author: McCORD, Judge.

text:
    Franklin ROUSE, Appellant, v. WYLDWOOD TROPICAL NURSERIES and Ohio Casualty Insurance Company, Appellees.
    No. AG-186.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Howard L. Silverstein of Silverstein & Heilman, Miami, for appellant.
    Robert C. Pickford of Parkhurst, Pickford & Carlson, Fort Lauderdale, for appellees.
   McCORD, Judge.

Appellant appeals a clarification order entered by the deputy commissioner pursuant to a mandate of this Court. We reverse.

On January 16, 1981, this Court reversed the deputy commissioner’s order in this case and remanded to the deputy commissioner to clarify his reasoning for accepting one doctor’s opinion as to maximum medical improvement over that of the other doctors and for finding a three percent permanent partial disability when the medical evidence indicated that appellant had suffered either a zero percent or a ten percent permanent impairment. Rouse v. Wyldwood Tropical Nursery, et al., 392 So.2d 370 (Fla. 1st DCA 1981). The court also directed the deputy commissioner to state whether his finding of disability was based on physical impairment or diminution of wage-earning capacity.

In his clarification order, the deputy commissioner stated that he accepted the one doctor’s opinion over that of another doctor, because the other doctor has a reputation for being extremely liberal in his ratings, and, therefore, his opinions must be discounted. The deputy commissioner also apparently gave no consideration to the testimony of another doctor who also found that appellant had suffered a ten percent permanent impairment because that doctor was a general practitioner rather than an orthopedic surgeon. Under the facts of this case, the explanation does not provide a valid reason for accepting the one medical opinion of zero disability over the opinions of the other two doctors and compromising the result at three percent permanent impairment. In the clarification order, the deputy commissioner further stated that his finding of a three percent permanent partial disability is an anatomical rating arrived at after considering all the medical opinions and appellant’s testimony as to his condition and limitations. The record does not contain competent substantial evidence to support that finding. There is competent substantial evidence in the record to support a finding of a ten percent permanent partial disability and that maximum medical improvement occurred on May 25, 1979. We, therefore, reverse and remand for entry of an award accordingly.

Appellant contends that the deputy commissioner erred in failing to render an award based on loss of wage-earning capacity. However, the evidence is insufficient to show a loss of wage-earning capacity beyond the ten percent anatomical disability. Thus, we find no error in that regard.

REVERSED and REMANDED for entry of an order consistent with this opinion.

SHIVERS and WIGGINTON, JJ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linda C. BROWN and Ernest Brown, Appellants, v. Ralph W. NIMMONS, Jr., Appellee.
    Nos. AG-425, AH-57.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, for appellants.

      Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial judge ordered appellants, who were charged with racketeering violations, to give handwriting exemplars, properly rejecting their assertion that such violated their constitutional privilege against self-incrimination. Appellants failed to comply with the trial court’s order and were prosecuted for indirect criminal contempt pursuant to Rule 3.840, Fla.R.Crim.P. They were adjudged guilty of contempt and sentenced to four months. On appeal, appellants contend for the first time that the charges upon which the order to show cause issued were insufficiently verified. Appellants also contend that the imposition of a four-month sentence constitutes cruel and unusual punishment. We find both contentions to be without merit and therefore affirm.

The state concedes that the commitment orders erroneously include the surplus phrase “at hard labor”. That phrase is hereby stricken. In all other respects, the sentences are affirmed.

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


author: JOANOS, Judge.

text:
    ERB BUILDING SYSTEMS and American Centennial Corp., Group Insurance, Appellants, v. Vincent A. CROWE, Appellee.
    No. AH-237.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Bradford L. Jefferson of Brennan, McAli-ley, Hayskar, McAliley & Jefferson, P. A., Fort Pierce, for appellants.
    Patrick 0. Helm of Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & De Castro, P. A., West Palm Beach, and Joseph C. Segor, Miami, for appellee.
   JOANOS, Judge.

The employer/carrier appeal from a workers’ compensation order finding the claimant’s injury to be causally related to his employment and awarding temporary total disability benefits. We affirm.

The deputy commissioner heard the evidence and resolved the conflicts in favor of the claimant. Claimant showed a logical cause for his chondromalacia (roughening of cartilage in the knee) was the twisting of his knee while standing up from a kneeling position on a roof. The carrier put forth no evidence as to a more logical cause for the injury. Therefore, the “logical cause” doctrine is applicable and this claim is compensable. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970).

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    WATKINS MOTOR LINES, INC. and Employers Insurance of Wausau, Appellants, v. William PRIVETTE, Appellee.
    No. AI-5.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Robert C. Barrett of Cooper & Rissman, P. A., Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal an award of temporary total disability benefits and attorney’s fees. We reverse.

Claimant, a truck driver, sustained a com-pensable industrial accident on July 30, 1980, when a 600 pound drum slipped and pinned his right hand against the side of the truck. The claimant visited a doctor. Surgery was recommended, but the claimant refused on the grounds that he could not live on workers’ compensation payments for the six to eight weeks required for recovery. He continued to work until February of 1981, at which time he quit because his hand was too painful. After leaving his job with the employer, the claimant made several trips as an owner/operator.

The claimant sought temporary total disability benefits from February 21, 1981, the day he stopped working for the employer, until June 15, 1981. The deputy found that there was no medical evidence that the claimant was unable to work during this period, but that he had made a “conscientious effort” to return to work, and tried to work on several occasions but was unable to do so. The deputy awarded temporary total disability benefits for the entire period, “with the exception of when he did work, or tried to work, during that period of time.” The deputy also found that claimant’s attorney was entitled to a reasonable attorney’s fee, reserving jurisdiction to determine the amount at a later date.

The deputy’s finding that there was no medical evidence that claimant was unable to work during the period for which benefits were sought is supported by the evidence. His finding that claimant had made a “conscientious effort” to find work, however, is not. The claimant testified that the pain in his hand made it impossible for him to drive or handle cargo. Consequently, his attempts to obtain employment as a truck driver, or warehouse worker, cannot be considered evidence of a good faith work search. Where there is no medical evidence that a claimant is unable to work, he must seek work within his physical capabilities. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981).

Additionally, it was error for the deputy to determine that claimant’s attorney was entitled to a reasonable attorney’s fee in this case. The claim was for temporary total disability benefits only, the carrier accepted the accident as compensable, and no evidence was introduced which would tend to show that the carrier acted in bad faith. Section 440.34(3), Florida Statutes (1980); Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

REVERSED and REMANDED.

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.


text:
    CITY OF TAMPA, Appellant, v. George R. CARTER, Appellee.
    No. AI-254.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Joseph G. Spicola, Jr., City Atty., and Stephen M. Barbas, Asst. City Atty., for appellant.
    Bruce A. Campbell, Melendi & Campbell, Tampa, for appellee.
   PER CURIAM.

The order appealed from is reversed, and the cause remanded for reconsideration in light of our opinion in City of Tampa v. Bartley, 413 So.2d 1280 (Fla. 1st DCA 1982).

Should the deputy find it necessary to take additional testimony in order to determine that portion of the employer’s contribution to the claimant’s pension plan attributable to the longevity benefits which have not yet vested, he is free to do so.

REVERSED and REMANDED.

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.

      . Filed after entry of the order appealed from.


text:
    STATE of Florida, Appellant, v. Larry Allen SUTTON, Appellee.
    No. AI-387.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellant.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   JOANOS, Judge.

The State appeals an order granting Ap-pellee’s motion to dismiss an information as being defective in that the element of knowledge was not alleged. We reverse.

It was alleged in the information that Appellee, an inmate at Florida State Prison, had in his possession or under his control a weapon, specifically a homemade knife. The allegations tracked the language of Section 944.43, Florida Statutes (1979) and Fla.Admin.Code Rule 33-3.06. In a search of appellee’s cell, officers had found a plexiglass knife about nine and a half inches long concealed in a box which was allegedly labeled with appellee’s name and allegedly contained his property. In the motion to dismiss the defense contended that certain deposition testimony showed that the charge was actually based on constructive possession, therefore the information was deficient in failing to allege that appellee had knowledge of the contents of the box. The trial court granted the motion to dismiss, ruling that the information was defective for failure to include the word “knowingly,” even though the information tracked the language of the statute.

The primary authority cited in support of the trial court’s ruling is Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977), in which an inmate had been found guilty of possession of marijuana and introduction of contraband into a state correctional facility. The contraband had been found concealed in Doby’s wheelchair. This court reversed the denial of a motion for judgment of acquittal, determining that the evidence was insufficient to show Doby knew the marijuana was in the chair. “When the premises on which contraband is found are not in the defendant’s exclusive control the State must prove the defendant knew of the contraband.” Id.

The Doby case does not control in the instant situation. There is an obvious difference between the sufficiency of proof and the adequacy of allegations in an information. In the instant case, it was enough to allege the element of possession. While the State will have to present sufficient evidence to prove either actual or constructive possession and will have to prove knowledge if constructive possession is the theory relied on, possession is the essential element rather than knowledge. The sufficiency of the proof of possession is not an issue here.

“[A]n information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy.” State v. Dilworth, 397 So.2d 292 (Fla.1981). The information in the present case meets this test of legal sufficiency. Appellee points out that in State v. Covington, 392 So.2d 1321 (Fla.1981), the court held inadequate an information which tracked the language of the statute, which was couched in broad general terms, but gave no supplemental description of the alleged misconduct. The allegations in Covington, dealing with “fraudulent transactions, practices, or course of business [were] not specific enough to inform a defendant of what he allegedly did wrong.” 397 So.2d at 294. The allegations in the instant case are sufficient to inform appellee of what he allegedly did wrong.

