author: NESBITT, Judge.

text:
    Philip PEZZELLA, Michael Pezzella and Robert Pezzella, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1558.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.

      John H. Lipinski, Miami, for appellants.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The issue before us is whether a search warrant for the seizure of personal property was constitutionally overbroad so as to require the suppression of evidence seized pursuant thereto. We find that it was and reverse.

The defendants entered a plea of nolo contendere to multiple charges of possession of narcotics and controlled substances, specifically reserving the right to appeal the denial of their motion to suppress evidence obtained as a result of the challenged search warrant.

The search warrant in question described the premises to be searched with great particularity. However, the command of the warrant, with respect to the personal property to be seized, provided:

“Possession of a controlled substance: In violation of F/S/S 896.13 [893.13].”

The Fourth Amendment to the Constitution of the United States, which guards against unreasonable searches and seizures, specifically provides: “[N]o warrant 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.” Article I, Section 12 of the Declaration of Rights of the Florida Constitution contains substantially the same positive requirement. Section 933.05 of the Florida Statutes (1977) redundantly contains a similar prohibition.

It is settled that if a warrant fails to adequately specify the material to be seized, thereby leaving the scope of the seizure to the discretion of the executing officer, it is constitutionally overbroad. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). What constitutes a sufficient description is dependent upon the circumstances of the case.

In Bloom v. State, 283 So.2d 134 (Fla. 4th DCA 1973), a search warrant commanding the seizure of “stolen property [possessed] in violation of Section 811.16, Florida Statutes,” was held to insufficiently detail the property to be seized. Also, in United States v. Quantity of Extracts, Bottles, etc., 54 F.2d 643 (S.D.Fla.1931), a search warrant commanding the seizure of “certain property designed for use in the unlawful manufacture of intoxicating liquor, which is being used as a means of committing a misdemeanor, to-wit, a violation of the National Prohibition Act,” was similarly held over-broad. There, the court stated:

When dealing with property which is inherently innocuous, the affidavit and warrant should contain at least a designation by generic terms of the class, or classes, of property to be searched for and seized. The executing officer’s sole function is to apply the description to its subject-matter. Performance of that function may frequently involve the exercise of a limited description of such generality, however, as to lodge in the executing officer virtually unlimited discretion as to what property shall be seized, is repugnant ... to the Constitution ....

However, in United States v. Davis, 589 F.2d 904 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979), a search warrant which authorized the seizure of “white string, brown paper, correlated [sic] paper . ...” was held sufficient. There, the investigating officers were seeking to link an explosive device sent through the mails which was detonated due to some human causation. In Davis, the Court articulated the reason for upholding the validity of the warrant:

When an exact description of the objects of the search is a “virtual impossibility,” however, “the searching officer can only be expected to describe the generic class of items he is seeking.” . . . These materials were listed in the search warrant because investigators found pieces of such materials in the vicinity of the explosion. Any more particularized description of the materials would have been virtually impossible. Those executing the search warrant could not be expected to chemically analyze prior to seizure any items in those general classes to determine if they were identical to the material found at the explosion site.

589 F.2d at 906.

In determining the degree of specificity required in the description of goods to be seized, it is necessary to look at the nature of the thing to be seized and the particular circumstances of the case. North v. State, 159 Fla. 854, 32 So.2d 915 (1947). Keeping in mind that the purpose of requiring particularity in the description of things to be seized under a warrant is to prevent general searches, Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), and to identify the property with reasonable certainty so as to leave nothing to the discretion of the officer executing the warrant, Marrón v. United States, supra, we find that, upon the circumstances presented in this case, it is obvious that the search warrant was overbroad and therefore vulnerable to a motion to suppress.

A reading of the affidavit in support of the search warrant in the present case confirms its overbreadth. In the affidavit, the chronology, facts, and circumstances related through the medium of a confidential informant were all with respect to the defendant’s possession, sale, and distribution of methaqualone. Since the supporting affidavit referred, with specificity, to a particular controlled substance, there was no need or purpose shown as to order the seizure of any controlled substances. The officers had the ability and the information to properly describe what they were looking for. Such a command gave the executing officers carte blanche authority to rove through the defendant’s house, and with their lawful presence, conduct an exploratory search.

Although it has been often stated, it may be worth reiterating that physical attachment of a supporting affidavit to the search warrant and the warrant’s specific reference to and incorporation of the affidavit will often cure warrants which are otherwise deficient by reason of lack of specificity, Booze v. State, 291 So.2d 262 (Fla.2d DCA), cert. denied, 297 So.2d 836 (Fla.), cert. denied, 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974); Bloom v. State, supra, and under the doctrine of severability, may cure warrants which are overbroad in terms of describing the items to be seized. State v. Quigg, 115 Mont. 119, 132-33,467 P.2d 692, 699 (1970). At least such a practice will have the salutary effect as pointed out in Booze v. State, supra, at 263, quoting from Judge Leventhal’s opinion in Moore v. United States, 461 F.2d 1236, 1239 (D.C.Cir.1972) that:

[i]t makes the affidavit of probable cause immediately available to the person whose premises are entered, and explains to him at the outset the reason for this intrusion on his privacy. And it avoids any possible claim or suspicion by the citizen involved that the affidavit later located in the official file was inserted after the fact of the search.

Finally, defendants assert that Section 896.13 of the Florida Statutes was non-existent at the time the warrant was issued and therefore, the warrant is defective because it makes reference to it. We reject this contention because search warrants are not to be scrutinized for technical niceties. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965); State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979).

We note that reversal of these convictions will have no practical effect upon the conviction of Michael Pezzella on his plea of nolo contendere to the offense of battery on a police officer which obviously was unrelated to the search warrant. Accordingly, the judgments of conviction of the defendants, arising out of the evidence obtained on the constitutionally overbroad search warrant, are reversed.

      . We do, however, recognize that the particularity requirement of the search warrant has been applied on a sliding scale according to the item to be seized. When the items are books, papers, film, recordings, etc., First Amendment freedoms will tolerate only scrupulous exactitude. Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). When contraband is sought, the courts have been least demanding in their description requirements. North v. State, supra. However, this “sliding scale” must be applied under the parameters of reasonableness. When those seeking a warrant have the ability and information to enable them to describe with particularity that which they seek, the Constitution requires that they do so.

      . The appropriate section was 893.13, Florida Statutes (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COSTA BELLA DEVELOPMENT CORP., a Florida Corporation, Appellant, v. Miguel RECAREY, Jr., Olga Recarey, Miguel Recarey and Carman Recarey, and Donald H. Altman, Appellees.
    Nos. 79-1942, 79-1943.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.

      Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    Koeppel, Stark & Newmark and Robert L. Koeppel and Robert Gellman, Robinson & Greenberg and Barry N. Greenberg, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings this appeal from two orders which dismissed its amended complaint for failure to state a cause of action against the appellees, defendants below, in their individual capacities. We find that a cause of action was stated and reverse.

The complaint alleges that the plaintiff sold land to Costa Development Corporation, which was owned and controlled by the defendants, and took back as part of the purchase price a purchase money mortgage encumbering the property. A subsequent mortgage was then taken out on the property by the defendants. Plaintiff allegedly was induced, through a fraudulent conspiracy, to subrogate its mortgage to that of the second lender. Plaintiff further alleged that the defendants, in their individual capacities, guaranteed this second mortgage and that those guarantees acted as added security for the appellant’s mortgage but that the defendants subsequently sold the property to a dummy corporation of the second lender in return for a quantity of cash and a release from their personal guarantees. These facts sufficiently established the plaintiff’s cause of action against the defendants for fraudulently conspiring to extinguish plaintiff’s rights and security under the mortgage. Ocala Loan Company v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963).

We find that the complaint does set forth a cause of action against the individual defendants and reverse the orders of the trial court.

      . One order was entered in favor of appellee, Donald H. Altman; the other was entered in favor of appellees, Recareys.


text:
    William “Bill” POLERO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2048.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.
    Solomon & Mendelow and Harold Mende-low, Miami Springs, Charles Snowden, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Appellant was charged by information with five counts of forgery and five counts of grand theft, second degree. He was found guilty by the jury of forgery on all counts and not guilty of grand theft on all counts.

Appellant was sentenced to thirty months in the state penitentiary on each of the forgery counts, each to run concurrently.

In this appeal appellant contends that the trial court erred in (1) failing to grant a judgment of acquittal; (2) failing to grant appellant’s Motion to suppress evidence derived from electronic surveillance; and (3) in ruling that the evidence was sufficient to support the jury’s verdict of conviction.

We have carefully considered appellant’s contentions in light of the record, briefs and argument of counsel, and have concluded that no reversible error has been demonstrated. Rodriquez v. State, 297 So.2d 15 (Fla.1974); Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979); Hudson v. State, 368 So.2d 899 (Fla. 3d DCA), cert. denied 378 So.2d 345 (Fla.1979); State v. Buffa, 347 So.2d 688 (Fla. 4th DCA 1977); Jones v. State, 343 So.2d 921 (Fla. 3d DCA), cert. denied 352 So.2d 172 (Fla.1977); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976), cert. denied 345 So.2d 420 (Fla.) cert. denied 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064 (1977); Marshall v. State, 321 So.2d 114 (Fla. 1st DCA 1975).

