave little room for argument by reasonable men:

We are unwilling to impose upon our citizens the risk of assuming that the uninvited ear of the state is an unseen and unknown listener to every private conversation which they have in their homes. That is too much for a proud and free people to tolerate without taking a long step down the totalitarian road. The home is the one place to which we can retreat, relax, and express ourselves as human beings without fear that an official record is being made of what we say by unknown government agents at their unfettered discretion.

It is not impossible, however, to agree with the statement of a fine principle while at the same time disagreeing with the appropriateness of its application to a particular set of facts. It would seem that the “risk” of the uninvited ear is neither increased nor diminished by Sarmiento. The rule simply requires that a warrant be obtained before the ear may legally intrude in this particular fashion. Even without a warrant the ear may intrude in the form of an undercover agent or a confidential informant or any number of persons who are present with the defendant in his home when the conversations take place. They may listen and testify with impunity. But if a transmitter is used to penetrate the walls, then a bystander with a receiver a few feet away may neither testify nor offer into evidence his recording of the conversation. This is said to be for the reason that the defendant, in the sanctity of his home, has a reasonable expectation of privacy vis a vis one transmitter but not vis a vis a roomful of undercover agents. Such a distinction may require the drawing of a line which may be too fine to be seen by ordinary reasonably prudent men.

There is one other factor that may merit concern. To reiterate, Sarmiento distinguishes between transmissions from the defendant’s home and those from other locations, protecting only the former from interception by or under the supervision of law enforcement personnel. The inquiry which immediately suggests itself is: when does a home cease to be a home? Conversely, does any building in which a criminal defendant takes up lodging, either on a temporary or on a semi-permanent basis, suddenly become insulated by Sarmiento? According to Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974), the rights and privileges guaranteed by the Constitution to occupants of private dwellings must be accorded with equal vigor to transient hotel or motel guests. One supposes that something of the sanctity of the home, whether temporary or permanent, is or should be lost, or at least risked, where a “dwelling” becomes the head office, warehouse and sales outlet for a drug operation. There is no question but that Sarmiento’s home was also his business. Perhaps that should make a difference.

In the present case the interception occurred under police supervision in a place other than appellant’s home. Neither Sar-miento nor Tsavaris nor Hoberman proscribe the activity which produced the recorded conversations which were admitted into evidence here.

Accordingly, finding no error on that point and determining that the remaining issues raised by appellant are without merit, we affirm.

AFFIRMED.

HURLEY, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I fully concur in the majority opinion as to all of the issues except that issue involving the admissibility of the tapes. On that issue my views are the same as those expressed in an opinion filed in the case of Morningstar v. State, 405 So.2d 778 (Fla. 4th DCA 1981).


text:
    SEA TOWER APARTMENTS, INC., a Florida Corporation; Norman Bradley and Kathryn Fitchett, a widow, individually and as representative of a class, Appellants/Cross-Appellees, v. CENTURY NATIONAL BANK, formerly known as Coral Ridge National Bank, a banking corporation, as Trustee for Sea Tower Land Trust; Alma Deering Freedman and Patricia Deering, Appellees/Cross-Appellants.
    No. 80-1929.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 15, 1981.

      Robert J. O’Toole, Fort Lauderdale, for appellants/cross-appellees.
    Herbert L. Gildan of Nason, Gildan & Yeager, P.A., West Palm Beach, for appel-lees/cross-appellants.
   PER CURIAM.

At issue is whether the trial court erred in granting a motion for involuntary dismissal against the appellants who sought to invalidate a provision in their lease with appellees which provided that the annual rental was to be adjusted at five year intervals in accordance with any increases in a national index of wholesale prices.

