text:
    Patrick C. LYNN, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-167.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 9, 1981.
    Patrick C. Lynn, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

The order denying appellant’s motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure, as it relates to appellant’s contentions that he did not knowingly and voluntarily enter a plea of nolo contendere, is affirmed. However, the case is remanded for correction of the judgment and sentence, because the trial judge placed the appellant on unsupervised probation.

The court suspended the remainder of a 10-year sentence after directing that appellant serve the first 195 days of it, and further directed that he remain on unsupervised probation as to the suspended portion, and attached to it the condition that he leave the state of Florida by a certain date.

Probation is a creature of statutory law, and the courts are, therefore, limited to the authority set out in the applicable statute. State v. Wilcox, 351 So.2d 89, 91 (Fla. 2d DCA 1977); Brown v. State, 302 So.2d 430 (Fla. 4th DCA 1974). Section 948.01(3), Florida Statutes (1979), clearly states that an individual placed on probation shall be supervised by the Department of Corrections. The statutory requirement is mandatory. Hardy v. State, 370 So.2d 822, 823 (Fla. 2d DCA 1979); Wilcox, supra, at 91.

That portion of the sentence placing appellant on unsupervised probation is reversed and the cause is remanded for further proceedings consistent with this opinion.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Judge.

license: Public Domain

text:
    DEPARTMENT OF PROFESSIONAL REGULATION and Board of Pharmacy, Petitioners, v. J. Lewis HALL, Jr., Circuit Judge of the Second Judicial Circuit, Florida Optometric Association, James A. Stephens and George T. Lowe, Respondents.
    No. AC-305.
    District Court of Appeal of Florida, First District.
    May 14, 1981.
    Robert D. Newell, Jr., Asst. Gen. Counsel, Jacksonville, Dept, of Professional Regulation, for petitioners.
    Leonard A. Carson, Tallahassee, James W. Linn, of Seyfarth, Shaw, Fairweather & Geraldson, Miami, Fred R. Dudley, of Aloia, Dudley & Roosa, Cape Coral, and Frank Vickory, Asst. Atty. Gen., for respondents.
   ROBERT P. SMITH, Jr., Judge.

The Department of Professional Regulation petitions for a writ of prohibition to prevent circuit court action that the Department contends is in excess of the court’s jurisdiction. The court declined to dismiss a declaratory judgment action by optometrists who claim to have a dispute with the Department or with the Board of Pharmacy, one of numerous professional regulatory boards under the Department’s jurisdictional umbrella. Sections 20.30, 455.201 et seq., Fla.Stat. (1979). The alleged dispute is over the optometrists’ claimed right, contested by the Board of Pharmacy and questioned by the Department in notices to the professions amounting only to free-form action under the APA, to prescribe noncontrolled prescription drugs and to have their patients’ prescriptions honored by pharmacists regulated by the Board of Pharmacy. Although this case involves no question of facial unconstitutionality in a statute or rule, see Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978), the case nevertheless presents unique facts excepting it from the general rule that forecloses collateral circuit court litigation on questions cognizable administratively under Chapter 120. State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).

Although the Department of Professional Regulation nominally is one of the firstrank administrative units of the executive branch, Section 20.03(2), headed by a Secretary with powers ostensibly not unlike the broad powers of other department heads, Sections 20.05, 20.30, the Department and its Secretary in fact are without general supervisory authority over boards within the departmental structure; concerning the activities of those boards the Department has only closely hedged licensing and enforcement powers. The Department has no power by conventional agency action to determine whether the optometrists’ practice act gives them power to write prescriptions. That power is granted instead to the Board of Optometry, which by free-form action has advised its constituents/licensees that they may prescribe noncontrolled drugs. The Department has no direct power to control or review either the Board of Optometry or the Board of Pharmacy, whose free-form action is adversely affecting licensed optometrists even though the Pharmacy Board has neither the presumed expertise nor a statutory responsibility to regulate optometrists. Thus, while the free-form action of either the Board of Optometry or the Board of Pharmacy might upon proper application mature into agency action determining the power of optometrists to write prescriptions and the power of pharmacists to fill them, neither of those Boards commands superiority of the other, and the Department in a very real sense is superior to neither.

As a result of this peculiar statutory arrangement, by which the legislature has granted the Department only the appearance of authority over its subsidiary boards, but little direct power in fact, the legislature has deprived the executive branch of clear effective authority to take action resolving the dispute by means of the Administrative Procedure Act. In those unfortunate circumstances recourse to the judiciary is necessary and proper. For the reasons stated at length in Willis, the doctrines of primary jurisdiction and exhaustion of remedies do not prevent the exercise of circuit court jurisdiction.

Whether the alleged dispute is yet of such maturity as to support an action for declaratory judgment is not our concern on petition for writ of prohibition, that being determinable by the circuit court in the proper exercise of its jurisdiction.

The order to show cause is DISCHARGED and the petition for writ of prohibition is DENIED.

McCORD and ERVIN, JJ., concur.

      . In June 1980, the director of the Pharmacy Board advised a Gadsden County pharmacist by letter that the board was “of the opinion that a pharmacist cannot lawfully fill” prescriptions written by optometrists. In December 1980, the Department’s Secretary wrote a letter to the Optometry Board stating that the Department would withhold prosecution of two prescribing optometrists, but the “profession should be advised and cautioned that the prescribing of legend [prescription] drugs by optometrists should stop pending a formal ruling by the Department of Legal Affairs.” This is “free-form” agency action only; neither the Department nor either Board has proposed rules or issued orders recognizable under Chapter 120. Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla.1979).

      .Under Chapter 455, the Department’s principal powers include licensing of various professionals, exam preparation and investigative and prosecutorial authority in disciplinary proceedings. The Department is given explicit statutory authority to overrule the various professional boards under its umbrella only in determining whether probable cause supports prosecution of disciplinary charges. Section 455.-225(3), Fla.Stat. (1979). In other interaction with the boards, the Department acts as a representative of the consumer; it is given standing to challenge proposed and existing rules of any board, for instance, and to seek judicial review of final orders entered by boards following disciplinary proceedings. Sections 455.-211, .225(6), Fla.Stat. (1979).

      . The Optometry Board has authority to make any rules necessary to carry out its duty under Chapter 463 to establish a standard of practice for licensed optometrists. Section 463.005, Fla. Stat. (1979). In contrast, the Department is given statutory power only to adopt rules necessary to administer Chapter 455, not any of the professional practice acts. Section 455.-203(5), Fla.Stat. (1979).

      . In 1975, the Optometry Board adopted a policy statement indicating its view that Chapter 463 contained no specific or absolute prohibition on the prescription of drugs by optometrists, but cautioned that the Board would police use of drugs by the profession. Later in 1975, the Attorney General agreed that the optometrists’ practice act did not prohibit drug prescription.


author: PER CURIAM.

text:
    CITY OF ST. PETERSBURG, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, an agency of the State of Florida, and International Brotherhood of Firemen and Oilers, Local No. 1220, Appellees.
    No. 80-1684.
    District Court of Appeal of Florida, Second District.
    May 15, 1981.
    Peter D. Hooper, Asst. City Atty., St. Petersburg, for appellant.
    Theodore A. Gollnick, Staff Counsel, Tallahassee, for appellee Public Employees Relations Commission.
    James B. Loper of Hamilton & Douglas, Tampa, for appellee International Broth, of Firemen and Oilers, Local No. 1220.
   PER CURIAM.