A defendant may obtain a statement of particulars “when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense.” Fla.R.Crim.P. 3.140(n). The Florida Supreme Court in Dilworth noted:

With the advent of Florida’s liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document. While these discovery tools generally cannot cure a fatally vague charging document, they do reduce the danger of a defendant’s being in doubt as to the specifics of his alleged wrongdoing or of his being subjected to a new charge arising from the same act.

The order granting the motion to dismiss is REVERSED and the case is REMANDED for further proceedings in light of this opinion.

LARRY G. SMITH and THOMPSON, JJ., concur.

      . Section 944.43 Florida Statutes (1979) provides:
      Possession of a weapon; penalty. — Every prisoner committed to the custody of the department who, while in such custody, possesses or carries upon his person or has under his control any instrument or weapon of any kind or any explosive substance, contrary to any rule or regulation promulgated by the department, is guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.
      Fla.Admin.Code Rule 33-3.06(2) provides:
      No inmate shall have in his possession or under his control any firearm or any instrumentality customarily used or designed to be used as a dangerous weapon, or any explosive substance. Inmates may use such tools and implements as are assigned to them by and under the supervision of authorized personnel.


author: THOMPSON, Judge.

text:
    James Maurice JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AJ-231.
    District Court of Appeal of Florida, First District.
    July 8, 1982.

      William H. Sheppard and Daniel A. Smith of Sheppard & Carithers, Jacksonville, for appellant.
    Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   THOMPSON, Judge.

Defendant entered a plea of guilty to failure to appear, contrary to § 843.15, Fla. Stat. (1981). During the sentencing hearing the trial court heard testimony which was obtained from an intercepted wire communication. Over defense counsel’s objection, the trial court refused to require disclosure under § 934.09(8), Fla.Stat. (1981) of the court order and accompanying application under which the interception was authorized or approved before allowing such testimony. The trial court found that disclosure under § 934.09(8) was not required for the purposes of the sentencing hearing. At the close of the sentencing hearing, the trial court adjudicated defendant guilty of failure to appear and sentenced him to four years imprisonment. Defendant contends that the trial court erred in hearing and considering the testimony which was derived from an intercepted wire communication without requiring disclosure pursuant to § 934.09(8). We agree.

The issue to be resolved is whether a sentencing hearing is a “trial, hearing, or other proceeding” within the meaning of § 934.09(8), Fla.Stat. Section 934.09(8) is for all intents and purposes identical to 18 U.S.C. § 2518(9) (1976), State v. Albano, 394 So.2d 1026 (Fla. 2d DCA 1981). Therefore, federal decisions interpreting the federal statute are instructive in determining the meaning of § 934.09(8). See generally, Hicks v. State, 359 So.2d 475 (Fla. 1st DCA), cert. denied, 364 So.2d 886 (Fla.1978). The legislative history of 18 U.S.C. § 2518(9) indicates that a “proceeding” includes all adversary type hearings and would include “a trial itself, a probation revocation proceeding, or a hearing on a motion for reduction of sentence.” S.Rep.No. 1097, 90th Cong., 2d Sess. (1968), reprinted in [1968] U.S.Code Cong. & Ad. News, 2112, 2194, 2195. It is therefore clear that a sentencing hearing is a “proceeding” within the federal counterpart to § 934.09(8). We see no reason why the same interpretation should not be given to § 934.09(8). Accordingly, we hold that a sentencing hearing is a “proceeding” within the meaning of § 934.09(8), Fla.Stat.

The trial' court erred in admitting testimony at the sentencing hearing which was derived from an intercepted wire communication, without requiring the disclosure provided for by § 934.09(8). Defendant’s sentence is therefore vacated and the cause is remanded for resentencing consistent with this opinion.

LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Willie CULVER, Appellant, v. STATE of Florida, Appellee.
    No. AL-227.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Willie Culver, pro se.
    No appearance for appellee.
   JOANOS, Judge.

Culver appeals from the trial court’s denial of his motion for post-conviction relief. We affirm.

Appellant alleges that he was not brought to trial within 180 days as required by Rule 3.191, Florida Rules of Criminal Procedure, and that his attorney overlooked this matter. Because of this, he further alleges that he was denied effective assistance of counsel. However, the record shows that the state attorney and appellant’s defense counsel submitted affidavits to the trial court stating that appellant had waived his right to speedy trial in order that polygraph examinations might be taken. The stipulation waiving speedy trial bears a date two days after the 180-day period had run. However, the affidavits submitted by counsel reveal that the date was incorrectly typed in and that the stipulation had occurred prior to the running of the speedy trial period.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    William THOMAS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-314.
    District Court of Appeal of Florida, First District.
    July 8, 1982.

      William Thomas, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee’s motion to dismiss has been treated as appellee’s answer brief. Upon consideration of appellant’s initial brief, the accompanying appendix and appellee’s answer brief, the Court affirms the action of the Florida Parole and Probation Commission.

McCORD, SHIVERS and JOANOS, JJ., concur.


text:
    In the Interest of S. W., a/k/a S. M., a child.
    No. 81-2497.
    District Court of Appeal of Florida, Second District.
    July 9, 1982.
    Anthony N. DeLuccia, Jr., Dept, of Health and Rehabilitative Services, Fort Myers, for appellant.
   PER CURIAM.

The trial judge’s order, read in conjunction with his transcribed statements made at the time of the hearing, manifests an intent to terminate jurisdiction over the child pursuant to section 39.41(6)(a), Florida Statutes (1981). We therefore affirm.

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


text:
    STATE of Florida, Petitioner, v. Karen N. McCLENNAN, Respondent.
    No. 82-1074.
    District Court of Appeal of Florida, Second District.
    July 9, 1982.
    E. J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for petitioner.
    Charles R. Mayer, Highland City, for respondent.
   PER CURIAM.

The notice of appeal herein, from an appellate decision of the circuit court, is treated as a Petition for Writ of Certiorari. Certiorari is hereby denied.

RYDER, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: WENTWORTH, Judge.

text:
    Colleen PETROSKE, Appellant, v. WORTH AVENUE BURGER PLACE & Corporate Group Services, Appellees.
    No. AG-67.
    District Court of Appeal of Florida, First District.
    July 13, 1982.

      Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Harry D. Robinson, West Palm Beach, for appellees.
   WENTWORTH, Judge.

This workers’ compensation claimant appeals an order of the deputy commissioner finding that her injury was the result of a non-compensable accident. We reverse.

The claimant fell and was injured when she stepped in a pothole in the driveway abutting the employer’s place of business. This driveway led to the rear entrance of the place of employment and the accident occurred just as claimant was about to enter the building through that door, as was her normal custom.

The deputy commissioner found that the “special hazard” exception to the “going and coming rule” did not apply because the driveway was not owned by the employer and was used by other tenants in the building which housed the employer’s business. He also stated that the special hazard doctrine did not apply because the driveway was not the sole route to the place of employment, since the claimant could have entered through the front door.

Whether or not the route on which the accident occurred was the sole means of ingress and egress to the place of employment has no conclusive bearing on whether or not the special hazard doctrine is applicable. Naranja Rock v. Dawal Farms, 74 So.2d 282 (Fla.1954). Nor does the fact that the accident occurs on a site leased by the landlord and shared with other tenants, in and of itself, preclude compensability. Stone v. Tuscawilla Club, 7 FCR 345 (1973). The decisive factor in determining the applicability of the special hazard doctrine in this case is the fact that the special hazard existed on an access route serving primarily to provide entry and exit to the place of employment. See Naranja.

The finding of non-compensability is reversed and the cause is remanded for further proceedings consistent with this opinion.

BOOTH and WIGGINTON, JJ., concur.

      . Generally, injuries sustained while going to or coming from work are not considered to have arisen out of, and in the course of, employment. El Viejo Arco Iris, Inc. v. Tusces, 395 So.2d 225 (Fla. 1st DCA 1981).


author: WIGGINTON, Judge.

text:
    FLORIDA POWER AND LIGHT COMPANY, Self-Insured, Appellant, v. Starling E. BRYANT, Jr., Appellee.
    No. AH-248.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Albert E. Harum, Jr., of Albert E. Ha-rum, Jr., P.A., Miami, for appellant.
    Louis V. Cianfrogna and Michael L. Reda, of Cianfrogna, Telfer, Evans & Reda, P.A., Titusville, for appellee.
   WIGGINTON, Judge.

Florida Power and Light Company seeks review of a workers’ compensation order issued some thirteen months following the final hearing. The employer’s preference would be to relitigate the claim, suggesting that the evidence is stale and that the deputy’s recollection has been dimmed by the passage of time. We agree that a more expeditious disposition of the claim, once heard, would better serve the ends of justice; however, we cannot disagree with the deputy’s conclusions, save one, and as modified, the order is affirmed.

We must disagree with the deputy’s determination of the commencement date for permanent partial disability benefits. The pretrial stipulation clearly designates the date of maximum medical improvement as June 8, 1977, and this is reflected in the final order. . The deputy properly found that the accident and injury severely disabled Bryant resulting in his termination of employment, and causing his loss of wage-earning capacity.