Initially, we agree with appellants that the trial court was obligated to treat the appellees’ motion for involuntary dismissal, made at the conclusion of the presentation of appellants’ case at the bench trial, in the same manner as a motion for directed verdict made in a jury trial. Panet v. Rexod Corp., 345 So.2d 825 (Fla. 4th DCA 1977). The trial court is not entitled to weigh the evidence or resolve conflicts of facts or issues of credibility upon a motion for involuntary dismissal. Further, the trial court should not consider whether the claimant has met his burden of proof, but rather should determine only whether the claimant has submitted a prima facie case. Panet v. Rexod, supra. If it is determined that the claimant has submitted competent proof on each element of the cause of action pleaded then a motion for involuntary dismissal must be denied. Upon review of the record here, however, and with particular concern for those portions cited by appellants, we find no violation of this principle by the trial court.

More importantly our review of the evidence presented by appellants also provides support for the trial court’s determination that appellants failed to establish a prima facie case. The elements of a cause of action for unconscionability are set out in this court’s decision in Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865 (Fla. 4th DCA 1981). In Kohl we noted that there is nothing intrinsically unfair in the mere presence of a clause in a rental agreement providing for an increase in rents based upon some appropriate measure of increase in the cost of living. However, the appellants, other than establishing the presence of such a clause, failed to submit proof of the other elements of unconscionability. Kohl, supra. In addition, proof was submitted in the appellants’ case-in-chief which tended to indicate, contrary to appellants’ allegations, that the increase in rent that occurred as a result of the cost of living clause was foreseeable. We also reject appellants’ contention that the absence of a cap on any rental increase in combination with a provision for a fixed minimum rent is unconscionable per se.

Accordingly, having reviewed the record and the evidence submitted by appellants and finding no error in the trial court’s ruling, the judgment is hereby affirmed.

ANSTEAD and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Arthur Vernon SMITH, Appellant, v. Jacqueline Tessier SMITH, Appellee.
    No. 80-2197.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    James A. Helinger, Jr., Clearwater, for appellant.
    Thomas Saieva of Woodworth & Saieva, P. A., St. Petersburg, for appellee.
   PER CURIAM.

The judgment of dissolution is affirmed except in one minor particular. Among other directives the court ordered the payment of rehabilitative alimony to the wife for a period of two years. If at the end of the two years the husband has fully complied with this obligation the court will lose jurisdiction to make any further award of alimony. Brown v. Brown, 338 So.2d 916 (Fla. 2d DCA 1976). The record in this case reflects that the wife had undergone surgery for cancer. Her physician testified that while she does not now have cancer, there is a significant risk of the disease recurring at a later date. Under these circumstances we hereby amend the final judgment to include a reservation of jurisdiction which will permit the court at any future time to award additional alimony which may be dictated by changes in the circumstances of the parties. Greene v. Greene, 256 So.2d 258 (Fla. 3d DCA 1972); Melton v. Melton, 251 So.2d 705 (Fla. 1st DCA 1971).

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


author: SCHEB, Chief Judge.

text:
    Thomas ANKERS, Jr., a minor, by and through his father and mother, Thomas Ankers and Ann Ankers, and Thomas Ankers and Ann Ankers, individually and jointly, Appellants, v. DISTRICT SCHOOL BOARD OF PASCO COUNTY, Appellee.
    No. 81-280.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Horace A. Knowlton, III, Chris W. Alten-bernd and Barbara J. Paulson of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.

      Joe A, McClain of McClain & Hobby, Dade City, for appellee.
   SCHEB, Chief Judge.

This appeal presents one issue: whether appellants’ complaint stated a cause of action for negligence against the appellee school board.

Appellant Thomas Ankers, Jr., and his parents sued the District School Board of Pasco County. Their complaint alleged that Thomas, a student at Land-O-Lakes High School, sustained serious injury to the fingers of his left hand while working with a bench saw in the shop room during his lunch period. These injuries, appellants alleged, resulted from the school board’s negligent maintenance and supervision of the saw and the area surrounding it. Alternatively, the complaint asserted that the ap-pellee school board was negligent in failing to have a teacher present in the area or in failing to prevent students from entering the shop room when instructional personnel were absent, and in failing to instruct students in the use of the saw and related safety equipment.