The order entered by the Public Employees Relations Commission (PERC) on August 19, 1980, required the City of St. Pe-tersburg to cease and desist from failing to take a ratification vote on the collective bargaining agreement arrived at between the City and the International Brotherhood of Firemen and Oilers, Local No. 1220. Because of the peculiar factual circumstances concerning inclusion of Article X, section 4, we construe the order as not precluding the chief executive officer of the City from making recommendations to the City as to its inclusion in the agreement.

We reject all other contentions of the parties and we affirm the order as construed.

SCHEB, C. J., and GRIMES and DAN-AHY, JJ., concur.


author: CAWTHON, VICTOR M., Associate Judge.

text:
    Jean Ann NELSON, a Widow and Personal Representative of the Estate of Frank Allen Nelson, Deceased, and for the Use and Benefit of Brian Keith Nelson and Suzanne Marie Nelson, Minor Children of the Decedent, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee.
    No. TT-443.
    District Court of Appeal of Florida, First District.
    May 18, 1981.

      Robert Jordan and R. J. Beckham, of Beckham, McAliley & Proenza, Miami, for appellant.
    E. Dale Joyner, of Toole, Taylor, Moseley & Joyner, Jacksonville, and Julian Clarkson, of Holland & Knight, Tampa, for appellee.
   CAWTHON, VICTOR M., Associate Judge.

The plaintiff/appellant, in a civil action brought pursuant to the provisions of the Federal Employers’ Liability Act, 45 U.S.C. § 51, assigns as error the refusal of the trial court to admit into evidence a suicide note left by the deceased railroad employee, and the granting of defendant’s motion for a directed verdict.

We conclude that the note was not objectionable as hearsay. It is clear from the record that the note was proffered during the trial as proof of the decedent’s then existing state of mind and as such is an exception to the hearsay rule. Section 90.-803(3Xa), Florida Statutes (1979). The note was perhaps the most important piece of physical evidence available as to the state of the decedent’s mind immediately prior to his death. However, determining whether or not “state of mind” is relevant in this case requires a synopsis of the facts and an analysis of some of the pertinent provisions of the FELA and the decisions interpreting them.

It is undisputed that the decedent was an employee of the defendant and covered by the Act at the time of his death. He was married to the plaintiff, and the couple had two minor children who would be classified as dependents under the Act. The day before his death, the decedent was suspended without pay for questioning an administrative order which allegedly violated his employment contract. A hearing was scheduled which would almost certainly have resulted in his dismissal since the railroad administration utilized a “progressive discipline” based on an employee’s personal record, and the decedent had two infractions. One was minor, and he was exonerated from the other by a Public Law Board after his death. There was evidence that a railroad workers’ union had complained to management about problems of irrational and excessive discipline, but management did not respond. The evidence indicated that the decedent’s suicide may have been the result of work-related stress, and that the employer’s negligent hiring and training of supervisory personnel may have caused that stress.

The wording of the FELA provides that dependents of employees covered by the Act be compensated for the employee’s death if he died while he was so employed and his death was caused in part by the employer’s negligence. Decisions interpreting the Act indicate that there may be liability in cases where death or injury occurred when the employee was not on duty, Rivera v. Atchison, Topeka & Santa Fe Railway, 61 N.M. 314, 299 P.2d 1090 (1956), or as a result of gradual development of disease rather than physical impact, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Except in rare cases, the jury should determine negligence and causation, Pehowic v. Erie Lackawanna Railroad, 430 F.2d 697 (3rd Cir. 1970).

The courts have “rejected many of the refined distinctions necessary in common-law tort doctrine for the purpose of allocating risks,” Kernan v. American Dredging Co., 355 U.S. 426, 438, 78 S.Ct. 394, 401, 2 L.Ed.2d 382, 392 (1958), such as those requiring opinions based on “reasonable medical certainty,” Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), and those requiring that the negligence be a “proximate cause” of the injury or death, McCalley v. Seaboard Coast Line Railroad, 265 So.2d 11 (Fla. 1972).

In spite of the broad scope of coverage afforded by the FELA, as interpreted up to now, neither party nor this court has found a case in which the dependents of a suicide have been awarded or denied compensation under the Act. There is a minority view that one should be held responsible for his acts, and that liability for suicide should not depend on such distinctions as whether the act was the result of a resistible or an irresistible impulse. See Annot., 77 A.L. R.3d 311 (1977). This is partly because the legal and medical professions are unable to develop mutually acceptable and meaningful criteria. While this view is well-reasoned, it does not accommodate the principle that persons are normally not responsible for their acts committed while in a state of insanity. We therefore endorse what we consider to be the majority view as expressed in Tate v. Canonica, 180 Cal.App.2d 898, 914, 5 Cal.Rptr. 28, 39 (1960):

The overwhelming weight of authority is to the effect that a suicide — absent insanity — is a new and independent agency which breaks the causal connection between the wrongful act and death, precluding an action under the wrongful death statutes. * * * It has also been recognized, however, that where the suicide is committed in a state of insanity in response to an uncontrollable impulse, recovery may be had if the mental state of the deceased was caused by the defendant’s wrongful act. Quoting Cauverien v. De Metz, 20 Misc.2d 144, 188 N.Y.S.2d 627 (1959).

It is the opinion of this court that FELA does not impose liability on an employer for the death of an employee who could rationally decide whether or not to kill himself. This position is consistent with the doctrine of independent intervening cause, and while it is a limitation on liability, it is not an absolute bar. As pointed out in Tate:

[Wjhere the negligent wrong only causes a mental condition in which the injured person is able to realize the nature of the act of suicide and has the power to control it if he so desires, the act then becomes an independent intervening force and the wrongdoer cannot be held liable for the death. On the other hand, if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide, then the wrongdoer may be held liable for the death.” 5 Cal.Rptr. at page 40.

In other words, in order for the employer to be liable for the suicide of the deceased, it must be shown that the negligent act of the employer drove the deceased beyond the point where he could rationally decide against killing himself.

This ruling makes the state of the decedent’s mind shortly before death extremely relevant to the issues in this civil action, and the suicide note admissible as evidence of that state of mind. If a jury should determine that the decedent took his life under an uncontrollable impulse and could no longer decide against killing himself, that would be a foundation for finding liability in light of other evidence pointing toward railroad negligence. A jury could conceivably find that the railroad’s negligence in hiring and training of supervisory personnel caused the stress that resulted in the decedent’s uncontrollable impulse to kill himself. Under such circumstances the defendant’s negligent or wrongful act would be actionable. We hold therefore that the judge’s refusal to admit the suicide note into evidence was error as was the directing of a verdict against the decedent’s widow.

The judgment of the trial court is reversed and the cause is remanded for a trial to be conducted in accordance with the holdings set forth herein.

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


text:
    Terry Steven MONAHAN, Appellant, v. STATE of Florida, Appellee.
    No. VV-10.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    Michael Allen, Public Defender, Paul Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Hoffman v. State, 397 So.2d 288 (Fla.1981).

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    Fred Sherrell CONNER, Appellant, v. STATE of Florida, Appellee.
    No. VV-59.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    John F. Daniel, Panama City, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The trial court committed no error in denying appellant’s motion to suppress certain statements he made at the scene of the accident giving rise to his conviction for manslaughter. These statements were volunteered spontaneously to the world at large, not a privileged accident report. Goodis v. Finkelstein, 174 So.2d 600 (Fla.3d DCA 1965).

In addition, appellant’s waiver of speedy trial on the first information applied also to a second amended information based on the same criminal episode. State v. Boyd, 368 So.2d 54 (Fla. 2d DCA 1979), dism., 372 So.2d 466 (Fla. 1979); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978), cert. den., 364 So.2d 886 (Fla. 1978).