We find the parties’ stipulation as to maximum medical improvement and the deputy’s findings to be conclusive. We find no record basis for the deputy’s choice of February 8, 1977 as the date on which Bryant’s permanent partial disability began.

The deputy’s order is hereby modified to establish June 8, 1977, as the date on which the disability benefits shall commence. The remaining issues before us are affirmed.

BOOTH and WENTWORTH, JJ., concur.


text:
    LONE STAR OF FLORIDA and Scott Wetzel Services, Appellants, v. Justo RODRIGUEZ, deceased, et al., Appellees.
    No. AH-268.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Jerold Feuer, Miami, for appellees.
   PER CURIAM.

This cause is before us on appeal and cross-appeal from a workers’ compensation order awarding death benefits, costs, interest, and attorney’s fees. The medical testimony established a direct causal relation between claimants’ decedent’s June 20, 1979, industrial accident and his subsequent fatal coronary atherosclerosis. See Sosenko v. American Airmotive Corp., 156 So.2d 489 (Fla.1963). Under such circumstances, it is unnecessary to show unusual strain or overexertion pursuant to Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961). Accordingly, the order is AFFIRMED.

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


text:
    W & J CONSTRUCTION CORP., and Chubb Pacific Indemnity Co., Appellants, v. David W. GREEN, Appellee.
    No. AI-296.
    District Court of Appeal of Florida, First District.
    July 13, 1982.

      Bernard J. Zimmerman and Michael M. O’Brien, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Bruce W. Jacobus, of Wolfe, Kirschen-baum, Caruso, Mosley & Kabboord, P. A., Indialantic, for appellee.
   PER CURIAM.

We find that there is competent substantial evidence to affirm the deputy commissioner’s order awarding claimant wage loss benefits. Further, the deputy was not in error by reserving jurisdiction for entry of an order for attorney’s fees and costs. However, the award of a fee to claimant’s attorney would be proper only pursuant to the provisions of Section 440.34, Florida Statutes (1979).

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


text:
    EARLY BIRD STUD FARM and Corporate Group Service, Appellants, v. Edward J. DECKER, Appellee.
    No. AI-306.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Jack A. Langdon, of Jones & Langdon, P.A., Gainesville, for appellants.
    Jean A. Bice, of Pattillo & McKeever, P.A., Ocala, for appellee.
   PER CURIAM.

Employer/carrier seek to appeal an order of the deputy commissioner which decided in favor of claimant the sole stipulated issue of compensability of the claim. The scope of the hearing was so limited and the order was intentionally silent as to the injuries sustained or benefits due.

Decker’s claim and the pretrial stipulation sought all benefits afforded by law including medical, mileage, temporary total disability, costs, interest, penalties and attorney’s fees. The record indicates no resolution of these issues. The record contains no agreement of the parties that would preclude further hearing and possible appellate review. Consequently, the issue of compensability, to which the parties by stipulation limited the scope of the hearing, is apparently not to be the only outstanding point in controversy. In short, we are asked to review an interlocutory order.

This Court is without jurisdiction to review by appeal non-final workers’ compensation orders. The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982).

Accordingly, the appeal is dismissed sua sponte without prejudice to the appellants to seek review of the compensability issue in the event of an appeal from a final order awarding benefits.

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


text:
    Jo Ann Elizabeth HOLLEY, Appellant, v. UNIVERSAL RENTAL PROPERTIES, INC., Appellee.
    No. AI-398.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Steven E. Rohan of Vickers & Rohan, P.A., Jacksonville, for appellant.
    John S. Duss of Duss & Butler, Jacksonville, for appellee.
   PER CURIAM.

We reverse the order granting appellee’s motion to quash appellant’s motion for leave to file a counterclaim and a crossclaim in appellee’s action for ejectment, quiet title and rescission and cancellation.

The order appealed was based upon a finding that the final judgment in Case No. 80-531-CA is res judicata as to the proposed counterclaim and crossclaim. It is settled law that where the defense of res judicata does not appear on the face of the pleading, it may not be raised on a motion to dismiss, but must be plead and proved as an affirmative defense. Glass v. Armstrong, 330 So.2d 57 (Fla. 1st DCA 1976); Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977).

Further, subsequent to the trial court’s order under review here, this court issued its decision reversing, in part, the trial court’s judgment in Case No. 80-531-CA. Holley v. James Lee Hayes and Universal Rental Properties, Inc., 412 So.2d 920 (Fla. 1st DCA 1982). Therefore, in determining the res judicata defense, consideration must be given to this court’s decision in the earlier case.

REVERSED and REMANDED for further proceedings.

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.


text:
    Richard R. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AI-418.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Michael E. Allen, Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appel-lee.
   PER CURIAM.

We affirm the trial court’s imposition of sentence under the Youthful Offender Act, Section 958.05, Florida Statutes (1981), without prejudice to appellant’s right to seek post-conviction relief, Rule 3.850, Florida Rules of Criminal Procedure, with respect to the trial court’s failure to comply with the requirements of Section 39.111(6), Florida Statutes (1981), before imposing adult sanctions. See, Harvey v. State, 408 So.2d 579 (Fla. 5th DCA 1981).

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.


author: SHIVERS, Judge.

text:
    Herman BUCKHALTER, Appellant, v. STATE of Florida, Appellee.
    No. AK-367.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    John R. Weed, Perry, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Buckhalter seeks review of the trial court’s order denying his motion to set bond pending appeal. The trial court erred in failing to enter a written order setting forth the factual basis upon which the court reached its decision and its rationale. Fla. R.App.P. 9.140(e)(3); Fla.R.Crim.P. 3.691(b). Accordingly, the order below is REVERSED and the matter REMANDED to the trial court with instructions to enter an order consistent with this opinion within fifteen days.

McCORD and JOANOS, JJ., concur.


text:
    L. D. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-441.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976); C. A. W. v. State, 295 So.2d 329 (Fla. 1st DCA 1974); Pizzo v. State, 289 So.2d 26 (Fla. 2d DCA 1974).


author: BASKIN, Judge.

text:
    Rae KAUFMAN, Appellant, v. A-1 BUS LINES, INC., a Florida Corporation, Appellee.
    No. 81-1619.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Lawrence B. Friedman and Robert B. Miller, North Miami Beach, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellee.

      Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellant Rae Kaufman challenges an adverse judgment entered following a directed verdict. In her lawsuit, she sought damages for injuries she sustained when she fell from a catwalk while part of a tour group visiting Tom Gaskins’ Cypress Knee Museum. Mrs. Kaufman filed a lawsuit against Tom Gaskins (the operator of the museum), A-l Bus Lines, Lykes Brothers, Inc. (the owner of the museum), and the insurance carrier for Lykes. It was dismissed for failure to state a cause of action. We affirmed the dismissal in Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61 (Fla. 3d DCA 1978), but ruled that dismissal should not have been with prejudice. In that decision, we held that under the allegations of the complaint A-1 Bus Lines had no duty to inspect or to warn Mrs. Kaufman of a dangerous condition.

On remand, Mrs. Kaufman amended her complaint and alleged that A-l Bus Lines operated the tour as well as the bus line, made the arrangements, and had actual knowledge of the danger. Subsequently, Mrs. Kaufman sought to add A-l Tours, alleged to be an alter ego of A-l Bus Lines, as a party, but her motion was denied. After hearing a proffer of evidence concerning whether the bus driver served as a tour guide, the court directed a verdict in favor of A-l Bus Lines. This appeal ensued.

We find error in the trial court’s rulings. First, whether A-l Bus Lines assumed a duty commensurate with its undertaking to act as tour guide presents a jury question. If the jury finds that A-l served in a capacity beyond that of furnishing transportation and acted as a tour guide, liability for negligence may result. An action undertaken for the benefit of another must be performed in accordance with a duty to exercise due care. Fidelity & Casualty Co. of New York v. L.F.E. Corp., 382 So.2d 363 (Fla. 2d DCA 1980); accord Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981); see Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Restatement, Torts 2d §§ 323, 324A (1965).

A motion for directed verdict should not be granted unless there is no evidence upon which the jury could lawfully find a verdict for the plaintiff. Myers v. Atlantic Coast R.R., 112 So.2d 263 (Fla.1959); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Jones v. City of Hialeah, 368 So.2d 398 (Fla. 3d DCA 1979); Balart v. Michel’s Kartway, Inc., 364 So.2d 90 (Fla. 3d DCA 1978); Fla.R.Civ.P. 1.480. Sufficient evidence appears in the record and in the proffer to require submission to the jury.

Next, we find error in the court’s refusal to permit appellant to amend her complaint. The presence of A-l Tours was proper to a complete determination of the cause. Garner v. Ward, 251 So.2d 252 (Fla.1971); Fla.R.Civ.P. 1.210(a); see Jefferson Realty of Fort Lauderdale, Inc. v. United States Rubber Co., 222 So.2d 738 (Fla.1969); Fla.R.Civ.P. 1.190(a), (e), 1.250(c).

For these reasons, we reverse the judgment and remand for further proceedings consistent with this opinion.


author: NESBITT, Judge.

text:
    Paul G. PEPPLER and Francesca A. Peppier, his wife, Petitioners, v. KASUAL KREATIONS, INC., Respondent.
    No. 81-1742.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.

      Guillermo F. Mascaro, Coral Gables, and Charles V. Peppier, Miami, for petitioners.
    Richard L. Kopel, Hollywood, for respondent.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

This case presents the issue of whether the remedies of cancellation and revocation of acceptance under the Uniform Commercial Code are equitable in nature so as to invoke the jurisdiction of the circuit court. We answer this question in the affirmative.