Therefore, the judgment and sentence are affirmed.

Affirmed.


text:
    Anthony FIGUCCIO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-94.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 12, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Colodny & Fass, North Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Francoeur, 387 So.2d 1063 (Fla. 5th DCA 1980).


author: DANIEL S. PEARSON, Judge.

text:
    MERCY HOSPITAL, INC., Appellant, v. Wyatt JOHNSON, Appellee.
    No. 80-138.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Aubrey V. Kendall and Jeffrey R. Surlas, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the trial court’s judgment in favor of Johnson, an attorney from whom Mercy Hospital, Inc., his client, sought to recover alleged overpayments of attorney’s fees. We hold that where, as here, the attorney’s fees received by Johnson were paid pursuant to purported agreements between him and Mercy entered into well after the attorney-client relationship had been established, it was Johnson’s burden, which he failed to meet, to show the fairness of the purported agreements by clear and convincing proof. Halstead v. Florence Citrus Growers Association, 104 Fla. 21,139 So. 132 (1932); In re Estate of Kindy v. Krongold and Bass, P. A., 310 So.2d 349 (Fla. 3d DCA 1975); Reid v. Johnson, 106 So.2d 624 (Fla. 3d DCA 1958).

We remand for a new trial with directions that Mercy Hospital, Inc. is entitled to recover the fees at issue paid to Johnson, less the amount of fees which Johnson establishes are due to him under a quantum meruit theory. See In re Estate of Kindy v. Krongold and Bass, P. A., supra.

Reversed and remanded with directions.


text:
    Ralph CHERIN, suing on behalf of himself and all others similarly situated, Appellants, v. SOUTHERN STAR LAND AND CATTLE COMPANY INC., etc., et al., Appellees.
    No. 80-154.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Marsha Palmer Niles, Coral Gables, Frates, Jacobs, Farrar, Novey & Blanton, Miami, for appellants.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, Tew, Critchlow, Sonberg, Traum & Friedbauer and Richard H. Critchlow; Becker, Polianoff & Streitfeld and Edward S. Polk; Fort Lauderdale, Montgomery, Lytal, Reiter, Denney, Searcy and George E. Mastics, West Palm Beach, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The order striking the plaintiff’s claim for failure to assert a class action for fraud is affirmed. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla. 1976) and Osceola Groves v. Wiley, 78 So.2d 700 (Fla. 1955).

The Supreme Court, in Frankel v. City of Miami Beach, supra, has expressed doubt as to the desirability of continued adherence to the fraud class action rule enunciated in Osceola Groves, supra, and we are not privileged to overrule a principle enunciated by the Supreme Court. We therefore certify this question to the Supreme Court as one which passes upon a question of great public importance, so as to afford it a vehicle for review as provided for in Article V, Section 3(b)(4) of the Florida Constitution.

Affirmed.


author:
PER CURIAM.
      SCHWARTZ, Judge

text:
    Ernest THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1539.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.
    Ernest Thomas, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

SCHWARTZ, Judge

(dissenting).

Thomas’ rule 3.850 motion was based on the claim that he was under the influence of psychotropic medicine when he pled guilty to first degree murder in 1973. The record indicates that this issue was specifically raised when the plea was entered. Compare, Dixon v. State, 252 So.2d 594 (Fla. 3d DCA 1971). The transcript of the colloquy, however, is internally contradictory on several key issues. On at least two occasions, Thomas avowed that he understood the proceedings completely; on another, he stated, “I don’t understand anything today.” Similarly, he told the court both that he had and that he had not taken the drugs in question on the day of the plea. I do not believe, therefore, that it can be said that the record shows “conclusively that the appellant is entitled to no relief.” Fla.R.App.P. 9.140(g). See, State v. Weeks, 166 So.2d 892, 897 (Fla.1964); Campi v. State, 371 So.2d 1085 (Fla. 4th DCA 1979); Estrella v. State, 215 So.2d 489 (Fla. 3d DCA 1968). Accordingly, I would reverse the order below and remand the cause for an evidentiary hearing. Coates v. United States, 273 F.2d 514 (D.C.Cir.1959); see, Manley v. United States, 396 F.2d 699 (5th Cir. 1968).


text:
    Milton OGUR and Colonial Penn Insurance Company, Appellants, v. Mollie MOGEL et al., Appellees.
    No. 80-1641.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    As Amended On Denial of Rehearing Dec. 12, 1980.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Daniels & Hicks and Sam Daniels, Miami, Richard E. Hardwick, Coral Gables, Greene & Cooper, Preddy, Kutner & Hardy and Michael Parenti, Frates, Floyd, Pearson, Stewart, Richman & Greer and Andrew J. Mirabito, Robert A. Ginsburg and Thomas Goldstein, Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & Zientz and Arnold Hessen, Stanley M. Rosenblatt and Edward B. Greene, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

Mollie Mogel, a pedestrian injured when a rental vehicle and another car collided, sued, inter alia, the operator, lessee and owner of the rental vehicle, and their respective insurers. These defendants filed cross-claims for indemnity against one another and, thereafter, cross-motions for summary judgment seeking, inter alia, a determination of the order in which the insurance coverage would be applied were Mogel ultimately to prevail in her suit. The trial court entered a Summary Judgment Regarding Insurance Coverage, finding that the insurers of the operator, lessee and owner, would, successively, be liable to the extent of their respective policy limits.

Ogur and Colonial Penn Insurance Company (the lessee and his insurer) took this interlocutory appeal, which the operator, the owner and their insurers have moved to dismiss.

We dismiss the appeal upon a holding that (1) Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), the purported authority for this appeal, gives us jurisdiction of an interlocutory appeal only from non-final orders which determine “the issue of liability in favor of a party seeking affirmative relief”; (2) the trial court’s order, setting forth the future indemnity rights of the defendants and the sequence in which the defendants would be responsible to pay any judgment in favor of Mogel, (a) did not determine an “issue of liability,” since the liability of any of these defendants was necessarily inchoate prior to such a judgment, cf. American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (Fla. 5th DCA 1980) [holding that a determination by the trial court that a suit can appropriately be brought as a class action merely “allows the cause to proceed towards a potential liability as yet undetermined” and is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(-a)(3)(C)(iv)], and (b) was not a ruling on motions which sought “affirmative relief,” see Rhein v. Rhein, 244 Minn. 260, 69 N.W.2d 657 (1955) (“affirmative relief” is that for which defendant might maintain an action entirely independent of plaintiff’s claim and which he might proceed to establish and recover even if plaintiff abandoned his cause of action or failed to establish it); Simpson v. Superior Court In and For Los Angeles County, 68 Cal.App.2d 821, 158 P.2d 46 (Cal.App.2d Dist. 1945) (affirmative relief does not include mere defensive matter, but means the allegation of new matter which amounts to a counterattack); compare York Insurance Company v. Becker, 364 So.2d 858 (Fla. 2d DCA 1978); (3) the result is unaffected by cases decided under former Florida Appellate Rule 4.2a (1962), which authorized an interlocutory appeal from a partial summary judgment on the issue of liability without regard to whether the issue was decided “in favor of a party seeking affirmative relief,” see, e. g., Jerome Naglebusch, Inc. v. Frank J. Rooney, Inc., 342 So.2d 121 (Fla. 3d DCA 1977).

Appeal dismissed.

      . Liberty Mutual Insurance Company, which insured the operator, was to be primarily liable to the extent of its coverage of $50,000; Colonial Penn Insurance Company, which insured the lessee, was to be secondarily liable to the extent of its coverage of $100,000; American Southern Insurance Company and Alliance Insurance Company, which insured the owner rental car agency, were to provide the third and fourth layers of coverage to the extent of $50,-000 and $450,000, respectively.


text:
    Ray E. GANS, D. C., Appellant, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, Division of Professions, Board of Chiropractic Examiners, Appellee.
    No. 79-186.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellant.
    Jim Smith, Atty. Gen., and John Griffin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

The administrative order under review is affirmed upon a holding that: (a) the standard of proof employed by the hearing examiner in reaching the findings of fact in this cause was not one of preponderance of the evidence, as both parties to this appeal have mistakenly assumed, and, accordingly, we have no occasion to determine whether the utilization of such a standard would in the abstract, constitute reversible error, as urged by appellant, it being abundantly clear that such an alleged error did not occur in this case, Cottrell v. Amerkan, 160 Fla. 390, 35 So.2d 383, 384 (1948) (court syllabus no. 1); 3 Fla.Jur.2d “Appellate Review” § 286 (1978); and (b) the excessive penalty point raised by the appellant herein has no merit. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1979).

Affirmed.


text:
    William L. FOX, Appellant, v. Rita M. LOEFFLER, Florence E. Fox, and Ronald E. Jones, Appellees.
    No. 78-2166.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Rehearing Denied Dec. 12, 1980.
    William L. Fox, in pro. per.
    J. Burke Culler, Jr., of Adams, Coogler, Watson & Smith, West Palm Beach, for appellee-Jones.
   PER CURIAM.

William Fox, pro se, appeals a final judgment dismissing with prejudice his fourth amended complaint against appellee Ronald E. Jones, as well as an earlier non-final order dismissing Counts III and IV of his third amended complaint against the same appellee.