AFFIRMED. ,

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.


text:
    George BADGER, Appellant, v. STATE of Florida, Appellee.
    No. WW-20.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    George Badger, in pro. per., for appellant.
    Jim Smith, Atty. Gen., and Wallace All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant was convicted by a jury of armed robbery. At sentencing, the trial judge announced in open court that “it is the judgment of this Court that George Badger be committed to the custody of the Department of Corrections of the State of Florida to be imprisoned for a term of ten years.... ” However, the written order of judgment and sentence provided that defendant be imprisoned for a term of fifteen years with credit for time served. This is a variance which was addressed in Gatti v. State, 324 So.2d 193 (Fla. 3d DCA 1975), and we remand with directions to the trial court to correct the apparent clerical error.

The appellant pro se urges other reversible error which we have examined and find to be without merit. We therefore affirm and remand with directions.

AFFIRMED and REMANDED with directions.

ERVIN, J., and LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: GLICKSTEIN, Judge.

text:
    CITIBANK, N.A., Petitioner, v. BLACKHAWK HEATING & PLUMBING COMPANY, INC., et al., Plaintiffs/Respondents, and Data Lease Financial Corporation et al., Defendants/Respondents. (2 cases) CITIBANK, N.A., Petitioner, v. Hon. Paul T. DOUGLAS, as Judge of the Circuit Court of the Fifteenth Judicial Circuit of Florida, In and For Palm Beach County, Respondent.
    Nos. 79-2236, 79-2252 and 79-2405.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.

      John H. Schulte of Smathers & Thompson, Miami, for petitioner Citibank, N.A.
    Michael Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for Blackhawk Heating & Plumbing Co., Inc.
    Robert M. Sondak of Paul, Landy, Beiley & Harper, Miami, for Data Lease Financial Corp.
   GLICKSTEIN, Judge.

For ten years Blackhawk Heating & Plumbing Co., Inc., and Data Lease Financial Corporation have been in dispute over an option agreement by which Blackhawk was to buy 25% of the capital stock of Miami National Bank owned by Data Lease. The dispute has spawned numerous appellate decisions. In 1973 Citibank loaned Data Lease $6,217,630.13 so that the latter could satisfy its obligations incurred when it bought the bank stock. To secure the loan, Data Lease pledged the bank stock to Citibank and signed a pledge agreement which provided:

Section 1. Pledge. As collateral security for the due and punctual payment of the Note, together with accrued interest thereon, and all other amounts payable by the Pledgor hereunder and under the Loan Agreement, the Pledgor hereby pledges, hypothecates, assigns, transfers, sets over and delivers unto the Pledgee a security interest in, the following:
(i) the Pledged Securities and the certificates representing the Pledged Securities, and all cash, proceeds, securities, dividends and other property at any time and from time to time re-, ceived, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Securities;

In 1977 the trial court entered a final judgment for specific performance against Data Lease confirming Blackhawk’s exercise of the option to buy part of the stock owned by Data Lease. Thereafter Data Lease counterclaimed against Blackhawk for the proceeds arising out of the sale of the stock to Blackhawk.

In late 1978 while the foregoing action was ongoing in the Circuit Court of the Fifteenth Judicial Circuit, Citibank filed in the United States District Court, Southern District of Florida, an action against Data Lease to foreclose the security interest in the Miami National Bank stock. No final judgment has been entered in that case, but the federal district court ordered the judicial sale of all 870,000 of Data Lease’s shares of Miami National Bank capital stock including the 25% on which Black-hawk had an option. On February 7, 1979, the stock was struck off to Citibank for three million ($3,000,000) dollars, and the sale was confirmed by the court. The order of confirmation has been appealed by Data Lease to the United States Court of Appeals, Fifth Circuit. That appeal is still pending.

Meanwhile, in September, 1979, Citibank moved to intervene in the state court action pending between Blackhawk and Data Lease. It also moved to be substituted in the place of Data Lease. The trial court denied both motions. Moreover, the trial court entered final judgment on November 9, 1979, in favor of Data Lease for $2,932,-463.96 on its counterclaims for the purchase of the stock. Prior to the entry of said final judgment, Citibank had filed in this court a petition for Writ of Certiorari as well as a notice of interlocutory appeal, both directed to the trial court’s order denying intervention and substitution. Citibank has further filed a petition for Writ of Prohibition to vacate the foregoing final judgment.

We have elected to treat Citibank’s interlocutory appeal and Petition for Writ of Certiorari as a plenary appeal, the order denying intervention and substitution being final in nature “because it concludes all issues between [Citibank] ... and the other parties and constitutes an end of the judicial labor and the cause relating to [Citibank] ..., leaving nothing further to be done.” Niesz v. R. P. Morgan Building Co., - So.2d - (Fla. 5th DCA Case No. 81-142, Opinion filed April 15, 1981).

We hold that the trial court should have permitted Citibank to intervene. Citibank’s complaint seeking intervention alleged in pertinent part:

9) Pursuant to a Pledge Agreement dated April 12,1973 entered into between Data Lease and Citibank, a true and correct copy of which is attached hereto as Exhibit “A”, Data Lease pledged, assigned, transferred and delivered to Citibank its 870,000 shares of Miami National Bank capital stock, as well as any cash, proceeds, or other property which at any time is received, receivable, or distributed in exchange for the stock.
10) By virtue of the Pledge Agreement and the security interest granted to Citibank by Data Lease in and to the Miami National Bank stock and any substitute for the stock, Citibank is entitled to receive any sums which might be due and owing from Blackhawk and Machata under the terms of the Option Agreement.

We recently quoted our earlier decision in Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966) for the following statement of law: “[Intervention involves an exercise of the chancellor’s discretion and his determination will not be disturbed unless error is clearly made to appear.” Maryland Casualty Co. v. Hanson Dredging, Inc., 393 So.2d 595, 596 (Fla. 4th DCA 1981). In determining whether the court has abused its discretion we believe the appropriate test for intervention to be:

[T]hat the interest which will entitle a person to intervene under this provision must be in the matter in litigation, and of such a direct and immediate character that the intervener [sic] will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation. Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918).

See also, Miracle House Corporation v. Haige, 96 So.2d 417 (Fla.1957). Sub judice, Citibank had a very real interest in the transfer of the Miami National Bank stock and the proceeds arising out of such transfer. The determination of the rights of Data Lease and Blackhawk would have a direct effect on the rights of Citibank. Therefore, it was an abuse of discretion to deny the motion to intervene.

Having ordered the intervention of Citibank, we affirm that part of the trial court’s order disallowing Citibank to be substituted for Data Lease. We also vacate the final judgment which was entered on November 9, 1979, after these proceedings had already commenced in this court. See De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974); Waltham A. Condominium Association v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976). However, in doing so, we find prohibition to be inappropriate and deny the petition for same.

With the intervention being allowed, the trial court is free to proceed to final judgment, subject to whatever rights the trial court finds to exist in the intervenor. Nevertheless, we urge upon the trial court its consideration of a stay until there is resolution of the dispute in the case pending in the federal courts.

In summary, we reverse the trial court’s order denying intervention, affirm its order denying substitution, vacate the final judgment entered on November 9, 1979, and remand for proceedings consistent herewith.

AFFIRMED in part; REVERSED in part, and REMANDED with directions.

ANSTEAD and HURLEY, JJ., concur.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Ben Earl JONES, Appellant, v. STATE of Florida, Appellee.
    No. 79-2292.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Rehearing Denied June 10, 1981.

      Elton H. Schwarz, Public Defender, Paul B. Kanarek and Stephen L. Kramer, Asst. Public Defenders, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Paul H. Zacks and Laura R. Morrison, Asst. At-tys. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by defendant from his conviction and sentence for involuntary sexual battery on a child under eleven years of age pursuant to Section 794.011(2), Florida Statutes (1977). Defendant was sentenced to life imprisonment.