Plaintiffs, Francesca and Paul Peppier, purchased a sofa and lounge chair from the defendant for the agreed price of $986.52, making a down payment of $500. After delivery of the goods and payment of the balance of the purchase price, the buyers discovered defects in the construction of both the sofa and the chair. The furniture was returned to the seller for repair, but the buyers remained dissatisfied with the goods upon their return. The buyers instituted suit in circuit court seeking rescission of the contract and return of the purchase price. Based upon defendant’s motion to dismiss, the trial judge transferred the cause to the county court and the buyers brought the instant petition for writ of common law certiorari.

As noted, this action was brought as one for “rescission.” The Uniform Commercial Code, while abandoning the term “rescission” in favor of “revocation of acceptance,” § 672.608, Fla.Stat. (1979), and “cancellation,” § 672.711, Fla.Stat. (1979), has merely codified the remedy formerly available in equity. See Orange Motors of Coral Gables, Inc., v. Dade County Dairies, Inc., 258 So.2d 319, 321 (Fla. 3d DCA), cert. denied, 263 So.2d 831 (Fla.1972); Prince v. LeVan, 486 P.2d 959, 962-63 (Alaska 1971); Peckham v. Larsen Chevrolet-Buick-Oldsmobile, Inc., 99 Idaho 675, 587 P.2d 816, 818 (1978); Werner v. Montana, 117 N.H. 721, 378 A.2d 1130, 1135 (1977); Testo v. Muss Dunmire Oldsmobile, Inc., 16 Wash.App. 39, 554 P.2d 349, 356 (1976). As we construe the Uniform Commercial Code, cancellation and revocation of acceptance are intended to afford an aggrieved party the panoply of equitable remedies formerly available in a court of chancery in an action for rescission. Nonetheless, in order to be entitled to these Code remedies, an aggrieved party need only plead the enumerated statutory grounds.

Consequently, we find that, under the Code, the equitable powers of the circuit court may be invoked to enforce the relief requested. We therefore grant the petition for a writ of common law certiorari and quash the order transferring this cause to county court with directions to reinstate the present action in circuit court.

      . We observe, of course, that this does not alter a plaintiffs right to bring suit under a common law theory of rescission by pleading the traditional grounds for equitable relief.

      . Because no demand for a jury trial has been made, at this juncture, we need not consider whether a jury trial would be available as a matter of right.


text:
    Jack KLEIN, Appellant, v. MEGA TRADING, LIMITED, a Florida limited partnership, By and Through Gary D. HOCHMAN, a general partner, Appellees.
    No. 81-1960.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rice, O’Dell & Goldman, Orlando, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Ronald P. Weil, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Mega Trading, Ltd., a Florida limited partnership, sued Jack Klein, a New Jersey resident. Service of process was made pursuant to Section 48.181, Florida Statutes (1979). Jack Klein appeared specially and timely moved to quash the service alleging, among other things, that mere investment in a Florida limited partnership is not sufficient minimum contact which satisfies due process requirements under the statute. We agree and reverse.

On or about January 28, 1981, Klein purchased an interest in Mega Trading, Ltd. as a limited partner. By the terms of the limited partnership agreement, Klein’s only contact with Florida was his initial contribution to the partnership. The purchase of an interest in a limited partnership is analogous to the purchase of stock in a corporation. Freedman v. Tax Review Board of City of Philadelphia, 212 Pa.Super. 442, 243 A.2d 130 (1968), aff’d, 434 Pa. 282, 258 A.2d 323 (1969). While we find no Florida authority directly on point, we conclude that the contacts created by an investment in a Florida limited partnership are no greater than those of the non-resident corporate officer and director of a Florida company described in Unterman v. Brown, 169 So.2d 522 (Fla. 2d DCA 1964). See also Uible v. Landstreet, 392 F.2d 467 (5th Cir. 1968).

For the foregoing reasons, the order denying the motion to quash is reversed.

Reversed.


author: SCHWARTZ, Judge.

text:
    Emilio RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2112.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.

      Stephen Loffredo, Miami, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The judgment under review is reversed for a new trial on the authority of and for the reasons stated in Rojas v. State, 412 So.2d 71 (Fla. 3d DCA 1982), which involved a codefendant of the present appellant. We reject the state’s contention that Rodriguez failed personally to preserve the self-incrimination point below both because a fair reading of the record shows that his counsel joined in the motion for mistrial explicitly asserted by the attorneys for the codefendants, see Clark v. State, 363 So.2d 331 (Fla.1978), and because his lawyer’s own unequivocal objection to the offending comment was incorrectly overruled. Simpson v. State (Fla. Case no. 49,681, opinion filed, April 8, 1982).

The other points raised by the defendant have no merit. State v. Cooper, 391 So.2d 332, 333 (Fla. 3d DCA 1980); United States v. Ross,-U.S.-, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Reversed.


author: BARKDULL, Judge.

text:
    Vardit M. SASLOE, Appellant, v. HOME LIFE INSURANCE COMPANY, NEW YORK, a foreign corporation, Appellee.
    No. 81-2261.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and William R. Wicks, III, Miami, for appel-lee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

The named beneficiary of an insurance policy, appeals a final judgment entered pursuant to a directed verdict, at the close of all the evidence, in favor of the insurance company.

Yardit Sasloe filed suit seeking to recover the $10,000 accidental death benefit on a life insurance policy issued to Mark Sasloe. The insurance company denied that the benefit was due because Mark’s death was the result of one or more specifically excluded risks. The policy provided, in part, that:

The Company does not assume the risk ... if death results directly or indirectly, wholly or partly, from . .. medicines; drugs; sedatives; ... [or] committing or attempting to commit a crime; ....

The evidence at trial revealed that Mark Sasloe, died when the automobile he was driving struck a tree in the median of the road. An autopsy was performed by Dr. Wright. The autopsy revealed a low-level of alcohol and the presence of Methaqua-lone in the “lethal range” in the blood; Valium, Phentermine, Quinine, Benzoyle-co-nine, aspirin and a trace of cocaine were in the urine. Dr. Wright opined that Mark was intoxicated with Methaqualone and that his intoxication directly contributed to his death in that it caused the collision.

Other witnesses testified that Mark was speeding and driving erratically just prior to and at the time of the accident. An investigating officer could find no mechanical failures in the vehicle which would have contributed to the accident.

The evidence at the conclusion of the case amply demonstrated that the amount and type of drugs ingested by Mark Sasloe had a direct causal relationship with his death, or at least indirectly or partly contributed to his death.

Therefore, there was no liability under this policy. See and compare: Haines v. Southern Life and Health Insurance Company, 363 So.2d 175 (Fla. 4th DCA 1978); Stinchomb v. Mutual Life Insurance Company of New York, 305 So.2d 84 (Fla. 2d DCA 1974).

The cases relied upon by the appellant, [Harris v. Carolina Life Insurance Company, 233 So.2d 833 (Fla.1970); Mason v. Life and Casualty Ins. Co. of Tennessee, 41 So.2d 153 (Fla.1949); Mason v. Life and Casualty Insurance Company of Tennessee, 41 So.2d 155 (Fla.1949)] are readily distinguishable; the Mason cases involved different policy language. In the Harris case, the insured was a passenger so his intoxication was unrelated to his accident.

The trial court was eminently correct in granting the directed verdict. Provident Life & Accident Ins. Co. v. Eaton, 84 F.2d 528 (4th Cir. 1936); Order of United Commercial Travelers v. Tripp, 63 F.2d 37 (10th Cir. 1933); Flannagan v. Provident Life & Accident Ins. Co., 22 F.2d 136 (4th Cir. 1927); Tyler v. American Home Assurance Corporation, 337 So.2d 919 (La.App. 3rd Cir. 1976); Richard v. American Home Assurance Company, 318 So.2d 613 (La.App. 3rd Cir. 1975); Young v. All American Assurance Company, 243 So.2d 894 (La.App. 3d Cir. 1971); Matthews v. All American Assurance Company, 226 So.2d 181 (La.App. 3d Cir. 1969).

Therefore, the final judgment is affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Miriam MIRABAL, Appellant, v. Ramon MIRABAL, Appellee.
    No. 81-2275.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.

      Paul J. Kneski, Miami, for appellant.
    Ramon Mirabal, in pro. per.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Miriam Mirabal, who only sought to have her interest in certain property acquired by the parties during the marriage determined and awarded, appeals from a post-dissolution final judgment, which, in the name of Canakaris, instead awarded her lump sum alimony. Miriam did not seek alimony in any form, and, indeed, along with her husband, expressly waived alimony at the outset of the final hearing.

The facts are undisputed. Miriam and Ramon Mirabal, after their marriage in 1976, became partners and worked together in an import-export business. The business generated all of the money used to purchase three parcels of real property — the marital home titled in both their names; a home in Key West titled in both their names; and a home called “the Farm” titled in the husband’s name. The husband unequivocally testified that he brought no money into the marriage and claimed no special equity in any of these properties. Neither party claims that any gift was made. The trial court, presumably in an effort to make an equitable distribution of the marital property through the device of reciprocal lump sum alimony awards, gave Miriam the husband’s interest in the marital home plus $30,000 payable over one hundred months, gave Ramon the wife’s interest in the Key West property, and left undisturbed Ramon’s sole ownership of the farm property, thus effectively denying Miriam’s claimed special equity therein.