Having given due consideration to the issues raised by this appeal, we are of the opinion that appellant has failed to adequately state a cause of action against Jones under any legal theory and that the legal insufficiencies will not be cured by further amendment.

Accordingly, the final judgment is affirmed.

AFFIRMED.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.

      . Rita M. Loeffler and Florence E. Fox were named in the complaint as defendants. However the complaint was not dismissed as to them and consequently their status Is immaterial to our determination of this appeal.


author: ANSTEAD, Judge.

text:
    Michael Doran DEARTH II, Appellant, v. STATE of Florida, Appellee.
    No. 79-1933.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Rehearing Denied Dec. 10, 1980.
    Richard L. Jorandby, Public Defender, and Martin H. Colin, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

In this appeal, Michael Dearth II challenges the validity of a condition of his probation that requires him to voluntarily submit to reasonable searches of his person, home or vehicle by his probation officer or authorized police officers.

Dearth entered a plea of no contest to the charge of grand theft. He admitted to participating in the theft of some $300 worth of carpeting by accepting the sum of $20 to “look the other way” while the carpeting was removed from premises where he worked as a night watchman. The trial court adjudicated Dearth guilty and placed him on probation for five years. The record reflects that Dearth has no prior criminal record but is an admitted alcoholic. Prior to accepting Dearth’s plea, the following colloquy between the court and defense counsel took place:

THE .COURT: Okay. You have explained to your client about searches by the police and that he must voluntarily agree to accept that as a condition of probation?
MR. GOLDSTEIN: Yes, sir. In all fairness to Mr. Richardson, this is the case that I thought was worthy of my filing an appeal on the Court’s written waiver of that search and seizure condition.
I would ask the Court to allow me to enter a plea of no contest in Mr. Dearth’s behalf, allowing me to specifically appeal that point. If the Court doesn’t allow me to do that, I think I can do it anyway.
THE COURT: How do you get around signing my form?
MR. GOLDSTEIN: We would sign the form.
THE COURT: The Court says then, why did you sign it?
MR. GOLDSTEIN: Because the alternative is going back to jail or the alternative is going to trial and perhaps being found guilty. We are attacking mainly the voluntariness of his signing that form, however, we will sign it. I still think we have an appealable point.
THE COURT: I think it ought to be appealed. I agree with you.

The state contends that Dearth is precluded from challenging the condition of probation because he expressly consented to its imposition. Dearth maintains that his consent should not be viewed as a free and voluntary waiver of his constitutional guarantee against unreasonable searches because the court required him to consent in order for him to be placed on probation.

In Grubbs v. State, 373 So.2d 905 (Fla.1979), the Florida Supreme Court held that a unilaterally imposed condition of probation requiring a probationer to consent at any time to a warrantless search by law enforcement officers is violative of the Fourth Amendment to the United States Constitution and Article I, Section 12, of the Florida Constitution. The court specifically reserved determination of the issue here raised, namely, the effect of an express consent by a probationer to such a condition.

The issue to be resolved, then, is whether a probationer, by expressly agreeing to a search condition in order to receive probation in lieu of incarceration, should be deemed to have waived the right he would otherwise have under Grubbs to be protected from warrantless searches by law enforcement officers.

Initially we note that while Grubbs did not address the issue of express consent, it did address the issue of the reasonableness of extending the authority to search probationers to police officers and found such action unreasonable and unconstitutional. That is, while substantial and compelling reasons were found to authorize searches by probation officers, no such reasons were found to justify such searches by other law enforcement officers. So, we reject, on the authority of Grubbs, the contention that it is necessary to extend the search authority to police officers in order to properly supervise probationers.

Further, we do not believe it is reasonable to conclude that a probationer’s consent to such a condition is voluntary when his only other alternative is incarceration. We are aware of authority to the effect that a probationer voluntarily waives his Fourth Amendment rights as a condition to receiving probation instead of immediate incarceration. The apparent rationale of these holdings is that the waiver is voluntary because a defendant has the “free choice” to refuse probation and undergo incarceration if he considers the conditions of probation more harsh than the sentence the court would otherwise impose. We cannot agree with this reasoning.

In reality a defendant has little say in determining the terms of his probation. Under Florida law, the trial court is vested with broad discretionary authority to grant probation and to set the terms thereof. Section 948.01(3), Florida Statutes (1979), provides that the trial court may place a defendant upon probation if it appears to the court “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.” Section 948.03 vests authority in the trial court to determine the terms and conditions of probation. To be valid the conditions should be reasonably related to the offense involved, the rehabilitation of the defendant or the protection of the public. Grubbs v. State, supra. Under this scheme of probation there is no requirement that the defendant consent to the conditions that are imposed. The defendant may have some voice in determining the terms of probation by appealing to the court’s discretion, but in essence the trial court’s determination is subject only to the test of reasonableness set out, supra, and the defendant’s consent to such terms, if they are otherwise reasonable, is not material to their legality. Of course, if the defendant rejects valid conditions of probation or refuses to comply therewith the trial court may sentence the defendant to a term of incarceration.

In our view the proper test of volun-tariness to be applied to the consent obtained in the instant case is the test set out in Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) where the court applied the traditional standards of voluntariness developed in coerced-confession cases to determine whether a defendant’s purported consent to a police search was voluntary. Two comments from the court’s opinion are especially pertinent to a resolution of the issue involved herein:

As with police questioning, two competing concerns must be accommodated in determining the meaning of a “voluntary” consent-the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.
Schneckloth 93 S.Ct. at p. 2048.

As noted above, the Florida Supreme Court in Grubbs, supra, has already rejected the view that there is a legitimate need for police officers other than probation officers to be granted authority to search probationers. And the state has neither argued nor does the record demonstrate any reasons peculiar to this case necessitating that Dearth be subjected to warrantless searches by anyone other than his probation officer. So, one of the competing concerns discussed in Schneckloth, the legitimate need for such searches, is not of great weight here.

On the other hand, the requirement under Schneckloth that there be an absence of coercion is of great concern to us. As noted by one commentator:

Given the long established rule that a confession is not voluntary when given in response to an assurance by the maker “that, by so doing, he might at least obtain a mitigation of the punishment for the crime which otherwise would assuredly follow,” it would seem doubtful that any waiver of Fourth Amendment rights obtained as the quid pro quo of a grant of probation or parole could pass muster under Schneckloth.

The same conclusion was expressed pointedly by Judge Curtin in United States ex rel. Coleman, supra.

However parole is characterized, “the liberty is valuable” and a return to a lifestyle approximating normalcy is cherished. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593 [2600], 33 L.Ed.2d 484 (1972). See also United States ex rel. Johnson v. New York State Board of Parole, 500 F.2d 925 (2d Cir. 1974). Only Coleman’s signature on the dotted line could secure the benefit of parole. A refusal to sign slammed the cell door shut until January 1977, more than eight years. (See Exhibit I, supra.) Under these circumstances, I find sufficient coercion present to invalidate the consent to search executed.

We likewise conclude that Dearth’s choice between a term of imprisonment or a term of supervised freedom was really no choice at all. Such a choice surely violates the Schneckloth concern that consent not be coerced by explicit or implicit means.

This does not mean that a defendant’s status as a probationer may not be considered in determining whether a search and seizure is reasonable or whether there is probable cause for the issuance of a search warrant. State v. Gansz, 297 So.2d 614 (Fla. 4th DCA 1974), cert. denied 303 So.2d 645 (Fla.1974); Grubbs v. State, supra. Rather it simply means that the probationer may only be subjected to reasonable searches by his probation officer or other police officers considering the circumstances prevailing at the time of the search. Grubbs v. State, supra. Further, we do not foreclose the possibility that circumstances may reasonably require a condition of probation allowing searches by other than probation officers. We simply do not find such circumstances here.

In fact, the trial court below only required the probationer to consent to “reasonable” searches. If indeed subsequent searches are found to be reasonable based upon the circumstances then prevailing, the probationer’s consent would not be necessary. Grubbs, supra. On the other hand, our ruling does not preclude the probationer from subsequently voluntarily consenting to individual searches. But such searches by law enforcement officers may not be justified on the basis of the search condition involved herein.

In conclusion we hold that the condition of probation requiring the probationer to consent to searches by any law enforcement officers is invalid. Accordingly, the order entered below is hereby reversed with directions that the words “and authorized police officer” be stricken from paragraph 9 of the conditions of probation.

MOORE and HURLEY, JJ., concur.

      . People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), (dissent) cert. denied 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478 (1972); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); People v. Keller, 76 Cal.App.3d 827, 143 Cal.Rptr. 184 (4th DCA 1978); People v. Bremmer, 30 Cal.App.3d 1058, 106 Cal.Rptr. 797 (2d DCA 1973); People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250 (1975). Cf. Roman v. State, 570 P.2d 1235 (Alaska 1977); United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); United States v. Pierce, 561 F.2d 735 (9th Cir. 1977), cert. denied 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978); United States ex rel. Coleman v. Smith, 395 F.Supp. 1155 (W.D.N.Y.1975); Diaz v. Ward, 437 F.Supp. 678 (S.D.N.Y.1977).