Defendant asserts that the trial court erred in allowing introduction of evidence of two similar sexual incidents involving defendant and other children as being improper Williams Rule evidence. Defendant also asserts error in the granting of a motion in limine relating to an alleged previous sexual assault on the same victim. We affirm.

The controlling rule was enunciated by the Florida Supreme Court in Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and reemphasized more recently in Ruffin v. State, 397 So.2d 277 (Fla.1981). Evidence of other crimes or similar conduct is admissible under certain limited circumstances in a criminal prosecution. Relevancy is the test and if the proffered evidence is relevant to an issue in the case by showing motive, intent, absence of mistake, common scheme, identity or a general pattern of criminality so that the evidence of another crime or conduct has a material bearing on an essential aspect of the offense in question, it may be admitted. Such evidence is inadmissible if it merely shows bad character or propensity to commit a crime.

In Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), the First District decided that evidence of prior illicit sexual acts was relevant to establish a pattern of criminality. There the court stated as follows:

In Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965), evidence that defendant had committed similar illicit sex acts against one other than the victim of the offense charged was held admissible, this court holding (172 So.2d at 507):

“The testimony concerning the subsequent offense is to the effect that it was committed against a person in an age group comparable to that of the victim named in the charge, at the same place, and under circumstances almost identical to those connected with the offense charged. The similar fact evidence in this cause was clearly relevant in its bearing on defendant’s identity, intent, plan and design, as well as to show lack of inadvertence, and it meets the test of admissibility.”
* * 4s * * sf:
Here, we note a close similarity in victims, locale, sex act and a similar parental or custodial relationship between the accused and the victims. We find no merit in defendant’s contention that The Williams Rule precludes collateral crime or similar fact evidence except where the defendant’s identity is at issue. In The Williams Case itself, identity was not contested. There, the defendant took the stand, admitted sexual relations with the victim, but claimed consent and testified that the ice pick wound to the victim’s chest was accidental. Evidence that six months earlier the defendant had been apprehended in connection with an aborted assault on another similar victim was held properly admissible, inter alia, “to meet the anticipated defense of consent.”

Thus, similar fact evidence may be admitted to establish a pattern of conduct similar to the pattern of conduct in the crime. Wilson v. State, 330 So.2d 457 (Fla.1976), Bryant v. State, 235 So.2d 721 (Fla.1970). In the instant case, although there were certainly differences between the three sexual episodes, there were also obvious and marked similarities. We find the evidence to be permissible within The Williams Rule and its admission was not error.

As to the second point on appeal, we conclude that the trial court correctly granted the State’s motion in limine and that no error has been demonstrated. The State successfully sought to exclude evidence of prior sexual abuse on this same child by a member of his immediate family. On appeal defendant asserts the grant of the motion in limine had the effect of foreclosing cross-examination of the victim and introduction of other evidence which might have shown the victim to have made previous false accusations of sexual abuse. We find no error in this regard because there is nothing in the record showing any unsuccessful attempt by defendant to impeach the victim in this regard. There is a clear distinction between evidence of prior sexual abuse and evidence of prior false accusations of sexual abuse. The conviction and sentence below are thus affirmed.

AFFIRMED.

RIVKIND, LEONARD, Associate Judge, concurs.

ANSTEAD, J., dissents with opinion. .

ANSTEAD, Judge,

dissenting:

I dissent for the same reasons set out in the dissenting opinion of Judge Robert P. Smith, Jr. in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980). The other two offenses allegedly committed by the appellant took place some two years previously and involved victims two and six years older than the victim involved herein. In my view the evidence of these offenses only served to establish the propensity of the appellant to commit such homosexual acts and such evidence was not otherwise uniquely relevant to any issues involved in the pending prosecution. This error was compounded when the trial court excluded evidence of the victim’s allegedly false accusations of similar conduct against his father. See Williams v. State, 386 So.2d 25 (Fla. 2d DCA 1980).


text:
    Maureen LINEHAN, as Personal Representative of Marianna R. Linehan, deceased, etc., et al., Appellant, v. Katherine ALKHABBAZ, Laura Linehan, State Farm Mutual Automobile Insurance Company, etc., et al., Appellee.
    No. 79-2313.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Norman D. Zimmerman, Pompano Beach, for appellant.
    Frank W. Weathers of Weathers & Nark-ier, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment upholding the validity of the household exclusion provision of an automobile insurance policy.

The uncontroverted facts giving rise to the entry of summary judgment in favor of the insurer, State Farm Mutual Automobile Insurance Company, as to any claims against it arising from any negligence of Laura Linehan, are as follows. Katherine Alkhabbaz owned an automobile which she loaned to her Aunt Marianna R. Linehan for a trip to Wisconsin. While in Wisconsin the car was involved in a one car accident which killed Marianna and injured her daughter, Laura, who was driving at the time. Marianna and Laura had resided together in the same household.

Marianna’s personal representative sued Alkhabbaz; Laura Linehan; State Farm Mutual, which insured the Alkhabbaz vehicle; and Liberty Mutual Insurance Company, which insured Marianna’s automobile (not the automobile involved in the accident). Alkhabbaz was never served with process and thus is not presently a party to the suit. In its answer State Farm Mutual admitted Laura was driving the Alkhabbaz vehicle with the consent of the owner and was thus an insured under the policy. However, State Farm asserted that, since Marianna and Laura were residents of the same household, the State Farm policy afforded no coverage for a claim against it for any negligence of Laura Linehan’s because of the exclusion pertaining to members of the same household. State Farm also affirmatively pleaded that the alleged negligence having occurred in the State of Wisconsin, the law of that jurisdiction applied. The trial court granted State Farm a summary judgment relying on Reid v. State Farm Fire & Cas. Co., 352 So.2d 1172 (Fla.1978) and this appeal ensued.

We have considered all of appellant’s theories as to why Reid does not control this case and remain unimpressed. There, the Supreme Court upheld the validity of the household exclusion as a contractual provision in such a policy. While the facts are not identical, the principle is the same and we hold that Reid, supra, does support the trial judge’s decision. Accordingly, the judgment appealed from is affirmed.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.

      . Paraphrased, the exclusion provides that this insurance does not apply under coverage A to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured.

      . The Florida dangerous instrumentality doctrine as applied to automobiles does not pertain in Wisconsin.


text:
    ST. ANDREWS CORPORATION, a Florida Corporation, Appellant, v. Richard A. NEUBAUER and Winnie F. Neubauer, his wife, Larry Eaton, Robert N. Jones, William F. Andrews, Charles E. Lewis and Elizabeth C. Lewis, his wife, Andrew Palguta and Edith S. Palguta, his wife, and Arthur Montgomery, Appellees.
    No. 80-394.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    L. Louis Mrachek, Gunster, Yoakley, Criser & Stewart, West Palm Beach, for appellant.
    Margaret L. Cooper, Jones & Foster, West Palm Beach, for appellees.
   PER CURIAM.

The trial court in an extensive and detailed order found that a permanent easement exists, in favor of appellees, over the south five feet of appellant’s property. The court also determined that the proof was insufficient to establish an easement by prescription over the north ten feet of appellant’s property. Our review of the record leads us to conclude that both findings are supported by substantial competent evidence and accordingly, the judgment is affirmed.

DOWNEY and HURLEY, JJ., and UP-CHURCH, JOHN J., IV, Associate Judge, concur.


text:
    Roger Leon TYKOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 80-504.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Rehearing Denied June 17, 1981.
    Richard L. Jorandby, Public Defender, and John Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction of manslaughter by intoxicated motorist and we vacate the adjudication for vehicular homicide.