Appellee moved to dismiss the complaint on ground that it failed to allege facts establishing the relationship between the parties from which the school board’s duty to avoid negligence had arisen. The trial court granted the motion and dismissed the complaint with prejudice. This appeal ensued.

To sustain a cause of action in negligence, a complaint must allege ultimate facts which establish a relationship between the parties giving rise to a legal duty on the part of the defendant to protect the plaintiff from the injury of which he complains. It must also show that the defendant negligently breached that duty, and that the plaintiff’s injury was proximately caused by the defendant’s negligence. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); 23 Fla. Jur. Negligence § 101 (1979). The allegation that the minor plaintiff was in attendance at the school when the accident occurred was sufficient to demonstrate the relationship between the school board and Thomas giving rise to a duty. A school board is not an insurer against a student being injured. It is, however, entrusted with the care of the students and has a legal duty to properly supervise student activity. Benton v. School Board of Broward County, 386 So.2d 831 (Fla. 4th DCA 1980); Barrera v. Dade County School Board, 366 So.2d 531 (Fla. 3d DCA 1979).

Appellee asserts, as it did in the trial court, that appellants’ complaint is insufficient because it fails to allege that the minor plaintiff was under school supervision at the time of the accident. We disagree. The fact that the complaint did not state that a teacher or other representative of the school board was supervising the plaintiff or that he was undergoing instruction at the time of the accident does not defeat this relationship. A cause of action in negligence encompasses not only negligent acts, but the negligent failure to act as well. Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981).

We hold that appellants’ complaint stated a cause of action. Of course, we are not passing on the merits of their claim. Accordingly, we reinstate appellants’ complaint and remand for further proceedings consistent with this opinion.

BOARDMAN and OTT, JJ., concur.


author: RYDER, Judge.

text:
    Robert E. HUGHES, Petitioner, v. STATE of Florida, OFFICE OF THE COMPTROLLER, Respondent.
    No. 81-281.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.

      George W. Greer, Clearwater, for petitioner.
    Walter W. Wood, Asst. Gen. Counsel, Tallahassee, for respondent.
   RYDER, Judge.

Robert E. Hughes appeals from the suspension of his mortgage broker’s license, arguing the findings of the hearing examiner were not supported by competent substantial evidence. We agree and reverse the suspension.

Respondent Department of Banking and Finance noticed petitioner of its intent to revoke his license, alleging violations of chapter 494, Florida Statutes. The complaint alleged that petitioner made misrepresentations, evidenced a lack of honesty, conducted a course of business in violation of the statute, permitted a mortgagor to sign documents in blank and was guilty of negligence and incompetence in a mortgage transaction.

At a formal hearing, testimony indicated that petitioner was employed by United Companies Mortgage and Investment (UCMI) of St. Petersburg as principal mortgage broker from 1977 to 1979. Petitioner served as broker for a mortgage closing between UCMI and James G. Anderson and Lorraine Anderson. Anderson testified that he intended to purchase a residence at 11th and 20th Avenues South when, in fact, the transaction involved a house on 27th Avenue South. Anderson was not married at the time of the closing, and did not invest any of his own money in the property.

Hughes testified that the transaction took less than a week. Most of the information came from Anderson’s employer, Hughes testified that all he did was check the property, call his principal in Baton Rouge, order an appraisal, take the contract for sale to the title company, prepare a letter for the home office, and attend the closing. The proceeds check was signed by Hughes and a Mrs. Campbell. At the time of closing, the property was being repaired. Following the closing, the mortgage became delinquent and foreclosure proceedings began. As a result of the transaction, Hughes was dismissed by UCMI. UCMI also brought an action against the title company on the title insurance policy. Anderson denied that he had purchased the property in question.