      . See People v. Mason, supra; Seim v. State, 590 P.2d 1152 (Nev.1979); Huffman v. United States, 259 A.2d 342 (D.C.App.1969), affd. 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), reversed on other grounds, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974); People v. Cumhuriyet, 604 P.2d 690 (Colo.App.1979); cf. Dean v. State, 151 Ga.App. 847, 261 S.E.2d 759 (1979). Cf. Himmage v. State, 88 Nev. 296, 496 P.2d 763 (1972).

      . People v. Mason, supra; In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970); People v. Cumhuriyet, supra.

      . 3 W. LaFave, Search and Seizure, 429 (1978).


author: SHAW, Judge.

text:
    E. C. PRIDGEN, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION and Division of Risk Management Services, Appellees.
    No. SS-338.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.

      Dale E. Rice, Crestview, for appellant.
    J. Nixon Daniel, III, of Beggs & Lane, P. A., Pensacola, for appellees.
   SHAW, Judge.

The 65-year-old claimant suffered a compensable injury to his back in 1977 that was subsequently diagnosed as an acute thoracic lumbar strain. The deputy commissioner found the claimant permanently totally disabled and apportioned out of the award 45% of the claimant’s over-all disability.

The claimant has worked for the present employer since 1962 and has a work history which includes farming, carpenter’s helper, truck driver and a 1973 jobvconnected injury which resulted in a compression fracture. The treating physician assigned an impairment rating of 20% to the 1977 compensable back injury and opined that because of the combined effect of the back condition, arthritis, heart problems and dizziness, the claimant is now totally incapacitated for work.

The claimant at the time of the award was permanently totally disabled with a 20% anatomical disability attributable to the 1977 accident. It can safely be assumed that the difference between the anatomical disability and the over-all disability rating reflects loss of wage earning capacity, which does not necessarily follow in the same proportion as anatomic impairment. Arcuri v. Morgan-Oswood & Associates, IRC Order 2-3207 (July 28, 1977). It was, therefore, incumbent upon the deputy to apportion out of the award only that portion of the over-all disability as was shown to be impacting upon wage earning capacity at the time of the award. Richey v. Peninsular Casket Company, IRC Order 2-3458 (June 15, 1978); Kummer v. Broward Highland Construction Corp., IRC Order 2-3025 (August 30, 1976).

The claimant was gainfully employed and maintaining an average weekly wage approximately two times the existing minimum wage prior to the 1977 injury. There is, therefore, no support in the record for the deputy’s conclusion that because of preexisting conditions he probably would have been limited to minimum wage type work, had he been forced into the open labor market. The deputy couples this erroneous finding with a determination that since the osteoarthritis, the heart problems and dizziness preexisted the back injury there must be apportionment. This fails to take into consideration that all medical impairments are not disabilities for compensation purposes. In apportioning preexisting impairments a deputy must initially determine: (1) whether there is any evidence that normal acceleration of the preexisting impairment played a part in the resulting disability; (2) was the impairment causing any disability at the time of the accident. If these two questions are answered negatively there can be no apportionment because the resulting disability of necessity results solely from the accident or from acceleration or aggravation of the preexisting disease and is compensable. Killebrew Manufacturing Company v. Dawson, 370 So.2d 460 (Fla.1979); Dillon v. Bill’s Trailer Sales, Inc., IRC Order 2-3323 (Jan. 16, 1978). The deputy skipped this initial inquiry and concluded that because of preexisting medical conditions the claimant was unable to perform heavy labor before the 1977 accident, ergo, 45% should be apportioned out of his over-all disability. The order lacks a finding as to what part, if any, the preexisting impairments played in the resulting disability. Without such a finding the 45% apportionment lacks a basis for appellate review.

The order is accordingly reversed and the cause is remanded to. the deputy for further consideration and findings in accordance with this opinion.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


author: BOOTH, Judge.

text:
    SULLIVANS ISLAND SEAFOOD COMPANY, a South Carolina Corporation, Appellant, v. ISLAND SEAFOOD COMPANY, a Florida Corporation, Appellee.
    No. TT-232.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Norwood S. Wilner, of Zisser, Robison & Spohrer, Jacksonville, for appellant.
    Fred Butler, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal and cross-appeal from final judgment in a cause tried to the court without a jury. Appellee was the seller, and appellant the buyer, of some 44,370 pounds of shrimp. The trial court found appellee’s tender of the shrimp to be nonconforming under Florida Statutes § 672.2-601; that appellant rightfully and timely inspected and rejected the shrimp with proper notice; and that appellee gave no instructions to appellant as to the disposition of the tendered shrimp after notice of their rejection. These findings are essentially undisputed. The issue here is the damage awarded in the amount of $29,755.04 plus costs, an award challenged by both sides.

The trial court’s order is, in pertinent part, as follows:

8. Plaintiff stored the shrimp at its expense in Mobile and eventually reshipped them and sold them piecemeal over a period of time extending from 1977 to mid 1978, recovering in the range of $80,-000 to $90,000 as resale proceeds.
9. Some 30 days after plaintiff’s rejection, while the tendered shrimp were warehoused in Mobile, Alabama, one Albert King, a seafood merchant, inspected the shrimp and made a good faith offer to buy the tendered lot at a price of $.30 per pound less than plaintiff’s purchase price. Plaintiff declined this offer.
10. The decision not to accept King’s offer was made at plaintiff’s peril.
11. Plaintiff is entitled to recover the difference between the offered price and the purchase price, plus sales commission and incidental expenses incurred in the storage and inspection of said shrimp up to the time of Mr. King’s offer, plus interest where appropriate as set out in the addendum hereto.

By addendum to the final judgment, the court computed the damages as follows:

Price Difference:
$.30 lb. x 44,370 lbs. $13,311.00
Commission: 10,537.77
Storage: 194.02
Inspection: 747.15
Interest: 4,965.10
Total: $29,755.04

Thus, the trial court determined that appellant should have sold the shrimp to Albert King, whom the record shows discussed the purchase of the entire lot. The record also shows that appellant and King were between “20 and 30 cents per pound apart” on price. Apparently, the trial judge computed damages based on the assumption that appellant was asking its full purchase price, $118,688.70, and that the potential buyer, King, was offering between 20 and 30 cents a pound less than that amount. The record, however, does not reveal what price King was willing to pay; and, in fact, the evidence falls short of showing that an offer to purchase at any price was made.

Findings number nine and eleven of the trial court’s order, supra, based as they are on a supposed offer by King, are, accordingly, set aside. Also set aside is the trial court’s finding number ten that the failure to sell to King was at appellant’s “peril.” What is required under Florida Statutes § 672.2-603 is a showing of lack of good faith on the part of the buyer such as appellant in failing to make a salvage sale of the nonconforming merchandise. The question is whether there was a good faith exercise of reasonable business judgment in an effort to mitigate damages. Appellant here cannot be held to have acted at its peril under this standard, and the record is devoid of evidence showing a lack of good faith.

Accordingly, the judgment below is affirmed in part and reversed in part, and the cause is remanded for computation of damages in accordance herewith.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

      . Florida Statutes § 672.2-603(1), (3):
      (1) ... [W]hen the seller has no agent or place of business at the market of rejection a merchant buyer is under a duty after rejection of goods in his possession or control to follow any reasonable instructions received from the seller with respect to the goods and in the absence of such instructions to make reasonable efforts to sell them for the seller’s account if they are perishable or threaten to decline in value speedily.
      (3) In complying with this section the buyer is held only to good faith ....


text:
    Robert E. DRURY, Appellant, v. Alvin W. SEELEY and Las Palmas, Ltd., a Bahamian corporation, Appellees.
    No. 78-422.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellant.
    Peter N. Hanna, Fort Lauderdale, for appellee Seeley.
   PER CURIAM.

This matter is before us to review a final summary judgment entered against the appellant on a claim arising out of a corporate debt and an order dismissing with prejudice appellant’s counterclaim. We find no error in the dismissal of the counterclaim. However, although there is substantial evidence in the record to support the summary judgment, there is also competent evidence controverting the claim against the appellant. Under such circumstances we believe it was error to enter summary judgment.

Accordingly, the final summary judgment is reversed with directions for further proceedings in accord herewith.

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


author: BERANEK, Judge.

text:
    PALM BEACH COUNTY NATIONAL UTILITY COMPANY, INC., Appellant, v. PALM BEACH COUNTY HEALTH DEPARTMENT, Appellee.
    No. 78-2099.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Gary J. Nagle of Scott, Burk, Royce & Harris, P. A., Palm Beach, for appellant.
    N. Suzanne Hunter, West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from a decision of the Palm Beach County Environmental Control Board. The Board found appellant guilty of maintaining an abandoned and improperly plugged water well. We reverse and remand for further proceedings.

Appellant, a utility company, owns real estate in Palm Beach County containing a water well which they plugged by placing a cap on it. The Palm Beach County Health Department cited the appellant for noncompliance with Chapter 17-22.14 of the Florida Administrative Code. The Health Department charged that appellant had merely capped the well instead of properly plugging it in accordance with the requirements of the Florida Administrative Code. Prior to hearing before the Palm Beach County Environmental Control Hearing Board, the appellant moved to dismiss the charge against it on several grounds. The motion to dismiss was denied and an order subsequently entered requiring that the water well be plugged in a manner meeting approval of the Department of Environmental Regulations. We are not advised by any party of any danger to public health as a consideration in this case. The well is apparently not in use as a public or private water supply.