MODIFIED AND AFFIRMED AS MODIFIED.

BERANEK, HERSEY and HURLEY, JJ., concur.


text:
    Tommie Lee DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-516.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Tommie Lee Durden, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction but vacate the sentence and remand for resentencing in light of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981.)

BERANEK, HERSEY and HURLEY, JJ., concur.


text:
    Marie DEFREITAS, Appellant, v. William DEFREITAS, Appellee.
    No. 80-870.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.

      Kenneth Ofgang of Law Offices of Lieberman & Burke, Miami, for appellant.
    James A. Week of Week & Week, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order of modification of child support in a domestic matter. The former wife asserts that the husband’s petition for modification was an insufficient pleading upon which to change the amount of child support. We agree and reverse. Florida law clearly holds that a trial court lacks jurisdiction to hear and determine matters which are not the subject of appropriate pleadings and notice. Barreiro v. Barreiro, 377 So.2d 999 (Fla.3d DCA 1979); and Purvis v. Carver, 303 So.2d 681 (Fla. 4th DCA 1974). Here, the husband filed a petition for modification wherein he sought to have custody of the children transferred to him. The request for change of custody was denied, but the amount of child support was substantially altered.

We conclude that the order below must be reversed, but we note the continuing jurisdiction of the trial court in this matter and remand for further proceedings without prejudice to consideration of all issues of child support upon the filing of appropriate pleadings.

REVERSED AND REMANDED.

MOORE, BERANEK, and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    Chris BENTLEY, Director, Division of Administrative Hearings, and William E. Williams, Appellants, v. STATE ex rel. Alex ROGERS et al., Appellees.
    No. 80-1348.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.

      Jim Smith, Atty. Gen., and John Rimes, Asst. Atty. Gen., Tallahassee, for appellants.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellees.
   BERANEK, Judge.

The Director of the Division of Administrative Hearings, an executive officer appeals from an order entered by the Circuit Court of Broward County which found certain portions of Chapter 394, Florida Mental Health Act, unconstitutional. The specific portions of the Act found unconstitutional were Sections 394.459(3)(a) and 394.-467(4)(h), Florida Statutes (1979). We agree and affirm.

Appellant is the director of the Division of Administrative Hearings and is charged with responsibility pursuant to the aforementioned statutes of carrying out hearings to determine the competency of mental patients to consent to treatment. Appellees are patients of the South Florida State Hospital. They were admitted to the hospital on an involuntary basis pursuant to Chapter 394, Florida Statutes. None of the appel-lees have been adjudicated incompetent by a court in the State of Florida under the procedure set forth in Chapter 744, Florida Statutes. The authorities at the South Florida Hospital desired to administer medication and other forms of treatment to these patients. The patients refused to consent to said treatment and the authorities at the hospital sought an order from a hearing officer to the effect that the patients were incompetent to consent to treatment. The particular statutes in question are as follows. Section 394.459, Florida Statutes (1979) provides:

(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.—
(a) All persons entering a facility shall be asked to give express and informed consent for treatment after disclosure to the patient if he is competent, or his guardian if he is a minor or is incompetent, of the purpose of the treatment to be provided, the common side effects thereof, alternative treatment modalities, the approximate length of care, and that any consent given by a patient may be revoked orally or in writing prior to or during the treatment period by the patient or his guardian.
If a voluntary patient refuses to consent to or revokes consent for treatment, such patient shall be discharged within 3 days or, in the event the patient meets the criteria for involuntary placement, such proceedings shall be instituted within 3 days. If any patient refuses treatment and is not discharged as a result, treatment may be rendered such patient in the least restrictive manner on an emergency basis, upon the written order of a mental health professional when such mental health professional determines treatment is necessary for the safety of the patient or others. If any patient refuses to consent to treatment or revokes consent previously provided, and if, in the opinion of the patient’s mental health professional, the treatment not consented to is essential to appropriate care of such patient hereunder, then the administrator shall immediately petition the hearing examiner for a hearing to determine the competency of the patient to consent to treatment. If the hearing examiner finds that the patient is incompetent to consent to treatment, he shall appoint a guardian advocate, who shall act on the patient’s behalf relating to provision of express and informed consent to treatment. A guardian advocate appointed pursuant to the provisions of this act shall meet the qualifications of a guardian contained in part IV of chapter 744, except that no mental health professional, department employee, or facility administrator shall be appointed.

Section 394.467(4)(h), Florida Statutes (1979) provides:

(4) PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.—
sf: sjc s(t >}: *
(h) At any hearing hereunder, the hearing examiner shall consider testimony and evidence regarding the patient’s competence to consent to treatment. If the hearing examiner finds that the patient is incompetent to consent to treatment, he shall appoint a guardian advocate who shall act on the patient’s behalf relating to the provision of express and informed consent to treatment. If the hearing examiner finds the patient is competent to consent to treatment, then the patient’s competence shall be restored, and any guardian advocate previously appointed shall be discharged.

The trial court found both statutes unconstitutional as encroachments upon the power of the judicial branch of government in that a hearing officer rather than a court is authorized to make the determination of competency.

Article II, Section 3 of the Florida Constitution provides as follows:

SECTION 3. Branches of government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. (Emphasis supplied.)

The “judicial branch” of government is described in Article V of the Florida Constitution. Article V, Section 1, provides as follows:

SECTION 1. Courts. — The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices.

From the constitution it appears obvious there shall be separation of powers in the government of this state, and that there shall be an independent judicial branch of government. Jurisdiction of the courts within the judicial branch is specifically dealt with in the schedule stated in Section 20, Article V of the Constitution. This schedule provides as follows:

SECTION 20. Schedule to Article V.—
(a) This article shall replace all of Article V of the Constitution of 1885, as amended, which shall then stand repealed.
(b) Except to the extent inconsistent with the provisions of this article, all provisions of law and rules of court in force on the effective date of this article shall continue in effect until superseded in the manner authorized by the constitution.
(c) After this article becomes effective and until changed by general law consistent with sections 1 through 19 of this article:
(3) Circuit courts shall have jurisdiction of appeals from county courts and municipal courts, except those appeals which may be taken directly to the supreme court; and they shall have exclusive original jurisdiction in all actions at law not cognizable by the county courts; of proceedings relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, guardi anship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate; in all cases in equity including all cases relating to juveniles; of all felonies and of all misdemeanors arising
(Emphasis supplied.)

In response to the language indicated above, appellant makes alternative arguments. Appellant initially urges the legislature has, by general law, removed “the determination of incompetency” from the jurisdiction of Circuit Courts. As a secondary argument, appellant contends that, even if “the determination of incompetency” were a matter exclusively within the judicial function, the issue of incompetency to consent to mental treatment is some lesser determination which is not within the exclusive judicial function.

We reject both arguments. Article V, Section 20, Subsection (c) does not authorize removal of purely judicial functions from the courts by virtue of general law. Purely judicial functions must remain within the judicial branch. Sub-section (c) merely allows the legislature by general law and consistent with all other provisions of Article V, to allocate those functions between the circuit courts and the county courts but not to remove them entirely from judicial consideration.

As to appellant’s secondary argument, we have no hesitancy in concluding that a determination that an individual is incompetent to consent to treatment is of a sufficient magnitude to fall within the constitutionally mandated description of “guardianship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate.” The result of a determination that a patient is incompetent to consent to treatment is that a guardian advocate is appointed who may in turn consent to the treatment or make other decisions for the unwilling patient. The decision as to whether a person will be compelled to accept treatment chosen by another is basic to personal liberty and freedom. A determination that a person is incompetent to consent is clearly within the constitutionally described jurisdiction of the circuit court and is of a judicial nature.