The hearing officer found:

In proceeding with the closing of the house being sold to Anderson, petitioner knew, or by the exercise of reasonable diligence should have known, that Anderson was making no financial investment in this property other than the mortgage, and that petitioner’s principal was taking a note secured by a mortgage considerably more than the fair market value of the property. By placing his principal in such a position of risk, there was a very real probability that a principal would suffer the financial loss which incurred in this transaction. Petitioner concealed material facts from UCMI which should have been disclosed. Had the fact that Anderson had put none of his own money into the purchase been made known to UCMI, it is extremely unlikely they would have approved the loan secured by the mortgage.

The Department adopted the findings, issued its final order and suspended petitioner’s license for a period of six months.

The findings of the hearing examiner must be supported by competent substantial evidence. Section 120.68(10), Florida Statutes (1979). We are unable to find support for the examiner’s findings below in the evidence presented at the hearing. Respondent points to no testimony that the fair market value of the property was less than the mortgage. No documents or testimony showed the petitioner knew at the time of closing that Anderson was making no investment in the property. No representative of UCMI testified to what petitioner disclosed to them, thus the finding that petitioner “concealed material facts” is baseless. No testimony indicated that UCMI would have disapproved the loan if they knew Anderson put up no money. In short, the findings below are a list of assumptions without record support.

Holding there is no competent substantial evidence supporting the findings, we set aside the order suspending petitioner’s license, and remand with instructions to dismiss the administrative complaint.

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


author: Ott, Judge.

text:
    Joseph SELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 81-847.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   Ott, Judge.

The trial court retained jurisdiction over the first one-third of appellant’s sentence but failed to specify his reasons therefor as mandated by section 947.16(3), Florida Statutes (1979).

Accordingly, the judgment and sentence are affirmed but that part of the judgment and sentence which retains jurisdiction over the first third of the sentence is vacated. When remanded the trial judge may reimpose retention of jurisdiction over no more than the first one-third of the sentence by setting forth in such order his specific reasons supported by the record. § 947.-16(3)(a), Fla.Stat. (1979). LaChance v. State, 396 So.2d 1234 (Fla.2d DCA 1981); Tompkins v. State, 386 So.2d 597 (Fla. 5th DCA 1980).

Judgment and sentence AFFIRMED; order of retention VACATED; and case REMANDED with directions.

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


text:
    Raymond Russell FORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-907.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm without prejudice to appellant’s raising the question of illegality of his sentence under the rule of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). See Norris v. State, 407 So.2d 997 (Fla. 2d DCA 1981).

BOARDMAN, A. C. J., and RYDER and DANAHY, JJ., concur.


author: OTT, Judge.

text:
    Benjamin ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1219.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
   OTT, Judge.

Appellant entered pleas of nolo conten-dere to charges of (1) possession of cannabis and (2) importation of a controlled substance. Sentencing was deferred and he was granted probation for a period of five years on each charge, to run concurrently. A condition of probation was that he serve two years in prison on each charge, also to run concurrently.

After appellant had been confined some five months, the disposition of his case was “corrected” in an effort to comply with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In that case our supreme court ruled that incarceration, either as a condition of probation or as a sentence to be followed by probation, cannot legally equal or exceed one year. That rule was expressly given retroactive effect, and the parameters of discretion in correcting any nonconforming disposition were clearly defined: (1) the original disposition can be modified to make it legal, or (2) it can be vacated, in which case the court is free to sentence the defendant to a term of confinement. If the defendant is on probation, and has not violated the terms thereof, the term of confinement cannot exceed the original term of probation (or incarceration plus probation if a true split-term sentence has been imposed). If probation has been violated, the court can order the confinement of the defendant for any term that does not exceed the statutory maximum penalty for the crime in question.