Although we held in Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981), that reciprocal lump sum alimony awards

“represent an appropriate exercise of the trial court’s power to fashion, by this device, an equitable distribution of the parties’ property — in other words, to ‘make a property settlement agreement’ for them — which we think has been granted by Canakaris ,v. Canakaris, [382 So.2d 1197 (Fla.1980) ] and Ingram v. Ingram, 379 So.2d 955, 956 (Fla.1980) Id. at 1096.

this holding, which the husband suggests justifies the trial court’s action in the present case, is totally inapplicable where the parties, by their express waiver of alimony, have in effect said they do not want the court to make a property settlement agreement for them. Cf. Daniel v. Daniel, 171 So.2d 180 (Fla. 2d DCA 1965) (on wife’s appeal from decree granting her a divorce with lump sum alimony in her action for alimony unconnected with divorce, decree reversed upon a holding that despite broad powers of equity court, “they are not broad enough to grant relief in a cause of action in which relief is not requested.” Id. at 182). Miriam simply claimed that her interest in these properties was vested in two instances by virtue of record title and in other instances by virtue of established special equities in the property titled in the husband’s name and in his one-half interest in the marital residence arising from his removal and destruction of the furnishings and fixtures therein. Miriam claimed no alimony and had the right not to have it forced upon her against her will. See Daniel v. Daniel, supra.

It is clear from this record that since the husband asserts no special equity claim, disposition of the parcels held by the entireties (the marital residence and the Key West property) is controlled by statute, § 689.15, Fla.Stat. (1981), and the wife is by virtue of record title entitled to a one-half interest in these properties as a tenant in common. Ball v. Ball, 335 So.2d 5 (Fla.1976); Tolin v. Tolin, 401 So.2d 1167 (Fla. 4th DCA 1981); Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980). Additionally, she is entitled to be compensated for the diminution of her one-half ownership interest in the furnishings and fixtures in the marital residence caused by the actions of the husband in removing and destroying some of that property by a special equity in the husband’s one-half interest equal to the diminution. In respect to the farm property titled in the husband’s name, one-half of which was admittedly purchased with the wife’s funds, the wife has indisputably established a special equity therein and is entitled to be declared a one-half owner of such property as a tenant in common with her husband. Since the husband placed a mortgage on this property and was the sole beneficiary of the mortgage proceeds, the wife is entitled to an additional special equity of an amount equal to one-half of the outstanding balance of the mortgage.

Reversed and remanded with directions to enter judgment in accordance with this opinion and for further proceedings to determine the amount of the special equity to which the wife is entitled in the husband’s one-half share of the marital residence. The remaining provisions of the final judgment dealing with automobiles, which are not challenged on appeal and not related to the matters before us, are left undisturbed.

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

      . The wife, relying on Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981); Jacobs v. Jacobs, 400 So.2d 141 (Fla. 1st DCA 1981); and James v. James, 374 So.2d 1085 (Fla. 5th DCA 1979), contends that an award of alimony, lump sum or otherwise, cannot be made in the absence of a request therefor and, a fortiori, in the face of an express waiver thereof. While these cases could be broadly read to mean that a trial court is empowered to award alimony only when alimony is an issue before the court, they all involve appeals by the party called upon to pay the alimony award, not, as here, an appeal by the “beneficiary” of the award. The narrow reading of these cases is that a party against whom an alimony award is rendered is entitled to be advised by appropriate pleadings that alimony is an issue he is called upon to defend. See also Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978); Andrews v. Andrews, 356 So.2d 1333 (Fla. 3d DCA 1978); compare Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978), with Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979).


text:
    The STATE of Florida, Appellant, v. Donald FISHER, Appellee.
    No. 81-2411.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Jim Smith, Atty. Gen. and John F. Ro-benalt and Penny Hershoff, Asst. Attys. Gen., for appellant.
    David R. Smith, Fort Lauderdale, for ap-pellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Relying upon our decision in Casal v. State, 375 So.2d 1077 (Fla. 3d DCA 1979), the trial court granted the defendant’s motion to suppress the marijuana found aboard his vessel by Marine Patrol officers because they had no probable cause or founded suspicion of illegal activity so as to justify the initial stop. The supreme court’s subsequent disapproval and reversal of this conclusion and its contrary holding in State v. Casal, 410 So.2d 152 (Fla.1982) that “spot checks of motorboats are not unreasonable under the Fourth Amendment,” 410 So.2d at 155, requires reversal of that order.

Since we are not empowered in this state appeal to consider the appellee’s claims that the suppression should be affirmed on other grounds which the trial court did not reach or pass upon below, State v. Roberts, 415 So.2d 796, n.3 (Fla. 3d DCA 1982), we remand for consideration of these alternative contentions and for further proceedings thereafter which are consistent with this opinion.

Reversed and remanded.


text:
    Mary Jane GETER and Jack Robertson, a/k/a Jack Donald Robertson, Appellants, v. Frank J. CARR, Appellee.
    No. 81-2635.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Spiegelman & Spiegelman, and Robert Spiegelman and Ernest I. Kass, Miami, for appellants.
    Byrd V. Duke, Jr., North Miami, for ap-pellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971).


text:
    Leonel ALFONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-337.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Smith v. State, 305 So.2d 868 (Fla. 3d DCA), cert. denied, 316 So.2d 284 (Fla.1975).


text:
    Elizabeth A. WEIR, as Executrix of the Estate of Laura C. Weir, Petitioner, v. MERRILL LYNCH, PIERCE, FENNER & SMITH INC. and William Laudani, Respondents.
    No. 82-741.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Stephen N. Zack and Thomas Meeks, Miami, for petitioner.
    Walton, Lantaff, Schroeder & Carson and Patricia E. Cowart and Bennett Falk, Miami, for respondents.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

The petition for writ of certiorari is denied upon the authority of Merrill Lynch Pierce Fenner & Smith Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981).


author: FRANK D. UPCHURCH, Jr, Judge.

text:
    Mary MARKS, 1979 Pontiac Trans Am VIN Number ZX87Z9L171238, Appellant, v. STATE of Florida, Appellee.
    No. 81-489.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1982.

      Richard A. Krause, Ormond Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr, Judge.

Appellant Mary Marks seeks reversal of an order of forfeiture of her 1979 Pontiac Trans Am automobile. The state claimed that the vehicle had been used to aid in the commission of a felony (aggravated assault) and was subject to forfeiture as contraband under The Florida Contraband Forfeiture Act. We affirm the order of forfeiture.

At the time of the incident, the vehicle in question was being driven by Leo Dukes. The vehicle, however, was titled and registered in the name of Mary Marks. In the order of forfeiture, the trial court found that Dukes had committed one or more aggravated assaults while driving the vehicle, that he had placed apparent legal ownership in Marks to avoid forfeiture and that he was the actual owner of the vehicle. The court also determined that it had properly acquired personal jurisdiction over Dukes.

We find that the evidence is sufficient to sustain the trial court’s determinations. We also conclude that the vehicle was subject to forfeiture as contraband under the act.

Section 932.701(2)(e) defines a contraband article as:

Any personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, (emphasis added)

Section 932.702(4) makes it unlawful to conceal or possess any contraband article. Section 932.703 outlines the procedure for the forfeiture of any contraband article used in violation of section 932.702.

The Trans Am involved in the present case is clearly a “vehicle of any kind” within the purview of the forfeiture act. An aggravated assault is also clearly included in the class of “any felony.” As the vehicle was employed as “an instrumentality in the commission of any felony,” it was a contraband article. Once the contraband article was “possessed”, it was properly subject to forfeiture.

Marks, however, contends that it is necessary for the state to prove that Leo Dukes had been convicted of the felony. Whether Dukes has been convicted of aggravated assault does not appear in the record.

In City of Tallahassee v. In Re: The Forfeiture of One Yellow 1979 Fiat etc., 414 So.2d 1100 (Fla. 1st DCA 1982), the First District held that neither the conviction nor the acquital in the companion criminal case was relevant to the forfeiture proceedings. This holding derives from the fact that forfeiture proceedings are civil in nature and the record and judgment in criminal actions are not admissible in civil forfeiture proceedings. State v. Dubose, 152 Fla. 304, 11 So.2d 477 (Fla.1943). Knight v. State, 336 So.2d 385 (Fla. 1st DCA 1976).

We agree with our sister court that proof of a conviction is not necessary. Forfeiture is a civil remedy and the law does not and never has required proof beyond a reasonable doubt to sustain the plaintiff’s case. The legislature sets the standard of proof when it enacts the statute as a civil penalty. Had the legislature wanted to require a burden of proof greater than the civil standard — proof by a preponderance of the evidence — then it could have required that proof of a conviction of the felony was necessary to entitle the state to forfeiture.

AFFIRMED.

ORFINGER, C. J., and DAUKSCH, J., concur.

      . §§ 932.701-932.704, Fla.Stat. (1981).

      . Formerly section 943.41(2)(e), Florida Statutes (Supp.1980).

      . Formerly section 943.42, Florida Statutes (Supp.1980).