We therefore conclude that the statutes aforementioned are unconstitutional. We consider it unnecessary to reach the issue considered by the trial court as to the lack of statutory standards or vagueness in regard to determinations of incompetency to consent to treatment. We find all remaining arguments by appellant to be without merit and do not comment thereon. The order below is affirmed in accordance with this opinion.

AFFIRMED.

HERSEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Ronald Layton SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-264.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Ronald Layton Smith, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to Florida Rule of Civil Procedure 3.850, we reverse and remand to the trial court to conduct an evidentiary hearing on the issue of ineffective assistance of counsel.

REVERSED and REMANDED.

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Petitioner, v. James M. HILLYARD, Respondent.
    No. 81-556.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Rehearing Denied June 24, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Jerome M. Rosenblum, Hollywood, for respondent.
   MOORE, Judge.

In a petition for writ of common law certiorari the State of Florida asks us to quash an order of the circuit court acting in its appellate capacity. In the order the circuit court dismissed the State’s appeal from a county court order dismissing an information and remanded the cause to the county court with directions to discharge the respondent pursuant to the speedy trial rule, Fla.R.Crim.P. 3.191(a).

The respondent was charged by information with unlawfully exposing or exhibiting his sexual organs in a public place contrary to Section 800.03, Florida Statutes (1979). On November 26, 1980, the county court granted respondent’s motion to dismiss the information and the State immediately filed its notice of appeal to the circuit court. Although the State also filed a motion for extension of speedy trial time pending appeal, the trial court did not deny the motion for extension until after the 90 day speedy trial time for misdemeanors had expired. Contending that he was entitled to a discharge because the speedy trial time had expired, the respondent moved to dismiss the appeal as moot, or in the alternative, moved for discharge. The appellate court granted the motion to dismiss the appeal and directed the trial court to discharge the respondent.

In exercising our common law cer-tiorari jurisdiction to review decisions of the circuit court acting in its appellate capacity, our review is limited to a determination of whether the circuit court followed procedural due process and observed the essential requirements of law. Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980). We find that the circuit court, acting in its appellate capacity, departed from the essential requirements of law.

Although an order granting a motion to discharge is appealable an appellate court has no jurisdiction to entertain a motion for discharge. A trial court has the initial responsibility for determining whether a defendant should be discharged pursuant to the speedy trial rule. See, State v. Jenkins, 389 So.2d 971 (Fla.1980). The nature of appellate proceedings dictates that a trial court consider and rule on a motion for discharge before an appellate court can review the issue. The circuit court, therefore, improperly considered respondent’s motion for discharge.

Since the respondent had not been discharged by the trial court, the State’s appeal of the dismissal of the information was not moot. Therefore, the procedure followed by the circuit court departed from the essential requirements of law by depriving the State of its right to appeal the county court’s order dismissing the information.

We do not rule on the propriety of the denial of the extension of speedy trial time. Such a determination can be made if and when the defendant is discharged.

The petition for writ of certiorari is granted and the order of the circuit court dismissing the State’s appeal is quashed with directions to reinstate the appeal.

HERSEY and HURLEY, JJ., concur.


text:
    Eddie E. EVERHART, Appellant, v. STATE of Florida, Appellee.
    No. 81-662.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1981.
    Eddie E. Everhart, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant’s contention that his sentence has been illegally enhanced is disposed of by the holding in Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980) which decided the issue adversely to appellant’s position. We nevertheless remand for resentencing in light of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. Case No. 1981).

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: COWART, Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, a Foreign Corporation, and Richard Allen Schultz, Individually, Appellants, v. Vincent R. STOWELL, Florida Farm Bureau Mutual Insurance Company, a Foreign Corporation, and Dorothy Morrell, Individually, Appellees.
    No. 80-31.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Gary L. Dirlam of Gurney, Gurney & Handley, P. A., Orlando, for appellants.
    No appearance for appellees.
   COWART, Judge.

We affirm the trial court’s judgment holding that appellee Dorothy Morrell, as owner of a motor vehicle, was not liable for injuries suffered by appellee Vincent R. Stowell from the operation of the vehicle by appellant Richard Allen Schultz who was using it with the permission of one Henry Ratajczak, a repairman to whom it had been entrusted for repairs by Lawrence Morrell, son of the owner, appellee Dorothy Morrell. See Castillo v. Bickley, 363 So.2d 792 (Fla.1978).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: ORFINGER, Judge.

text:
    Steven William GOSS, Appellant, v. STATE of Florida, Appellee.
    No. 80-555.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was charged with and convicted of first degree murder, felony murder, sexual battery and kidnapping of the deceased female. He appeals, contending that the court erred in sustaining the kidnapping conviction and in refusing to grant a continuance when an out of state expert medical witness declined to appear and testify on his behalf.

Appellant fails to demonstrate an abuse of the court’s discretion in denying the continuance. Andrews v. State, 134 Fla. 450, 184 So. 88 (1938); Holman v. State, 347 So.2d 832 (Fla.3d DCA 1977), cert. denied 354 So.2d 981 (1978). Thus there is no error shown as to that issue.

We agree with appellant that there is insufficient evidence to sustain the kidnapping conviction, so the conviction on Count 5 of the information, kidnapping, is reversed and the sentence on that count is set aside.

Sua sponte, we find fundamental error in the conviction for the felony murder count, which issue we address notwithstanding appellant’s failure to raise it either in the trial court or on appeal.

Appellant’s conviction on the felony murder count arose out of the finding of the underlying felony of sexual battery. A defendant cannot be convicted of both felony murder and the underlying felony which serves as the basis for the felony murder count. State v. Pinder, 375 So.2d 836 (Fla. 1979). Additionally, since there was only one homicide here, there could only be one murder conviction, so appellant could not be convicted of both premeditated murder and felony murder. Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981).

We therefore affirm the convictions and sentences for premeditated murder and sexual battery, and reverse the convictions and vacate the sentences on the kidnapping and felony murder counts.

AFFIRMED in part, REVERSED in part.

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

      . Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981).


text:
    August Leonard DROLSHAGEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1035.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    James B. Gibson, Public Defender, Brynn Newton, Asst. Public Defender and Julianne Piggotte, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Dismissed on the authority of S. C. v. State of Florida, 388 So.2d 643 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and COWART, J., concur.


author: COBB, Judge.

text:
    James McCREADY, Appellant, v. Charles M. BOOTH, Jr., J. K. Higgins and Clarence A. Johnson, II, d/b/a The Villas Apartments and Insurance Company of North America, Appellees.
    No. 80-1003.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Leslie King O’Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellant.
    Walter A. Ketcham, Jr., of Walker & Buckmaster, P. A., Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellees.
   COBB, Judge.

This is an appeal from summary judgment entered in favor of a landlord against a tenant, whose suit claimed that negligence in his eviction resulted in the loss of his personal property. We affirm.

James McCready entered into a written lease with the defendants Booth, Higgins and Johnson, d/b/a The Villas Apartments (hereinafter referred to as the Villas), for the one-year lease of an apartment beginning April 1, 1974. After that lease expired, McCready continued to occupy the apartment on a month-to-month basis. McCready’s work required him to be out of town, and during the years 1974 through 1976 the resident manager at the Villas accepted several late rental payments from McCready, along with the payment of a late fee.