Here, the court withdrew its order for probation and proceeded to sentence appellant to:

One (1) year in state prison as to Count I and four (4) years probation to begin upon release from state prison and one (1) year in state prison as to Count II to run consecutively with state prison sentence in Count I and four (4) years probation to run concurrently with probation in Count I for a total of two (2) years in state prison and four (4) years probation at expiration of state prison sentence.

The corrective order exceeds the Vil-lery restrictions in two respects. First, the one year of imprisonment is one day too much. Each sentence must be corrected accordingly.

Second, the total imprisonment/probation time for the two offenses is six years. Since appellant had not violated the original order for probation, the sentences imposed after probation was withdrawn (not revoked) could not exceed five years, the original probationary term.

Appellant’s main complaint is that the court ordered his confinement time to run consecutively on the two sentences, whereas the original grant of probation ordered the terms thereof to run concurrently. He asserts error on the grounds (1) that the court had no power to make that change under the Villery rule, and (2) section 921.16, Florida Statutes, does not authorize a sentence running both consecutively and concurrently to another sentence.

We find no merit in the first point. When probation is revoked, the court can proceed to impose any punishment permitted by law for that crime. That the probationary terms for two offenses were concurrent does not mandate concurrent sentences when probation has been violated.

We perceive no difference in principle, and thus none in result, where probation is withdrawn because it is illegal. In ordering a new disposition of the case, the court should and does have all the options originally available to it when the defective order was made. The probation order has ceased to exist, save for only Villery’s limitation that imprisonment and/or probation could not be imposed for a period exceeding the original term of probation. The sole consequence of the original direction that the probationary terms on the two offenses should run concurrently was that the combined term was not ten years but five. So long as the court observes that overall limitation, and the incarceration for any one offense is less than one year, the requirements of Villery have been met.

With regard to the second point, we think that section 921.16, Florida Statutes, is not controlling. There is, to be sure, a statement in Rozmester v. State, 381 So.2d 324, 326[3] (Fla. 5th DCA 1980) that the statute permits consecutive or concurrent sentences, but not a combination. That case, however, and the cases on which it relies, involved “interrupted sentences,” such as we condemned in Massey v. State, 389 So.2d 712 (Fla. 2d DCA 1980). No interruption is possible here. Consequently, we are of the opinion that that principle does not apply here.

As presently ordered, appellant’s sentence on the second offense does not commence until the termination of the “prison time” on the first sentence. However, since that is a definite time, the sentence would not transgress the familiar rule that the date of commencement of a sentence cannot be vague or uncertain. See Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975).

Other than the two noted infractions of the Villery rules, we find no illegality in the disposition presently ordered by the court. It is, however, somewhat awkward. The first year, less a day, appellant will be serving his prison time for the first offense. The second year, he will be on probation for the first offense, serving his prison time for the second offense, and also on probation for the second offense. Upon remand, the court might consider some simple solution to all these problems, such as a grant of five years probation on each charge, to run concurrently. Commitment for 364 days could be imposed as a condition of probation on each offense, to run consecutively. The edicts of Villery would thus be met and any possible inconsistency under section 921.16, Florida Statutes, which pertains to sentencing, would be avoided.

The judgment of conviction is AFFIRMED. The sentence is VACATED and the case is REMANDED to the trial court for resentencing in compliance with the dictates of Villery.

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

      . We construe the order under review as ordering that probation on the first offense commence upon appellant’s “release” after serving the prison term for the first offense — a merely theoretic release, since he will immediately commence serving the prison term for the second offense. If probation were not to commence until after completion of all the prison time, there might be a gap in disposition as to the first offense. We venture no opinion on whether that gap would result in an impermissible “interrupted sentence.”


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. James LEWIS, Appellee.
    No. 81-1342.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Durand J. Adams of Adams, DeVilbiss, Vorbeck & Wood, Bradenton, for appellee.
   GRIMES, Judge.

The state challenges an order granting a motion to suppress.