      . Section 932.703, formerly section 943.43, Florida Statutes (Supp.1980), provides as follows:
      Forfeiture of vessel, motor vehicle, aircraft, other personal property, or contraband article; exceptions.—
      (1) Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s.932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interest in and title to contraband articles or contraband property used in violation of s.932.702 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interests in accordance with this act. Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act. In any incident in which possession of any contraband article defined in s.932.701(2)(a)-(d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s.90.-302(2) that the vessel, motor vehicle, aircraft, or personal property, in or on which such contraband article is located at the time of seizure, is being used or was intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s.932.701(2)(a)-(d).
      (2) No property shall be forfeited under the provisions of ss.932.701-932.704 if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.
      (3) No bona fide lienholder’s interest shall be forfeited under the provisions of ss.932.701-932.704 if such lienholder establishes that he neither knew nor should have known after a reasonable inquiry that such property was being used or was likely to be used for illegal activity, that such use was without his consent, express or implied, and that the lien had been perfected in the manner prescribed by law prior to such seizure. If it appears to the satisfaction of the court that a lienholder’s interest satisfies the above requirements for exemption, such lienholder’s interest shall be preserved by the court by ordering the lien-holder’s interest to be paid from such proceeds of the sale as provided in s.932.-704(3)(a).

      . § 784.021(2), Fla.Stat. (1981).

      . In One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), the Supreme Court noted that acquittal of criminal charges may represent only an adjudication that the proof was not sufficient to overcome all reasonable doubts of guilt and is not an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. The court also noted that the criminal offense may require proof of an element such as intent that is not required in the forfeiture proceedings.


author: COBB, Judge.

text:
    Dewease L. WOODBURN, Appellant, v. Ronald L. WOODBURN, Appellee.
    No. 81-1304.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1982.
    Ernest J. Rice of Rice, O’Dell & Goldman, P. A., Orlando, for appellant.
    George E. Adams of Adams & Hill, Orlando, for appellee.
   COBB, Judge.

This is an appeal of a non-final award of temporary support for appellant wife and four minor children taken pursuant to Florida Rule of Appellate Procedure 9.130. With some degree of misgiving, we affirm this temporary order.

In the comparatively brief hearing held before the trial court, during which each party testified, it was established that the husband was netting some $6,900 per month. Of that sum, the court required him to pay some $3,350 for child support and alimony, which amount included the house payment on the marital domicile wherein the wife resides. The evidence was that the husband is beginning a new practice in radiology, having transferred his practice from Orlando to St. Petersburg. The wife is unemployed. There was evidence that in the period of separation preceding the filing of the dissolution action, the husband had paid to the wife amounts ranging from $4,400 to $6,500 per month, and paid various other family bills.

Although we are disturbed by an award which, on its face, appears to allocate more money for the temporary support of one person than for five, we cannot say, based on the brief record now at our disposal, that the trial judge has abused his discretion as that term is defined in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

The temporary order of the trial court is

AFFIRMED.

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


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Arthur LINK, Jr., Appellee.
    No. 81-1315.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1982.

      Joe G. Dykes, Jr. of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellant.
    Fred S. Disselkoen, Jr. of Duffett, Seps & Akers, Ormond Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

State Farm appeals from a summary judgment declaring that Arthur Link, Jr., is entitled to personal injury protection (PIP) benefits from State Farm. Link was struck by an automobile while operating a moped and was injured. State Farm had issued an insurance policy on Link’s automobile (not involved in this accident) but declined to pay him PIP benefits.

Under the Florida Automobile Reparations Reform Act, the insurer of the owner of a motor vehicle must pay PIP benefits for accidental bodily injury sustained in this state by the owner while (1) occupying a motor vehicle or (2) while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle. § 627.736(4)(d)(l), Fla.Stat. (Supp. 1980).

Section 627.732(1), defines “motor vehicle” as:

[A]ny self-propelled vehicle which is of a type both designed and required to be licensed for use on the highways of this state except mopeds, as defined in s.316.-003(2), ....

By statutory definition, a moped is not a “motor vehicle.” Therefore, State Farm is required to pay PIP benefits only if the injury was sustained while Link was “not an occupant of a self-propelled vehicle.”

State Farm contends that because mopeds were specifically excepted from the definition of motor vehicles and as motor vehicles are defined as self-propelled vehicles, then mopeds must be self-propelled vehicles. Section 627.732(1), however, specifically refers to mopeds as defined in section 316.008(2). Section 316.003 provides for mopeds within the definition of “Bicycles”:

(2) Bicycle. — Any device propelled by human power, or any moped propelled by a pedal-activated helper motor with a manufacturer’s certified maximum rating of IV?. brake horsepower, upon which any person may ride, having two tandem wheels, either of which is 20 inches or more in diameter, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels.

Section 316.003 also provides the following definitions:

(21) Motor vehicle. — Any vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, but not including any bicycle or “moped” as defined in subsection (2). (64) Vehicle. — Any device, in upon, or by which any person or property is or may be transported or drawn upon a highway, except bicycles or mopeds as defined in subsection (2) or devices used exclusively upon stationary rails or tracks.

The moped involved here could be pedaled, but could also utilize a motor rated by the manufacturer as having a maximum rating of IV2 brake horsepower. State Farm does not dispute that Link’s moped is a bicycle under chapter 316 but rather argues that this chapter should not be used to define terms under the no-fault insurance act.

As was mentioned above, section 627.-732(1) excepted mopeds as defined in section 316.003(2) from its definition of motor vehicles. As the no-fault insurance act did not specifically define mopeds but instead relied on the definition in chapter 316, we believe that the Legislature intended to incorporate this definition into the no-fault insurance act. Contrary to State Farm’s contention, the two acts are not totally unrelated. Both acts concern the use and misuse of various types of vehicles. In construing rights and duties under the no-fault insurance act, other courts have looked to the definitions in chapter 316. See, e.g., Ward v. Florida Farm Bureau Cas. Ins., 375 So.2d 898 (Fla. 1st DCA 1979); Sherman v. Reserve Ins. Co., 350 So.2d 349 (Fla. 4th DCA 1977); State Farm Mutual Auto. Ins. Co. v. O’Kelley, 349 So.2d 717 (Fla. 1st DCA 1977).

The use of the definitions in chapter 316 would be unacceptable only if it led to a result inconsistent with the legislative intent in enacting the no-fault insurance act. See State Farm Mut. Auto. Ins. Co. v. O’Kelley, 349 So.2d at 718. In O’Kelley, the court held that a minibike with between Zlh to 5 brake horsepower which was involved in an accident was a “motor-driven cycle” as defined under section 316.003(23) and not a motorcycle as contemplated by section 627.736 and thus the insurance carrier was required to pay PIP benefits to the plaintiff.

In considering the legislative intent in excluding motorcycles from coverage under the no-fault act, the court in O’Kelley found the following language from State Farm Mut. Auto. Ins. Co. v. Nicholson, 337 So.2d 860, 682 (Fla. 2d DCA 1976), instructive:

We think the better view and the intent of the legislature in enacting the no-fault act was to exclude from coverage the normal meaning attributed to the word ‘motorcycle,’ given the applicable law and modern definitions. That definition is normally associated with a two-wheel tandem vehicle which the operator straddles without benefit of any enclosure and which must be balanced in operation to maintain equilibrium. The legislature, because of these features, undoubtedly sought to exclude these types of vehicles since the propensity for accidental injury during operation is so much higher.
The court in O’Kelley then observed: The propensity for accidental injury during the operation of an unlicensed minibike can hardly be said to be that which we have traditionally associated with motorcycles.
******
We simply do not believe, given the nature of the vehicle involved, a small, unlicensed low horsepower motorbike, that the legislature intended to exclude the occupants of such vehicles from PIP benefits when not operated on the public highways. We should not construe a statute in such a manner as to reach an illogical or ineffective conclusion when another construction is possible. Gracie v. Deming, 213 So.2d 294 (Fla. 2d DCA 1968). To construe the statute in the manner argued by State Farm would be illogical, unreasonable and a departure from common sense.

349 So.2d at 719.

State Farm correctly points out that chapter 77-468, Laws of Florida, substituted “self-propelled vehicle” for “motor vehicle or motorcycle” for purposes of excluding PIP benefits. However, this change does not compel the result desired by State Farm. Had it intended to limit recovery under PIP solely to pedestrians, the Legislature could have simply stated so.

Under chapter 316, the moped involved here is a “bicycle” and not a “vehicle” and therefore it cannot be a “self-propelled vehicle” for purposes of section 627.736(4)(d). As Link was injured by physical contact with a motor vehicle “while not an occupant of a self-propelled vehicle,” he was entitled to PIP benefits.

AFFIRMED.

ORFINGER C. J., and COWART, J., concur.

      . §§ 627.730 627.741, Fla.Stat. (Supp.1980).

      . Chapter 316 is known as the “Florida Uniform Traffic Control law.” § 316.001, Fla.Stat. (1981).

      . Section 316.003(23) provides as follows:
      Motor-driven cycles. — Every motorcycle and every motor scooter with a motor which produces not to exceed five brake horsepower, including every bicycle propelled by a helper motor rated in excess of IV2 brake horsepower.

      . Section 627.736(4)(d)(l) originally provided that an insured was entitled to PIP benefits if he were “not an occupant of a motor vehicle or motorcycle....”


author: DELL, Judge. ANSTEAD, Judge,

text:
    Ronald Gene PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1332.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Ronald Gene Palmer appeals his conviction and sentence for armed robbery, aggravated assault and carrying a concealed firearm.