Appellant was cited for and found to be in violation of the Palm Beach County Environmental Control Ordinance 76-1. More specifically, appellant was found to be in violation of Chapter 17-22.14 of the Florida Administrative Code which requires plugging of wells no longer in use. The County Ordinance 76-1, Section 2, reads in relevant part:

All rules to date adopted by the Florida Department of Environmental Regulation . .. pursuant to (Chapter 381, Florida Statutes) ... are hereby adopted and incorporated by reference as part of this Ordinance to the same extent and to the same effect as if the provisions of each ... rule had been set out in full. (Emphasis supplied).

The county ordinance under which appellant was charged adopted by reference the State regulation. As appellant argued by motion to dismiss, Chapter 17-22.14 of the Florida Administrative Code was repealed effective March 9, 1978, which was prior to the date of the Health Department’s initial charges. Appellant thus argued that the repeal of the State regulation on water wells meant there was in fact no regulation in effect in Palm Beach County because the County had merely adopted the State regulation by reference.

The County Hearing Board denied the motion to dismiss and we reverse on this ground. A statute or regulation may adopt by reference another statute or regulation. Once adopted by specific reference, the subsequent repeal of the initial statute will not have the effect of rendering void the latter adoption by reference unless a contrary intent clearly appears. Overstreet v. Blum, 227 So.2d 197 (Fla.1969). Florida follows the general rule which distinguishes between adoption by specific reference and adoption by general reference. If adopted by general reference, the rule is to the contrary of that applied to adoptions by specific reference and the subsequent repeal of the regulation renders the adoption by reference unenforceable. Reino v. State, 352 So.2d 853 (Fla.1977). In this case we hold that the State regulation was adopted by general reference rather than adopted by specific reference. We thus conclude that there was no County regulation in force and effect at the time of the violation in question and that the matter should have been dismissed. The order finding appellant to be in violation of the regulation is vacated and the cause remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.


text:
    UNITED STATES STEEL CORPORATION, Appellant, v. Cyril R. GOWER et al., Appellees.
    No. 79-2482.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellant.
    Glenn R. Mee of Andrews, Voorheis, Lehrer & Baggett, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order granting the appellees relief from the terms of a final judgment of foreclosure. The appellant foreclosed its first mortgage and a final judgment of foreclosure in the amount of $66,570.97 was entered. The appellees, holders of a second mortgage, then purchased the property for $57,736.30 at public sale. Of that sum, $53,430.19 was disbursed to the appellant. The final judgment contained no provision for the payment of taxes and the outstanding taxes were not paid from the proceeds of the sale. Subsequently, the appellees, after determining that there were unpaid real estate taxes outstanding on the property, paid the taxes and sought reimbursement from the appellant by way of this action before the trial court.

The appellees’ theory of recovery was that the appellant, by filing an affidavit in the foreclosure proceedings listing the taxes as amounts due, had misrepresented to the court that those taxes had been paid. Absent such misrepresentation, the appellees contended, the trial court would have ordered in the final judgment that the clerk of the court pay any outstanding real estate taxes out of the proceeds of the public sale.

Although the appellant attacks the judgment entered against it on several grounds, we will discuss only one, which we find sufficient to mandate reversal. Under the provisions of Florida Rule of Civil Procedure 1.540(b)(3), a party may secure relief from the terms of a final judgment entered as a result, of the misconduct of an adverse party. However, the rule provides that such relief must be requested within one year of the time the final judgment is issued. American National Bank v. Lau, 268 So.2d 567 (Fla. 2d DCA 1972), cert. denied 273 So.2d 81 (Fla.1973). It is undisputed here that appellees’ motion was filed beyond the one year provision of the rule. That being the case, we believe it was error for the trial court to grant such relief to the appellees.

Accordingly, this cause is reversed and remanded for entry of judgment in favor of appellant.

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


text:
    Thomas James WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 79-26.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Alan H. Schreiber, Public Defender, Fort Lauderdale, and Jerry B. Smith, Asst. Public Defender, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The question on this appeal is whether a person of eleven years, ten months and twenty-one days of age falls within the statutory classification of “eleven years of age or younger.” See Section 794.011(2). We answer in the negative and therefore reverse.

Thomas James Wright was convicted of committing a sexual battery upon a person of eleven years of age or younger in violation of Section 794.011(2), Florida Statutes (1977). The victim was eleven years, ten months and twenty-one days of age on the date of the offense and thus the defendant consistently argued throughout the proceedings below, that the victim was older than the statutory requirement of eleven years of age. We agree.

The trial court did not have the benefit of our decision in State v. Carroll, 378 So.2d 4 (Fla. 4th DCA), cert. denied, 385 So.2d 761 (Fla.1980) in which we held that the term “eleven years of age or younger” encompasses the time between a person’s birth and their eleventh birthday. Inasmuch as the victim in this case had passed her eleventh birthday, defendant’s conviction and sentence must be reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LETTS, C. J., and GLICKSTEIN and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Sandra J. AZELTON, Appellant, v. Lois FINCH, f/k/a Lois Azelton, and Sherry Shields, f/k/a Sherry Azelton, Liberty Life Insurance Company, a foreign Corporation, and Kenneth Robert Azelton, Appellees.
    No. 79-145.
    District Court of Appeal of Florida Fourth District.
    Nov. 12, 1980.
    Donald W. Stanley, Jr., and Davis G. Anderson, Jr., Tampa, for appellant.
    Mark R. Boyd of Gerald M. Walsh & Associates, P. A., Fort Lauderdale, for ap-pellees-Lois Finch, Sherry Shields and Kenneth Robert Azelton.
   DOWNEY, Judge.

Sandra J. Azelton appeals from a summary judgment for Lois Finch, Sherry Shields, and Kenneth R. Azelton in a controversy over the proceeds of a life insurance policy.

Appellees, Lois Finch and Sherry Shields, filed a complaint against appellee Liberty Life Insurance Company to recover the proceeds of a life insurance policy on the life of Robert Azelton, the father of Sherry and former husband of Lois. In material part the complaint alleged that: the marriage of Robert Azelton and Lois Azelton Finch had been dissolved; the final judgment of dissolution adopted an agreement between the parties wherein Robert Azelton had agreed to maintain a life insurance policy on his life and to continue as beneficiaries their daughter, Sherry Shields, and their son Kenneth Azelton (Lois was to pay the premiums on said policy); the insured died and the plaintiffs, Lois and Sherry, had met all the conditions of the policy and they were the beneficiaries thereunder; although requested to do so appellee Liberty Life Insurance Company had refused to pay the proceeds of the policy to the plaintiffs because another party (appellant, Sandra Azelton) had made a claim for said proceeds.

Liberty Life filed an answer admitting the existence of the policy but denied the alleged beneficiaries on the policy. As affirmative defenses Liberty Life alleged the failure to join dispensable parties, Sandra Azelton and Kenneth Azelton. Liberty Life also filed a counterclaim in which it sought to interplead the proceeds of the policy. The counterclaim brought Kenneth Azelton and Sandra Azelton into the case as additional third parties. Lois and Sherry and Kenneth replied to the counterclaim, but Sandra did not.

On July 7, 1978, Lois, Sherry, and Kenneth moved for summary judgment. On July 26, 1978, Liberty Life filed a motion for an order of interpleader, authorizing it to pay the proceeds of the policy into the court registry and thereafter be discharged, after allowance of its fees and costs. Again, on September 26,1978, Lois, Sherry, and Kenneth filed a motion for summary judgment. _ Thereafter, on November 29th an order of interpleader was filed, followed by the filing of a joint stipulation. Finally, on December 4, 1978, an order was entered granting final judgment to appellees Lois, Sherry, and Kenneth. At that time the parties had filed a written stipulation with the court which, in pertinent part: 1) consented to an order of interpleader and the payment of the proceeds of the policy into the registry of the court, and 2) provided for the dismissal with prejudice of the complaint filed by Lois and Sherry. At said hearing counsel for Sandra argued that the hearing on the motion for summary judgment was premature because the issues between Lois, Sherry, and Kenneth on the one hand and Sandra on the other had not been settled by adequate pleadings. However, appellees persuaded the trial court that it was appropriate to proceed to a decision on the merits of the case at that time and thus, in due course, the judgment appealed from was entered.

We are persuaded that the ends of justice would be best served by a further consideration of this case in the trial court. That conclusion has been reached because of the nature of the proceeding and the posture of the case at the time of its termination in the trial court. The interpleader aspect of the case takes it out of the run of the mill lawsuit and requires a little different consideration of the pleadings. For example, after the court decides the preliminary question of whether interpleader is appropriate, the court then proceeds to determine the issues made between the parties laying claim to the funds held by the party seeking the order of interpleader. If the issues are not yet settled between the interested contestants, the court should direct the parties to file appropriate pleadings to create the issues to be tried. As stated in 18A Fla. Jur., Interpleader § 18:

“After it is determined that interpleader has been properly brought, and after the complainant is dismissed, litigation proceeds among the defendants as in an adversary proceeding. If the issues relative to the various claims have been fully presented by the parties, the court should dispose of the entire controversy in a way that is binding on all the parties without requiring further litigation of any nature, at the time it determines the question of interpleader; but if the case is not ready for decision as between the conñicting claimants, the court should order the claimants to interplead and litigate the matter in dispute between themselves. The latter phase of the matter becomes, in effect, a new and independent proceeding between the claimants alone as adversaries. A cross claim against the inter-pleading complainant is inadmissible, and he should not ordinarily be made a party to a counterclaim by one of the defendants against the other.” (Emphasis added; footnotes omitted.)