In August of 1977, the Villas got a new supervisor who strictly enforced the rental provisions of the leases. On August 12, 1977, McCready left town on a business trip and he deposited his August rent in the mail slot of the Villas’ office, with a note explaining that he was going to be out of town until approximately November. The resident manager attempted to personally contact McCready by telephone, but could not locate him. On September 8, 1977, the Villas, through its resident manager, posted a notice to pay rent on McCready’s apartment door. On September 13, 1977, the Villas filed an action for eviction against McCready. The summons for that eviction action was served by posting the process on McCready’s apartment door. On September 23,1977, a writ of possession was posted on McCready’s apartment door. On September 26, 1977, a deputy sheriff removed all of McCready’s furniture and possessions from his apartment and placed them at the edge of the street. Various passersby then proceeded to steal the possessions. In October, after the eviction had taken place, McCready sent a check to the Villas for the rent for September and October. There appears to be a dispute between McCready and the Villas as to whether the latter had storage space where it could reasonably have stored his possessions.

In his complaint, McCready alleged that the Villas unjustifiably evicted him because (1) it knew that McCready’s work required him to be out of town and that he would pay his rent; and (2) it was negligent in failing to take care of McCready’s possessions that the deputy sheriff moved outside at the time of the eviction. On appeal, McCready has foregone the estoppel argument and only pursued the negligence argument. Both at trial and in his appellate brief, McCready conceded that the Villas followed the statutory procedure for eviction. Nevertheless, McCready contends that although the Villas may have complied with all the requisite statutory and regulatory provisions, it was still negligent in not protecting his possessions.

Negligence must be predicated upon duty. Under the circumstances of this case, no duty was owed by Villas to McCready to protect his possessions. The eviction statute does not prescribe a procedure for a landlord to follow after he has taken possession of premises from a tenant. The Villas asserts that, since the statute is silent in this regard, it had no duty to do anything to safeguard MeCready’s possessions, even though it knew he was out of town, that people passing by might well pick up his belongings, and that there was storage space available. We know of no statutory or case law holding that a tenant, who has been lawfully evicted pursuant to statutory procedure, can maintain an action in tort against a landlord for damaged personal property, absent some showing that such damage was intentionally or maliciously done, which is not alleged in this ease.

Here, it was the tenant’s wrongful act in breaching his covenant to pay rent, rather than any wrongful act on the part of the landlord, that caused the loss to the tenant. The tenant’s breach set the lawful eviction process in motion. Therefore, the act of the Villas in physically dispossessing the plaintiff’s property was not actionable. There was no wrongful eviction. Nor was there any allegation or showing of intentional or malicious destruction of personal property. As was stated by the Second District Court of Appeal in Century Water Systems, Inc. v. Adca Corp., 355 So.2d 1255, 1257 (Fla.2d DCA 1978):

Underlying or implicit in all the decisions is that the act of the landlord constituting the constructive eviction be wrongful, unwarranted or unlawful. Eviction, whether actual or constructive, to be actionable must be wrongful.

We agree with the Villas that it had no duty to store or otherwise maintain the plaintiff’s personal property once his tenancy had been lawfully terminated. For this court to hold otherwise would be an invasion of the legislative prerogative, and would also fly in the face of established commonlaw principles. See 25 Am.Jur.2d Ejectment § 136 (1966). The duty of the Villas to its tenant ended when the physical dispossession of the tenant’s property was surrendered to the legal process under the sheriff’s authority in executing the writ of possession.

The trial judge was eminently correct in the entry of summary judgment for the landlord, and that judgment is affirmed.

AFFIRMED.

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


text:
    Bruce KIZAR and Bill Kuykendall, Appellants, v. Nancy Kelly WITTENBERG, as Secretary of the Florida Department of Professional Regulation, Appellee.
    No. 80-497.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Thomas V. Infantino, II, Winter Park, for appellants.
    Deborah J. Miller, Dept, of Professional Regulation, Tallahassee, for appellee.
   ORFINGER, Judge.

Appellants appeal the issuance of a temporary injunction enjoining them from engaging in activities which constitute the unauthorized practice of dentistry. For the reasons set forth, we reverse.

The action below was brought to enjoin alleged violations of Chapter 466, Florida Statutes (1979), the Dental Practice Act. Appellant contended below and contends now that appellee is not the proper party to bring such action. The trial court disagreed and specifically held that appellee was a proper party. Because of our ruling on this point, we will not discuss the other issues raised by appellants.

Appellee supports her position as the proper party plaintiff by citing section 455.-227(3), Florida Statutes (1979), which says in part that “the department [of Professional Regulation] may file a proceeding in the name of the state seeking issuance of an injunction .. . against any person ...” who violates any provision of law with respect to regulated professions. She also contends that section 20.05, Florida Statutes (1979), gives her, as Secretary of the Department, the power and authority to execute the powers, duties and functions vested in that Department.

Unlike the situation in Starchk v. Wittenberg, 392 So.2d 1007 (Fla. 5th DCA 1981), this action was brought in appellee’s representative capacity, since it was styled “as Secretary of the Florida Department of Professional Regulation.” In Starchk, this court said:

Section 20.05, Florida Statutes (1979), provides that each head of a department of the executive branch of state government shall execute the powers, duties and functions vested in that department. This general statement of the authority of a department head to exercise the authority of a governmental agency authorizes neither the disregard of the clear language of the above statute that such action be brought in the name of the state nor the bringing of a legal action in the personal name of the department head.

The question here is whether a suit by the Secretary in her representative capacity as the head of the Department of Professional Regulation satisfies the statutory requirement that suit be filed in the name of the state. We think not.

We do not find that this specific question has been before the courts in Florida. However, it is a basic principle of law that

While the “powers of government”, that are divided and limited by the constitution cannot legally be delegated or exercised except as authorized by the constitution, yet valid and appropriate statutes may, within organic limitations, confer upon officers or commissions or boards, administrative or ministerial authority and duties, which may require the exercise of administrative discretion and judgment. But in all cases when the rights of life, liberty or property are materially affected by the exercise of official administrative or ministerial discretion and judgment, due process of law must be afforded; and the proceedings must accord with valid statutory requirements; for such proceedings have a legal basis only in a compliance with valid statutory provisions conferring the authority. The official act is authorized only when the material provisions of the statute authorizing or regulating action are obeyed.

Williams v. Kelly, 133 Fla. 244, 182 So. 881 (1938).

The right of a state officer to bring an action in his or her capacity as such officer is discussed in 81A C.J.S. States § 297 (1977) thusly:

Capacity of state board or officer to sue as such. The state may prescribe by statute cases in which its officers or agents may sue in their own or official names, and, where a state board or commission constitutes a legal entity distinct from the state, it will ordinarily be accorded the power to sue, and the state’s inherent right to sue in its own courts extends to any of its sovereign agencies possessing the requisite capacity. On the other hand, a state board or commission which is not an entity apart from the state, lacks capacity to sue in its own name in the absence of statutory authorization, and, where the statute extends capacity to sue to the board or officer only under prescribed circumstances, suit may not be brought where the facts fail to bring the case within the purview of the statute, (emphasis added).

Id. at 941, 942.

Had the Legislature intended the Secretary to have the right to bring the action in her official capacity it would have said so. Section 455.211(1) specifically gives “the secretary of the department standing to challenge any rule or proposed rule of a board ...” Section 455.211(2) states that “either the secretary or the board shall be a substantially interested party for purposes of § 120.54(5).” Section 455.225, in discussing disciplinary proceedings, gives the secretary power to grant certain extensions of time. So it would seem that where the Legislature intends to give the secretary standing to bring the action, as secretary of the department, it has said so. In this instance, the statute requires the action to be brought by the department in the sovereign name of the state.

Appellants’ motion to dismiss on the ground that the secretary had no standing to bring the action should have been granted, so the order granting the temporary injunction is reversed and the cause is remanded to the trial court with directions to dismiss the complaint.