A sixteen count information charged the appellant with thirteen counts of armed robbery; one count of aggravated assault; one count of carrying a concealed firearm; and one count of possession of a firearm while engaged in a criminal offense. Each count of armed robbery alleged a different named individual from whom money and possessions were taken. Count XIV alleged an aggravated assault upon one Arthur Petersen, also named in Count I as the victim of an armed robbery. The jury found appellant guilty of all the offenses as charged. The court sentenced him to thirteen consecutive terms of seventy-five years’ imprisonment with a mandatory minimum of three years on each count of Counts I through XIII (armed robberies) and to five years’ imprisonment each on Counts XIV and XV (aggravated assault and carrying a concealed firearm), to be served consecutively to each other and to the initial thirteen counts. No sentence was imposed for possession of a firearm while engaged in a criminal offense (Count XVI). Thus, the trial court sentenced appellant to a total of nine hundred eighty-five years in prison with a mandatory minimum of thirty-nine years and retained jurisdiction over the first three hundred twenty-eight and one-third years of his sentence.

No dispute exists on the essential facts, with the exception of whether or not the appellant displayed a weapon during the perpetration of the assault on Mr. Petersen. On July 28, 1979, during a viewing, the appellant rang the doorbell at the Alemy Funeral Home. The assistant director, Arthur Petersen, answered, and appellant asked to see Allen Roberts. When Petersen told him that no one by that name was present, he pulled a gun and ordered Mr. Petersen to tell everyone to put their valuables on the floor. A few people laughed at Petersen’s announcement, whereupon appellant pulled back the hammer on the gun, put the gun to Mr. Petersen’s head and said, “I’ll kill him if you think I am fooling.” The mourners complied. After noticing two latecomers in the outer room of the funeral home he separately ordered them into the main chapel and told them to hand over their bills. As the mourners complied with the appellant’s instructions, he threatened to shoot and kill them. After he completed the robbery of the mourners, he ordered Mr. Petersen into the funeral home office to open the cash box.

Appellant raises several points on appeal. He contends: that his conviction and sentence on thirteen counts of armed robbery should be reversed because he only violated one statute and the time, place, circumstances and intent were the same as to all of the victims; that the mandatory minimum sentences constitute cruel and unusual punishment; that the trial court erred in retaining jurisdiction over the first one-third of his sentence; and, that the trial court erred in convicting him on separate counts of robbery and use of a firearm in the commission of a felony.

Appellant cites Hearn v. State, 55 So.2d 559 (Fla.1951), and argues that the robbery of thirteen separate individuals constituted a single transaction because he violated only one statute and the time, place, circumstances and intent were the same as to all of the victims. In Hearn v. State, the defendant stole cows belonging to two different owners from the same pasture at the same time. The Supreme Court found that only one larceny occurred. The defendant was convicted in the morning of the larceny of one cow belonging to Adkinson, and placed on trial in the afternoon for the larceny of cows and calves belonging to Ganey. He filed a plea of former jeopardy. The Supreme Court concluded

[T]he facts and circumstances of this case are identical with the other case for the larceny of which the defendants were convicted, all occurring at the same time and arising out of the same transaction, under the same circumstances and with the same intent, thus constituting this act a single larceny. (Emphasis added). Hearn v. State, supra.

Two years later, the Supreme Court distinguished Hearn and held that the defendant committed two larcenies when he stole cattle belonging to two separate owners from two different pastures. Hall v. State, 66 So.2d 863 (Fla.1953). The element of intent distinguished Hearn from Hall. In Hall, as in the instant case, the defendant knew that the property belonged to multiple owners. The record clearly demonstrates appellant’s intent to commit a robbery as to each victim.

The Second District Court of Appeal has distinguished “single transaction” cases from “single episode” cases:

[A]ll so-called “single transaction” cases are in turn to be distinguished from those that may well be termed “single episode” (original emphasis) cases in which multiple, separate and severable offenses are committed; e.g., a single robbery involv ing several victims, a multiple homicide situation, a burglary with intent to commit larceny and the ensuing larceny, or a case in which one is found simultaneously in possession of two separate and distinct kinds of contraband. In this latter class of cases both separate judgments and separate sentences, concurrent or consecutive are proper. (Emphasis supplied). State v. Peavey, 326 So.2d 461, 463-464 (Fla.2d DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976).

This court also pointed out in Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), affirmed, 415 So.2d 1265 (Fla.1982), that the legislature has abrogated the single transaction rule. Florida Statute 775.021(4) (1977). The record does not support appellant’s argument that his conviction on Counts I through XIII constituted a violation of one statute. Rather the record amply demonstrates that he separately violated one statute thirteen times during a single episode. Therefore we must affirm appellant’s conviction and sentence for each of the thirteen robberies.

Appellant contends that imposing three year mandatory minimum sentences on each of the thirteen consecutive sentences for armed robbery, a total of thirty-nine years, constitutes cruel and unusual punishment. He compares the thirty-nine year mandatory term for thirteen counts of armed robbery to the mandatory twenty-five year term for conviction of first degree murder. Appellant’s comparison is invalid. A defendant convicted of thirteen counts of first degree murder would be subject to a total mandatory minimum sentence of three hundred twenty-five years as opposed to the thirty-nine years imposed in the instant case. We find no merit in this argument.

Appellant challenges the constitutionality of Section 947.16(3), Florida Statutes. The Supreme Court held this statute constitutional in Borden v. State, 402 So.2d 1176 (Fla.1981). The trial judge based his order on articulated grounds and adequately noted his justification for retaining jurisdiction. We find no abuse of discretion in the court’s retention of jurisdiction. Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980). Nor do we find any merit in appellant’s assertion that the trial court failed to notify appellant that it would retain jurisdiction of his sentence. When the court announced the sentence the trial judge stated that, “This court will retain jurisdiction for the first third.” Then the court reduced its order to writing, in a manner consistent with the requirements of Section 947.16(3). It made no change or modification in the sentence as announced at the time of sentencing. Appellant relies upon Hayes v. State, 400 So.2d 519 (Fla.3d DCA 1981), however, in Hayes, the trial judge did not mention retaining jurisdiction at the time of sentencing but rather placed a handwritten note on the judgment which was recorded later, “The court retains jurisdiction on this matter.” We find no departure from the requirements of Section 947.16(3).

Appellant also challenges the imposition of a five year sentence for aggravated assault on Arthur Petersen and argues that this charge was a lesser included offense of the charges arising out of the robbery of the mourners. The assault on Mr. Petersen did not occur during the robbery of Petersen. The assault occurred when appellant took Mr. Petersen into a separate room to rob the funeral home cash box. Although the record does not show that he exposed a gun when he assaulted Mr. Petersen, the court adequately and properly instructed the jury as to the elements of the crime charged and the record contains sufficient evidence to support the jury’s verdict. “It is too well settled to require citation of authorities that any material fact may be proved by circumstantial evidence, as well as by direct evidence.” Moorman v. State, 157 Fla. 267, 25 So.2d 563 (1946).

Appellant also argues that we should vacate his conviction for using a firearm during the commission of a felony. The trial court did not impose a sentence for his conviction of the use of a firearm in the commission of a felony. Section 775.-021(4), Florida Statutes (1979), bars multiple sentences. No prohibition exists against multiple convictions for lesser included offenses. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Lastly, appellant argues that the trial court erred in retaining jurisdiction on the first one-third of his sentence for carrying a concealed weapon. He asserts that this offense is not an offense enumerated in the statute. Section 947.16(3), Florida Statutes, provides:

[Ejxcept that, in any case of a person convicted of murder, robbery, aggravated assault, aggravated battery, kidnapping, sexual battery or attempted sexual battery, incest or attempted incest, an unnatural and lascivious act or an attempted unnatural and lascivious act, lewd and lascivious behavior, assault or aggravated assault when a sexual act is completed or attempted, battery or aggravated battery when a sexual act is completed or attempted, arson, or any felony involving the use of a firearm or other deadly weapon or the use of intentional violence, at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order.

The Second District Court of Appeal in Robinson v. State, 368 So.2d 638 (Fla.2d DCA 1979), determined that carrying a concealed weapon does not constitute a felony “involving the use of a firearm,” as defined in Section 947.16(3), Florida Statutes. We agree and reverse only that part of the trial court’s order retaining jurisdiction over the sentence for the offense of carrying a concealed weapon. In all other respects the convictions and sentences are affirmed.

AFFIRMED, REVERSED IN PART.

DOWNEY, J., concurs.

ANSTEAD, J., concurs in part and dissents in part with opinion.

ANSTEAD, Judge,

concurring in part and dissenting in part:

The only disagreement I have with the majority opinion is the conclusion that the evidence was sufficient to sustain a conviction for an aggravated assault upon Arthur Petersen separate and apart from the assault which occurred during the robbery of Petersen. The state specifically charged that appellant committed this offense by pointing a .22 caliber revolver at Petersen in a threatening manner. Such an assault was proved in connection with the robbery of Petersen. However, there was no evidence that such an assault took place after appellant and Petersen went into the funeral home office and discovered that the cash box was empty. We can speculate that an assault probably took place but such speculation is not sufficient to fill the gap in the required proof.


author: GLICKSTEIN, Judge. LETTS, Chief Judge,

text:
    David BLUDWORTH, as State Attorney, Fifteenth Judicial Circuit, Palm Beach County, Florida, Appellant, v. Jack ARCURI d/b/a A & B Auto Parts, Inc., Appellee.
    No. 80-1607.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joel M. Weissman of Law Offices of Ronald Sales, P. A., and Jerry Oxner of Oxner, Brown & Pickett, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

In an action brought by appellee for declaratory judgment the trial court held that section 812.055, Florida Statutes (Supp. 1978), was unconstitutional in that it violated the fourth amendment of the United States Constitution and article I, section 12 of the Florida Constitution. We reverse.