Deputy Sheriff Dickinson and Assistant State Attorney Coggin were in a patrol car parked outside the Crown Lounge in Sarasota at 1:15 in the morning. They noticed a man come out of the lounge, which was still open, and walk to the rear of a pickup truck. He pushed aside a fishnet and took a large red toolbox out of the bed of the truck. He then went immediately to an El Camino pickup truck which was parked about 20 feet away with its motor running. He threw the toolbox in the passenger compartment and jumped in beside it. The truck then pulled away rapidly, reaching a speed of 45 to 50 miles per hour before it left the parking lot. As it drove down the street, it swerved erratically across the center line several times. By this time, Dickinson and Coggin were following, and they pulled the El Camino over. There were two men in the truck, one of whom was appellee, the driver. After questioning, the deputy arrested them for stealing the toolbox.

The court granted the motion to suppress on the premise that the deputy did not have a founded suspicion upon which to base the stop of appellee. In making his ruling, the judge noted that everything Dickinson and Coggin had observed was as consistent with innocence as it was with guilt because they had no way of knowing whether appellee or his companion owned the toolbox. If it were a question of guilt or innocence, the court’s comments might have been well taken. However, the question here is simply whether the deputy had a well-founded suspicion that appellee had been engaged in criminal activity. Taylor v. State, 384 So.2d 1310 (Fla. 2d DCA 1980); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977). We are convinced that he did.

Deputy Dickinson saw more than the simple transfer of a toolbox from one vehicle to another. Appellee was ready with the motor running when his accomplice threw the toolbox into the vehicle. Contrary to what might have been expected, the toolbox was not placed in the bed of the El Camino but rather was put in the single-seat passenger compartment along with the two occupants. The truck immediately pulled away at a high rate of speed and was driven in an erratic manner. Ap-pellee contends that the manner in which the vehicle was driven is irrelevant because the evidence reflects that Deputy Dickinson had decided to stop the vehicle once he saw the toolbox taken. However, for purposes of deciding whether there is sufficient evidence to support a well-founded suspicion, a court should consider all of the facts known to an officer up until the time he makes the stop. For aught we know, if appellee had driven his vehicle in a responsible manner, the deputy might have changed his mind about making the stop.

This is not a case of an appellate court second-guessing the trial judge. The evidence here was entirely undisputed. The trial judge, himself, observed that he would have been inclined to deny the motion were it not for his recollection of the case of Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977), in which this court reversed his denial of a motion to suppress. Yet, in Lower the only justification given for the stop was that an automobile which had been parked in a business area parking lot at night after closing hours pulled away at a faster than normal rate of speed (but not in excess of the speed limit) when a police cruiser drove by. Thus, unlike the present case, there were no facts which would elicit the reasonable suspicion that the occupants of the vehicle had committed or were about to commit a crime.

We reverse the order granting the motion to suppress and remand the case for further proceedings.

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


author: HOBSON, Acting Chief Judge.

text:
    Bobby Joe HILL, Appellant, v. STATE of Florida, Appellee.
    No. 81-634.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1981.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Bobby Joe Hill appeals his conviction and sentence for aggravated battery. Specifically, he objects to the introduction in evidence of clothing worn by the alleged victim on the ground that the State did not disclose or permit him to inspect the clothing prior to trial as required under Florida Rule of Criminal Procedure 3.220(a)(l)(vi).

At trial, appellant informed the court that the state had violated a rule of discovery. The court inquired of appellant’s counsel as to whether the violation had prejudiced appellant, but did not conduct the required inquiry under the standards set out in Richardson v. State, 246 So.2d 771 (Fla.1971).

The trial court also placed the burden of showing prejudice on appellant. In situations of this nature, the burden is on the State to show that there has been no prejudice to a defendant by a discovery violation. Cumbie v. State, 345 So.2d 1061 (Fla.1977).

Accordingly, the judgment and sentence are reversed and the cause remanded for a new trial.

REVERSED and REMANDED.

BOARDMAN and GRIMES, JJ., concur.