And the precise nature of the pleadings is not so important if the rights of the parties are protected and the issues are framed so that a decision can be made thereon. As the Supreme Court of Florida said in Bourne v. State Bank of Orlando & Trust Co., 106 Fla. 46, 142 So. 810, 813 (1932):

“When, however, it comes to the framing of issues between claimants to property in suits of this character [interpleader], the ownership of which is in question, there seems to be no hard and fast rule to be followed. In ordering issues to be framed between claimants, courts are more interested in making an equitable disposition of the property or fund involved in the controversy than in the form in which the issues are shaped. So long as substantial rights of the parties are not invaded and the issues are so framed that they can be made the basis of an equitable decree, it does not matter ,so much what turn the pleadings take.”

See also: Drummond Title Company v. Weinroth, 77 So.2d 606 (Fla.1955); DeGarcia v. Seiglie, 230 So.2d 37 (Fla. 4th DCA 1970).

Adverting to the facts of this case, it should be remembered that Lois and Sherry filed the complaint against Liberty Life to recover the proceeds of the policy. Liberty Life answered and counterclaimed for in-terpleader and brought in Kenneth and Sandra as additional interested parties. All of the parties then stipulated that the proceeds should be paid into the registry of the court, and the complaint should be dismissed with prejudice. That stipulation was before the court at the time the summary judgment was entered. However, except for a reference thereto in the order of interpleader, the stipulation seems to have been ignored.

As we view the record, after the court entered the order of interpleader and the funds were paid into the court registry, the complaint should have been dismissed and the parties thereafter directed to plead their respective claims to the fund. When the issues were settled either side could possibly move for summary judgment or the case could have been tried on the merits of the issues raised in the pleadings. Instead, the appellant never presented a pleading setting forth the basis of her claim. Appellees contend appellant should have presented her claim in response to the Liberty Life counterclaim. Granted she could have done so, but the counterclaim did not require that she do so; and we think the trial court, after entering the order of interpleader, should then have directed the parties to plead the issues. The only pleading basis for the summary judgment was the complaint filed by Lois and Sherry, which the parties had stipulated should be dismissed.

After all is said and done, we find the entry of summary judgment was premature. On remand the trial judge shall: vacate the summary judgment; direct the parties to cast the issues through appropriate pleadings; and then decide those issues either by summary judgment or trial on the merits, whichever is appropriate.

Accordingly, the judgment appealed from is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED, with directions.

LETTS, C. J., and HURLEY, J., concur.


text:
    MANOR GROVE LAND CORPORATION, Appellant, v. Alex SALKAY and Deuschle Construction Co. et al., Appellees.
    No. 79-1041.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Philip J. Morgan of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellant.
    Harvey K. Mattel of Harrington & Mattel, Fort Lauderdale, for appellees.
   PER CURIAM.

The appellee, Alex Salkay, obtained a judgment against the Manor Grove Land Corporation. In proceedings supplementary to aid execution on the judgment it was determined that all of the assets of Manor Grove had been transferred to an entity known as the DLR Trust for which the American National Bank of Fort Lauder-dale was trustee. The trial court, without giving the trust an opportunity to defend, held that execution could be had against the trust assets to satisfy the judgment against Manor Grove. We believe it was error to enter such an order without requiring the joinder of the DLR Trust in the proceedings and providing the trust with an opportunity to defend the claim against its assets. See Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483 (1935) and B & B Drugs St. Petersburg, Inc. v. McKesson & Robbins Drug Company, 380 So.2d 1307 (Fla. 2d DCA 1980).

Accordingly, this cause is reversed and remanded with directions for further proceedings consistent herewith.

LETTS, C. J.; and ANSTEAD and HERSEY, JJ., concur.


text:
    ADMIRAL INSURANCE COMPANY et al., Appellants, v. Richard PALMER and Susan Palmer, etc., Broward County School Board et al., Appellees. INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Richard PALMER and Susan Palmer, etc. et al., Appellees.
    Nos. 79-1490, 79-2364 and 79-2471.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Ricardo J. Cata of Fleming, O’Bryan & Fleming, Fort Lauderdale, for Admiral Ins. Co.
    Thomas Hurst and William R. Wicks, III of Dixon, Dixon, Hurst, Nicklaus & Webb, Miami, for Ins. Co. of North America.
   PER CURIAM.

This appeal involves a dispute between two insurance companies as to the existence and extent of their respective obligations under policies of liability insurance written for the Broward County School Board. The trial court originally ruled that appellant Admiral Insurance Company provided coverage to the School Board on an equal pro-rata basis with appellee, Insurance Company of North America (INA). Admiral appealed, but while that appeal was pending, the trial court entered orders dismissing claims by INA against Admiral after the original claimants executed settlement releases which included Admiral as a party released. INA appealed those orders. All the appeals have been consolidated.

Initially, we agree with INA’s contention that the trial court was without jurisdiction to dismiss the claims against Admiral after Admiral had taken an appeal from the trial court’s earlier ruling as to the coverage issue. See Fla.R.App.P. 9.600; Waltham A. Condominium Association v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976). However, we also believe the trial court erred in determining in its order of May 31, 1979 that Admiral’s policy did provide coverage for the incident in question. Under the unambiguous provisions of the Admiral policy coverage is excluded for injuries arising out of the use of automobiles utilized for the purpose of class instruction. It is undisputed herein that the incident in question arose out of such use of an automobile and accordingly, there is no coverage under the Admiral policy. Indiana Insurance Company v. Winston, 377 So.2d 718 (Fla. 4th DCA 1980).

Accordingly, this cause is hereby reversed and remanded for entry of judgment in accordance with the terms of this opinion.

LETTS, C. J., ANSTEAD, J., and RIVKIND, LEONARD, Associate Judge, concur.


author: HERSEY, Judge.

text:
    PALMLAND VILLAS I CONDOMINIUM ASSOCIATION, INC., Appellant, v. Gordon A. TAYLOR et al., Econo Mobile Leasing, Inc., etc., Appellees.
    No. 79-1667.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Philip T. Crenshaw of Crenshaw & Cren-shaw, P. A., Lake Worth, for appellant.
    Kenneth H. Renick of Renick, Zwickel & Gross, Lake Worth, and Kenneth G. Spillias of Spillias & Mitchell, West Palm Beach, for appellee-Econo Mobile Leasing, Inc.
    Charles B. Adams, West Palm Beach, for appellee-Nathaniel J. Orr.
    Martha J. Cook, Tallahassee, for appel-lee-Department of Revenue, State of Florida.
   HERSEY, Judge.

This is an appeal from an order determining that the liens of certain creditors’ judgments and a state tax warrant attached to real property prior to the creation of a constructive trust involving that property.

The real property was conveyed to Palm-land Development Corp. on February 24, 1976, to be used for recreational purposes and the conveyance was duly recorded.

Subsequently a tax lien and three judgment liens were recorded against the property.

Thereafter, on January 5, 1979, a final judgment was entered declaring the real property to be held in constructive trust by virtue of the documents recorded in 1976. Jurisdiction to determine whether the liens attached to the property was specifically reserved by the trial court. No appeal was taken from that judgment. Thereafter the trial court determined that the liens did attach to the property and this appeal was taken by appellant, Intervenor/Third Party Plaintiff, from that determination.

Appellant’s position is that the liens could not have attached since the property was a trust asset from the time of the conveyance and that the debtor-obligor was thereafter simply a trustee without power to pledge trust assets to secure its corporate obligations.

The result in this case turns upon the answer to the question, when does a constructive trust come into existence. We determine that a constructive trust comes into existence on the date of the order or judgment of a court of competent jurisdiction declaring that a series of events has given rise to a constructive trust.

A constructive trust arises by operation of law, Staples v. Battisti, 191 So.2d 583 (Fla. 3d DCA 1966), as opposed to a resulting trust which automatically arises out of certain circumstances. Grapes v. Mitchell, 159 So.2d 465 (Fla.1963). Both are creations of equity. The former is created by law to do equity under the circumstances and without regard to intent. The latter is enforced by law to carry out the parties’ real or presumed intent based upon the circumstances.

An action for the declaration of a constructive trust may be barred if the events giving rise to the necessity for the imposition of this equitable remedy transpired beyond the period permitted by the applicable statute of limitations, usually expressed in terms of laches. See Yawn v. Blackwell, 343 So.2d 906 (Fla. 3d DCA 1977). This leads inevitably to the conclusion that a constructive trust is not created by the facts themselves since no trust is found where the operable facts occur beyond the statutory period. The facts simply form the basis upon which a court may presently impose a trust if the statute of limitations has not barred this remedy. Wadlington v. Edwards, 92 So.2d 629 (Fla.1957).

Therefore there was no trust in existence when the liens attached. Imposition of a constructive trust by the order of January 5, 1979, could have no effect on the validity or priority of those liens. The trial court correctly determined that they remained enforceable. It should be noted that a foreclosure sale will not divest the restriction to recreational purposes to which the property will remain subject notwithstanding any such sale.