The parties stipulated in the trial court that appellee was regulated by section 812.-055, and that two law enforcement officers, one from Palm Beach County and one from another municipality in the county, demanded entrance to appellee’s place of business to look for a stolen Mercedes automobile and were allowed to search the premises under protest by appellee who was under threat of arrest. The only issue before the trial court was the constitutionality of the statute. No evidence was presented other than that to which the parties had stipulated.

The rule is that warrantless inspections are unconstitutional in that they violate the fourth amendment. Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Exceptions have been expressly recognized by the United States Supreme Court in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor dealer); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (gun dealer) and Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (stone quarry). A complete review of other federal as well as state court decisions, applying the rule as well as the exception in the subject businesses or in other industries, has been made by Judge Patel in his distinguished opinion in Rush v. Obledo, 517 F.Supp. 905 (N.D.Cal.1981).

In Colonnade the relevancy of Justice Douglas’s brief opinion does not lie in the disposition of the case, but in stating that “Congress had broad power to design such powers of inspection under the liquor law as it deems necessary to meet the evils at hand.” 397 U.S. at 76, 90 S.Ct. at 776. He went on to write: “We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures.” Id. at 77, 90 S.Ct. at 777.

Justice White first authored the exception in Biswell, then later the rule in Marshall. In the former, he concluded that close scrutiny of interstate traffic in firearms was of central importance in preventing violent crime, that inspections are a crucial part of seeing that firearms be distributed “through regular channels and in a traceable manner,” 406 U.S. at 315-16, 92 5.Ct. at 1596, and that inspections, to be a credible deterrent, must be unannounced and ever frequent. Finally, he said:

It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.

406 U.S. at 316, 92 S.Ct. at 1596. Later, in Marshall, 436 U.S. at 313, 98 S.Ct. at 1820, he said:

Certain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.

We would be burying our heads in the sand like the proverbial ostrich were we not to recognize that in Florida the evil at hand is the theft of motor vehicles and that the Colonnade-Biswell exception conspicuously applies. We need only refer to the Department of Law Enforcement, 1981 Annual Report; Crime in Florida (released March 30, 1982), which is probably now in the office of each appellate judge in this state. Between 1977 and 1981 the crime of motor vehicle theft increased over 50%. Whereas in 1977 there were 29,680 motor vehicle theft offenses, with a value of $58,048,067, 22.1% of which were cleared, by 1981 the number of offenses had increased to 45,707 and the value to $163,376,167 with 18.2% cleared. Id. at 35. The rate of motor vehicle thefts per 100,000 population jumped from 340.5 to 452.6. Id. at 15.

By applying the exception to the rule, rather than the rule, we are not riding toward the sunrise, flying the banner of social consciousness, for that is not the function of this court. Nor are we falling into the forbidden mire recognized by Justice Rehnquist in his dissent in Donovan v. Dewey of approving a statute that authorizes unannounced, warrantless searches of any property reasonably thought to house unlawful activity. Instead, we are being asked to determine whether the action of the legislature, in seeking to repel a cancer which it has recognized and identified as attacking the constitutional right of each citizen of Florida to acquire, possess and protect property, has constitutionally addressed itself to the means of repelling that cancer. We unquestionably think it has.

First, the application of section 812.055 is limited to those commercial enterprises that could be involved in the theft and disposition of stolen motor vehicles and parts; namely, junkyards, scrap metal processing plants, salvage yards, licensed motor vehicle dealers, repair shops, parking lots and parking garages. Second, the statute restricts physical inspection to normal business hours. Third, it narrows the purpose of the inspections to the location of stolen vehicles, the investigation of titling and registration of vehicles, or the inspection of wrecked or dismantled vehicles or records required by section 319.30, Florida Statutes (1979). Fourth, it works hand in glove with section 319.30, entitled “Dismantling, destruction, change of identity of vehicle; motor vehicle declared salvage,” sub-section (6) of which requires any junkyard or salvage yard to keep records of all motor vehicles acquired as junk and gives the same right of inspection to the Department of Highway Safety and Motor Vehicles, as well as its agents and employees as section 812.055 gives to law enforcement officers. The constitutionality of sub-section (6) was upheld in Reynolds v. State, 383 So.2d 228 (Fla.1980).

Based on the foregoing, we reverse the judgment of the trial court and remand for entry of judgment for appellant in accordance herewith.

REVERSED AND REMANDED.

DOWNEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

concurring specially-

The case that convinces me that I should concur in the majority opinion, is the latest offering on the subject from our United States Supreme Court. See Donovan v. Dewey, supra. In Donovan the court, among other pronouncements, made it very clear that “unlike searches of private homes . . . legislative schemes authorizing war-rantless searches of commercial property do not necessarily violate [the Fourth] Amendment.”

Nonetheless, I am wary of the particular statute now before us and somewhat restless with our decision. Moreover there are far greater “evil[s] at hand” in Florida than mere car theft. Immediately coming to mind are murder, rape and trafficking in drugs. Yet all three of these dastardly evils so far continue to merit Fourth Amendment protection. As a consequence I am not at all sure that the majority here is correct in confidently predicting that we are not falling into a “forbidden mire.” However, it is not my prerogative to argue with the pronouncements of the highest court in the land.

      . Section 812.055 provides:
      Physical inspection of junkyards, scrap metal processing plants, salvage yards, licensed motor vehicle dealers, repair shops, parking lots, public garages.—
      (1) Any law enforcement officer shall have the right to inspect any junkyard, scrap metal processing plant, motor vehicle salvage yard, licensed motor vehicle dealer’s lot, motor vehicle repair shop, parking lot, public garage, or other establishment dealing with salvaged motor vehicle parts.
      (2) Such physical inspection shall be conducted during normal business hours and shall be for the purpose of locating stolen vehicles, investigating the titling and registration of vehicles, inspecting vehicles wrecked or dismantled, or inspecting records required in s. 319.30.

      . The fourth amendment provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      .Section 12 provides:
      Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

      . Although the pre-trial stipulation does not expressly recite the precise nature of appellee’s business, it appears that he was engaged in the buying and selling of automobiles.

      . See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In Camara the warrantless search of an objecting homeowner’s premises based on the discretion of a municipal building code inspector was held to be a violation of the fourth amendment and See extended this concept to portions of commercial premises not open to the public.

      . The majority opinion reinstates the trial court’s decision which suppressed the evidence (liquor bottles) which were seized only after the federal agents broke and entered a locked storeroom without a warrant.

      . The opinion also quotes Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), for the statement that “The seizure of stolen goods is authorized by the common law _” 397 U.S. at 76, 90 S.Ct. at 776.

      . Art. I, § 2, Fla.Const.

      . The right of police and “peace officers” to inspect the required records of junk dealers extends back at least to Chapter 6923, Laws of Florida (1915). In Newman v. Carson, 280 So.2d 426 (Fla.1973), the court upheld the constitutionality of section 811.165, Florida Statutes (1970), which required dealers in junk and second-hand goods to maintain certain records and which authorized inspection at all times by police and peace officers. See also section 715.041, Florida Statutes (1979), entitled “Recovery of stolen property from pawnbrokers,” which makes available to law enforcement agencies and officers upon request the required records of pawnbrokers and authorizes the recovery by law enforcement officers of stolen property from pawnbrokers. We have earlier alluded to the comprehensive marshaling of decisions of federal and state courts in Judge Patel’s opinion in Obledo. To those we would add the following references involving warrant-less inspections of businesses described in this opinion:

        California

      Cal.Vehicle Code § 2805 (Deering Supp.1982); People v. Grey, 23 Cal.App.3d 456, 100 Cal.Rptr. 245 (1972); People v. Rosas, 1 Crim. No. 17702 (Cal. 1st Dist.Ct.App., Aug. 24, 1978) (unreported); People v. Percy, 109 Cal.App.3d 383, 167 Cal.Rptr. 279 (1980); People v. Lopez, 116 Cal.App.3d 600, 172 Cal.Rptr. 236 (1981).

        New Mexico

      Note, State v. Galio: An Administrative Search? 9 N.M.L.Rev. 419 (1979).

        New York

        People v. Pace, 111 Misc.2d 488, 444 N.Y. S.2d 529 (Sup.Ct.1981).

        Ninth Circuit

        Lewis v. McMasters, 663 F.2d 954 (9th Cir.1981).
      Finally, although not directly on point, see Federman v. State, Dept. of Business Regulation, Div. of Pari-Mutuel Wagering, 414 So.2d 28 (Fla. 3d DCA 1982), which upheld the constitutionality of Rule 7E--L02(23), Florida Administrative Code. The rule provides:

        The Florida State Racing Commission or the Steward representing the Florida State Racing Commission, investigating violations of law or the Rules of the Board, shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles and automobiles or other places within the track enclosure at which a race meeting is held, or other tracks or places where the horses eligible to race at said race meeting are kept, of all persons licensed by the Florida State Racing Commission and of all employees and agents of any race track association licensed by said Florida State Racing Commission; and of all vendors who are permitted by said race track association to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property of such persons or kept in such automobiles, stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed race track association in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby consent to such search as aforesaid and waive and release claims or possible actions for damages as they may have by virtue of any action taken under this rule.