We affirm the order from which this appeal was taken.

AFFIRMED.

LETTS, C.J., and BERANEK, J., concur.


text:
    James TRINGALI and Mary Tringali, his wife, Appellants, v. XYOVEST, INC., an Ohio Corporation, Clock of Naples, Inc., Herbert R. Bryson and Patricia Bryson, his wife, Appellees.
    No. 79-1731.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Barry P. Billington, Pompano Beach, for appellants.
    James 0. Murphy, Jr. of English, McCau-ghan & O’Bryan, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Dunser v. Southeast First National Bank of Miami, 367 So.2d 1094 (Fla.Sd DCA 1979).

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


text:
    Gene E. PAULDO, Appellant, v. STATE of Florida, Appellee.
    No. 79-1787.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Richard L. Jorandby, Public Defender, John R. Cullom, Asst. Public Defender and James K. Green of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is remanded with directions that appellant be given credit against his sentence for the time he spent in the Dade County jail from February 22,1978, to June 23, 1978. See Gordon v. State, 379 So.2d 1022 (Fla. 1st DCA 1980).

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


author: HURLEY, Judge.

text:
    Norman E. BUNNER and Sarah Lou Bunner, Appellants, v. FLORIDA COAST BANK OF CORAL SPRINGS, N.A., successor by merger to Florida Coast Bank of Margate, Appellee.
    No. 79-2106.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Stuart L. Stein, Fort Lauderdale, for appellants.
    Alan W. Kaback, Coral Springs, for ap-pellee.
   HURLEY, Judge.

This appeal questions the propriety of a summary final judgment entered on behalf of the appellee/bank. We reverse.

• At the root of this case is the purchase of a new automobile by the appellants, Mr. and Mrs. Bunner. From the outset they experienced mechanical difficulties • which necessitated repeated and numerous repair calls. When these efforts to correct the problem failed, the Bunners instituted a breach of warranty action against the manufacturer, the dealer, and the appellee/bank which holds the “Security Agreement-Retail Instalment Contract” on the car. This agreement, attached as an exhibit to the Bunners’ complaint, contains the following bold print which is the basis for their suit against the bank:

NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

The bank responded by filing a counterclaim which alleged that the Bunners had defaulted on their payments, thus making the full balance due and payable. The Bun-ners answered, and by reference to their complaint, asserted the affirmative defense of breach of warranty. Next, the bank moved for summary judgment and filed affidavits directed solely to the amount of the Bunners’ indebtedness. The trial court granted summary judgment for the bank and this appeal ensued.

In order for a plaintiff, or in this case, a counterclaimant, to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla.2d DCA 1979); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So.2d 830 (Fla.3d DCA 1976); Mancino v. National Industrial Bank of Miami, 312 So.2d 211 (Fla.3d DCA 1975); City of Hallendale v. State ex rel. Sage Corp., 298 So.2d 437 (Fla.4th DCA 1974). In the case at bar, appellee/bank denied the Bunners’ affirmative defense but thereafter ignored the issue. The motion for summary judgment and affidavits filed in support thereof admit the existence of the contractual clause subjecting the bank to all claims and defenses which the Bunners’ could assert against the seller, but are silent on the asserted defense of breach of warranty. Thus, we hold as a matter of law, that the bank failed to meet its burden of establishing its entitlement to summary judgment. Accordingly, the summary final judgment entered herein is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LETTS, C. J., and HERSEY, J., concur.


text:
    Kathleen N. IRWIN, Appellant, v. The EURO PARTNERSHIP, a Lichtenstein L. A. Partnership, and William T. Irwin, an individual, Appellees. Kathleen N. IRWIN, Appellant, v. The FIRST PARTNERSHIP, a Lichtenstein L. A. Partnership, and William T. Irwin, an individual, Appellees. HENDRED INVESTMENTS, LIMITED, Appellant, v. IRWIN MANAGEMENT, INCORPORATED, et al., and Kathleen N. Irwin, Appellees.
    Nos. 79-2466, 80-130, 80-144.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Harry M. Hipler of Walden & Walden, Dania, for Kathleen N. Irwin.
    Neil J. LaHurd of Parkhurst, LaHurd & Purdy, P.A., Fort Lauderdale, for The Euro Partnership and Hendred Investments, Limited.
   PER CURIAM.

In Cases No. 79-2466 and 80-130 we affirm the trial court’s denial of appellant’s motions to strike appellees’ notices of voluntary dismissal.

In Case No. 80-144 we reverse the trial court’s granting of appellant’s motion to strike appellee’s notice of voluntary dismissal and remand for entry of an order consistent herewith.

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


text:
    Jenny THOMPSON, Appellant, v. William Emory THOMPSON, Jr., Appellee.
    No. 79-2493.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    John D. Ayres, Jr., Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal from a non-final order in a dissolution of marriage proceeding. The wife seeks review of the trial court’s order which is in the nature of a mandatory injunction. We conclude that reversible error has not been demonstrated. The trial court ordered certain steps taken to preserve the financial status quo of the parties. The trial court did not determine property rights. The order was in accordance with Yohem v. Yohem, 295 So.2d 656 (Fla. 4th DCA 1974).

The appellee/husband has moved for attorneys’ fees on appeal. This motion is granted to the extent that the cause is remanded to the trial court for consideration of appropriate evidence in this regard.

AFFIRMED.

MOORE and HERSEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert L. FIELDS, Jr., Appellee.
    No. 80-375.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   HURLEY, Judge.

The state appeals from a trial court’s order arresting judgment on defendant’s conviction for violation of Section 810.02(1), (3), Florida Statutes (1979). A jury found the defendant guilty of burglary. Though he had not filed a motion to dismiss, defendant moved for arrest of judgment on the ground that the amended information was fatally defective. The trial court granted the motion, finding that the amended information “did not allege the crime of Burglary, even though the language of Florida Statute 810.02 was tracked, for the reason that the amended information did not specify what specific offense the defendant intended to commit . We reverse.

Defendant was initially charged with burglary in the following information:

BARRY KRISCHER, Assistant State’s Attorney of the Fifteenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Palm Beach, under oath information makes that ROBERT LEE FIELDS, JR. in the County of Palm Beach and State of Florida, on the 8th day of AUGUST in the year of our Lord, one thousand nine hundred and SEVENTY NINE in the County and State aforesaid, unlawfully did then and there enter or remain in a structure, the property of SIDNEY EDELMAN, with intent then and there to commit an offense therein, to-wit: Theft, by then and there knowingly obtaining or using or endeavoring to obtain or use the property of another, contrary to Florida Statute 810.02(1)(3).

Later, the information was amended as follows:

SANDRA M. KABBOUSH, Assistant State’s Attorney of the Fifteenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Palm Beach, under oath information makes that ROBERT LEE FIELDS, JR. in the County of Palm Beach and State of Florida, on the 8th day of AUGUST in the year of our Lord, one thousand nine hundred and SEVENTY NINE in the County and State aforesaid, unlawfully did then and there enter or remain in a structure, the property of SIDNEY EDELMAN, doing business as SELBY OF WEST PALM BEACH with intent then and there to commit an offense therein, contrary to Florida Statute 810.-02(1)(3).

As can be seen, the original information listed “theft” as the crime intended to be committed within the structure, while the amended information omitted the specific offense and merely stated that the defendant had an “intent then and there to commit an offense therein.” Thus framed, the question is whether such omission, absent a motion to dismiss, is sufficient to justify an order arresting judgment. We think not.

Our analysis begins with the proposition that there is a significant distinction between an indictment or information which completely omits an essential element of an offense and one which imprecisely or incompletely alleges an essential element of a crime. In the former situation, the total omission is fatal. State v. Dye, 346 So.2d 538, 541 (Fla.1977). In the latter category, however, an imperfect allegation, unless timely challenged by a motion to dismiss, shall be deemed to have .been waived. Rule 3.190(c), Fla.R.Crim.P.

In the case at bar, the amended information states an essential element, but without requisite clarity. The intent to commit a crime within the structure has long been recognized as the “gist of the offense.” Charles v. State, 36 Fla. 691, 18 So. 369 (1895); Vawter v. State, 63 So.2d 255 (Fla.1953); Cole v. State, 276 So.2d 100 (Fla.2d DCA 1973). Yet, since at least 1876, it has also been held that:

Where the definition of an offense, whether it be at common law or by statute, “includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species; it must descend to particulars.”

United States v. Cruikshank, 92 U.S. 542, 558, 2 Otto 542, 23 L.Ed. 588 (1876). This rule was generally adopted in Florida in Mills v. State, 58 Fla. 74, 51 So. 278 (1910) and in Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143 (1945). It was specifically applied to the crime of burglary in Charles v. State, supra, where the court held that:

The intent cannot, however, be laid in mere general words. It is not sufficient to say that the defendant broke and entered with intent to commit a misdemeanor, but the kind of misdemeanor must be specified. 18 So. at 370.

Recently we applied the above rule in Lee v. State, 385 So.2d 1149, 1150 (Fla. 4th DCA 1980), and held that “an information purporting to charge the crime of burglary without alleging the entry was made with intent to commit a specific offense is subject to a motion to dismiss.” Given this opportunity to revisit Lee, we continue to believe that it correctly states the law insofar as it goes. However, it does not address Section 810.07, Florida Statutes (1979), wherein the Legislature said that proof of stealthful entry without consent of the owner or occupant “shall be prima facie evidence of entering with intent to commit an offense.” By this provision, the Legislature created an alternative method for establishing the element of intent to commit a crime within the structure. Of importance is the fact that it does not require proof of intent to commit a specific offense. Cf. Peters v. State, 76 So.2d 147 (Fla.1954); Bayless v. United States, 381 F.2d 67 (9th Cir. 1967); State v. Murie, 140 Wash. 71, 248 P. 79 (1926). Therefore, in order to comply with the “general to particular” rule of pleading and yet give force and effect to Section 810.07, we hold that in alleging the crime of burglary, the state must either list the specific crime intended to be committed within the structure, or, alternatively, allege that an offense was intended to be committed therein in that the entry was gained stealthily and without consent of the owner or occupant. By either mode of pleading, the defendant would be sufficiently notified in the accusatory pleading of the crime brought by the state to which he must respond.

Returning to the case at bar, it is apparent that an essential element of the crime of burglary was defectively pled. Furthermore, it is undisputed that the defendant failed to timely challenge the information by a motion to dismiss pursuant to Rule 3.190(b), Fla.R.Crim.P. Consequently, at this stage in the proceedings, we employ a lesser degree of scrutiny than would have been applied at a pre-trial motion to dismiss. An information is to be judged post-trial by a different and more liberal standard. Fountain v. State, 92 Fla. 262, 109 So. 463 (1926). The proper approach at this juncture of the proceedings was formulated by the court in State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1978). There, dealing with a similar pleading defect, the court held:

The information is cast in the statutory language. Though it is imperfect because it does not descend from statutory generalities to essential particulars, the information is not so defective that it “will not support a judgment of conviction” and is vulnerable to initial post-trial attack. When confronted with an information that is defective only in failing to charge particulars within a generic statutory description of proscribed conduct, the accused must either challenge the information by motion, thus providing opportunity for a new and curative information, or be satisfied with resolving his doubts by discovery and a motion for statement of particulars. The law does not favor a strategy of withholding attack on the information until the defendant is in jeopardy, then moving to bar the prosecution entirely. 353 So.2d at 151.

The defendant in this case has not contended that the amended information was so vague, indistinct or indefinite as to mislead or embarrass him in the preparation of his defense, or to expose him to a new prosecution for the same offense. Indeed, from the day on which the probable cause affidavit was filed, through the first information which specified the intended crime as theft, and on through the discovery process wherein the defendant was apprised that the state’s evidence consisted of “stolen property” obtained from the defendant, the defense was aware that the state aimed to prove an unlawful entry accompanied by an intent to commit larceny. This explains the absence of a motion to dismiss; the charge was understood and the defense was ready.

In view of our finding that the allegation was imperfect but not fatally defective, we hold that the pleading error was waived pursuant to Rule 3.190(c), Fla.R.Crim.P. State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973). We acknowledge that there is a substantial and respectable body of case law to the contrary. See, e. g., United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971); Adkins v. State, 389 P.2d 915 (Alaska 1964); State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977); State v. Green, 44 Or.App. 253, 605 P.2d 746 (1980). Nonetheless, we adhere to our decision. We believe it achieves substantial justice and is consistent with the modern trend of individually evaluating pleading imperfections. See, e. g., Lackos v. State, 339 So.2d 217 (Fla.1976); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977), cert. denied, 365 So.2d 709 (Fla.1978); Gaynor v. State, 196 So.2d 19 (Fla.4th DCA), cert. denied, 201 So.2d 894 (Fla.1967).

With such major reforms in the criminal justice system as guaranteed reciprocal discovery and near universal representation by counsel, it is anachronistic to tag every pleading error as fundamental or fatal. Only in those instances of total omission of an essential element of a crime, State v. Dye, supra, or where the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense, should a defect be termed “fatal”. See Rule 3.140(o), Fla.R.Crim.P.

We glean further support for our holding from the fact that the Legislature, in redefining the crime of burglary, has minimized the importance of the specific crime which motivates the breaking and entering. For example, at common law, burglary required proof of an intent to commit a felony. Perkins, Criminal Law, p. 149. As the Legislature began the process of redefinition, however, it differentiated between breaking and entering with intent to commit a felony and with intent to commit a misdemeanor. Cf. Sections 810.01 and 810.05, Florida Statutes (1973). The gradation of the crime, and thus the punishment, turned on the element of intent. Subsequently, in what can only be construed as a conscious decision to refocus on the safety of property and of the people therein, the Legislature abandoned these distinctions and said that proof of an intent to commit any offense would suffice. Section 810.02, Florida Statutes (1979). As indicated earlier, Section 810.07, Florida Statutes (1979), is fully consistent with this approach for it provides a method of establishing the essential element of intent to commit a crime within the structure without reference to a specific offense.

To summarize then, we hold that the pleading was defective but not fatally so. Consequently, the trial court erred in granting the motion for arrest of judgment pursuant to Rule 3.610(a)(í), Fla.R.Crim.P., and in adjudicating the defendant guilty of a lesser offense. Therefore, the order arresting judgment is REVERSED and the cause is REMANDED to the trial court with instructions to VACATE defendant’s conviction for trespass, reinstate the jury’s verdict and conduct further sentencing proceedings consistent with this opinion.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.

      . The trial court further ruled “that the amended information charged merely the crime of Trespass, and the evidence at trial having been sufficient to prove Trespass, the defendant is hereby adjudged guilty of Trespass.”


text:
    BROWARD COUNTY, Appellant, v. Dolores WALLIS, a real estate saleswoman et al., Appellees.
    No. 80-629.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Harry A. Stewart, Gen. Counsel for Bro-ward County, John Franklin Wade and Edmond J. Stacker, Asst. Gen. Counsel, Fort Lauderdale, for appellant.
    Peter A. Portley of Portley & Sullivan, Pompano Beach and Nancy Little Hoff-mann, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Broward County appeals from a final judgment in a declaratory decree action. The County raises five separate points on appeal, but at the time of oral argument, abandoned Point I. We conclude that all other points raised are not yet appropriate for appellate review, because they relate to a request for a refund of certain taxes. The trial court has not yet ruled on the refund issue.

AFFIRMED.

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


text:
    Eugene CIPOLLONI, Mayor of the City of Lauderhill, Florida, Appellant, v. Henrietta LEWIS, Appellee.
    No. 80-677.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Richard C. Roarke of Titone & Roarke, P.A., Sunrise, for appellant.
    Jerome F. Pollock, Hollywood, for appel-lee.
   PER CURIAM.

Appellant failed to demonstrate reversible error, and therefore the cause is affirmed and remanded to the trial court with instructions to enter a final judgment for appellee, the amount of which should reflect a set-off of all monies earned by ap-pellee from the date of termination through January 31, 1980. In the event the parties are unable to stipulate to the amount of the set-off, the trial court is instructed to conduct an evidentiary hearing for that purpose.

DOWNEY, HERSEY and HURLEY, JJ., concur.


text:
    FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Wayne LIMEBURNER, Reggie Bennett, Robert Greer, d/b/a Holiday Plaza Mobile Home Park, and Avanti Research and Development, Inc., a foreign corporation doing business in the State of Florida, Respondents.
    No. 80-937.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for petitioner.
    Richard L. Martens of Boose, Ciklin & Martens, and Larry Klein, West Palm Beach, for respondent, Limeburner.
   PER CURIAM.

This is a petition for common law certio-rari seeking to review, an order entered by the trial court on a discovery issue in a personal injury action. Through discovery efforts, plaintiff secured from defendant a list of twenty-seven similar accidents within a period of three years preceding the accident in question. This list of twenty-seven similar accidents was voluntarily produced by defendant and included dates, names, and addresses. Thereafter, plaintiff sought production of personal injury accident reports prepared by the defendant corporation regarding each accident. Defendant objected to this discovery urging that the reports were work product prepared in anticipation of litigation and that the facts in the reports were available to the plaintiff. The Circuit Court ordered that the reports be turned over to plaintiff. The defendant has petitioned this Court for review via certiorari.

We conclude that the order below constitutes a departure from the essential requirements of law which will not be subject to correction after final judgment. The major issue in controversy before this Court is whether there was actually a demonstration that the reports constituted work product. We have reviewed the evidence on this subject and conclude that the reports fall within the definition of work product. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), wherein the Court discussed the definition of work product and held in relevant part as follows:

[A] party may be required to respond on behalf of himself, his attorney, agent, or employee and to divulge names and addresses of any person having relevant information as well as to indicate generally the type of information held by the person listed. A party may not be required to set out the contents of statements, absent rare and exceptional circumstances, or to divulge his or his attorneys’ evaluation of the substance of statements taken in preparation for trial.

Here, the defendant has already divulged the names, addresses, and dates of other similar accidents within a three-year period prior to the accident in question. We conclude that the reports pertaining to the accidents were, based on the evidence before the trial court, prepared in anticipation of litigation and that the Court departed from the essential requirements of law in ordering their disclosure. See Sligar v. Tucker, 267 So.2d 54 (Fla. 4th DCA 1972), cert. denied, 271 So.2d 146 (Fla.1972).

The petition for certiorari is granted and the order below quashed.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.