REVERSED and REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Fla.R.App.P. 9.130(a)(3)(B).

      . In Starchk, this court held that the title used was merely descriptio personae. See also Thomas v. Martin, 100 Fla. 146, 129 So. 602 (1930).


text:
    Robert Lee FENN, Appellant, v. STATE of Florida, Appellee.
    No. 80-562.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant appeals his conviction by a jury of attempted burglary with an assault on one count, and of battery on a law enforcement officer on the second count.

Appellant was sentenced to imprisonment for 14 years on the attempted burglary count and to a four year concurrent term on the battery count. He appeals, questioning the sufficiency of the evidence on both counts. We affirm the convictions.

The State concedes that there was insufficient proof of an assault on the police officer named in the first count, because there was no evidence that appellant ever did anything to create a well founded fear in the officer that any violence was imminent. However, since the jury found appellant guilty of attempted burglary, the question of whether an assault was proved becomes moot.

Under section 810.02, Florida Statutes (1979), burglary is a first degree felony if in the course of committing an offense the offender commits an assault on any person. Although appellant was charged with burglary, the jury found him guilty of attempted burglary, and on that offense, there is no enhancement of the crime even if an assault takes place. Section 777.04(4)(c), Florida Statutes (1979), provides that the attempt to commit any burglary is a felony of the third degree, which is a crime punishable by a maximum term of five years imprisonment. Crook v. State, 385 So.2d 1136 (Fla. 1st DCA 1980); McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979).

Thus we note fundamental error in sentencing appellant on the first count to a term of imprisonment longer than five years. See Butler v. State, 343 So.2d 93 (Fla. 3d DCA 1977).

The judgments of conviction and the sentence on the count of battery on a law enforcement officer are affirmed. The fourteen year sentence on the attempted burglary conviction is vacated and the case is remanded to the trial court for resentenc-ing on that count. Appellant shall be present for resentencing.

AFFIRMED in part; REVERSED in part, and REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 810.01(2), Florida Statutes (1979).

      . §§ 784.03 and 784.07, Florida Statutes (1979). This was not the same police officer on whom the assault was allegedly committed.

      . § 775.082(3)(d), Fla.Stat. (1979).


author: WENTWORTH, Judge.

text:
    DeWayne Lee BRUNER, Appellant, v. STATE of Florida, Appellee.
    No. AB-277.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    DeWayne Lee Bruner, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Bruner appeals the denial of his motion to correct sentence contending he is entitled to additional jail time credit pursuant to the principles enunciated in Voulo v. Wainwright, 290 So.2d 58 (Fla.1974) and Gordon v. State, 379 So.2d 1022 (Fla. 1st DCA 1980). These cases indicate that a defendant is entitled to jail time credit for the period of time he was held on the charge which prompted the revocation of his probation. However, it is well settled that a defendant, being held on numerous charges, is not entitled to a multiple credit. Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974); Watson v. State, 340 So.2d 961 (Fla. 2d DCA 1976), cert. denied 348 So.2d 955 (Fla.1977); Radley v. State, 372 So.2d 1179 (Fla. 2d DCA 1979). We are unable to determine from the record whether Bruner received the jail time credit against the St. John’s County sentence. Accordingly, the cause is remanded to the trial court to determine if credit was applied to Bruner’s St. John’s County sentence. If not, such credit shall be applied to the present sentence, and the trial court may enter an order amending the sentence. Bruner need not be present for this purpose.

The order appealed is affirmed, but the cause is remanded with directions.

SHAW and THOMPSON, JJ., concur.


author: OWEN, WILLIAM C., Jr. (Retired), Associate Judge. WENTWORTH, Judge,

text:
    NORTH BROWARD HOSPITAL DISTRICT and Liberty Mutual Insurance Company, Appellants/Cross-Appellees, v. James GAVAGAN and Argonaut Insurance Company, Appellees/Cross-Appellants.
    No. VV-25.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Frank M. Hamilton of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants/cross-appellees.

      Joseph L. Daye and C. Randal Morcroft, Fort Lauderdale, for appellees/eross-appel-lants.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

In this workers’ compensation claim, the deputy commissioner granted the claimant’s Section 440.28, Florida Statutes, petition for modification and, as a result of a finding that a subsequent injury had merged with a pre-existing permanent partial disability, awarded claimant permanent partial disability under the doctrine of merger, apportioning the liability between the carrier for the first injury (Argonaut) and the carrier for the second injury (Liberty). Liberty brings this appeal and the claimant brings a cross-appeal. Finding no error, we affirm the compensation order.

In 1973 claimant sustained a compensable injury to his left knee resulting, over a period of time, in multiple knee surgery and (because of an altered gait) back surgery. After each surgery, whenever he was able to do so, he returned to work for the same employer. On January 9, 1979, claimant sustained a second compensable injury to the same knee. At that time claimant was sixty years of age. He filed a claim for permanent total disability but made no alternative claim. As a result of a hearing on the claim, the deputy commissioner entered an order denying the claim because the claimant testified that he had refused offered employment as a security guard because it did not pay enough.

Immediately, claimant filed a petition for modification by which he sought compensation for permanent partial disability less than permanent total, asserting both a change in condition and a mistake in determination of fact. As a result of a hearing on the petition for modification, the deputy commissioner (impliedly) found a change in condition and entered the appealed order.

Appellant first contends that it was error for the deputy commissioner to consider a petition for modification under Section 440.28, Florida Statutes, because there was neither a change in condition nor a mistake in determining facts. However, the record shows that claimant’s treating physician, Dr. Rahilly, testified that claimant’s condition was worse than at the time of the prior hearing. This testimony was adequate to support the deputy commissioner’s (implied) finding of a changed condition. Housing by Vogue v. Hendon, 386 So.2d 884 (Fla. 1st DCA 1980).

Appellant next contends that the deputy commissioner erred in finding a merger of the disabilities resulting from the 1973 accident and those resulting from the 1979 accident. The deputy commissioner found that with regard to the 1973 accident, claimant reached maximum medical improvement on the day preceding the second accident, and, as a result of the first accident, had sustained a 50% permanent partial disability to his leg and a 5% permanent partial disability to his body as a whole, the effect of which, in claimant’s ease, resulted in a 50% wage impairment. The deputy commissioner also found that as a result of the second accident the claimant sustained an additional 10% permanent partial disability to the leg, the effect of which merged with the existing permanent partial disability, causing claimant to suffer a 60% loss of wage-earning capacity. The record contains competent, substantial evidence to sustain the deputy commissioner’s findings as to the extent of claimant’s disability resulting from the respective accidents, as well as his finding that the two accidents merged to cause a permanent partial disability greater than that which would have resulted from the subsequent injury standing alone, the latter being only a 10% disability to the leg, while the merger increased by 10% the loss of wage-earning capacity.

Finally, appellant contends that even if merger is found to be present, the deputy commissioner utilized an incorrect formula to determine the respective responsibilities of Argonaut and Liberty. Appellant’s argument is highlighted by the fact that Argonaut’s responsibility for claimant’s 50% wage impairment resulting from the first accident (based upon the compensation rate then in effect) translated into $11,550.00, whereas Liberty’s responsibility for the remaining 10% wage impairment (based upon the compensation rate applicable to the second accident) translated into the sum of $29,400.00. Notwithstanding this seeming inequity, the deputy commissioner’s computations and application of Section 440.15(3)(u)(3), Florida Statutes (1978), correctly followed the apportionment formula set forth in the case of Jackson v. Natt Harrison Associates, 283 So.2d 27 (Fla.1973), as explicated below.

At the time of the January, 1979, accident, claimant was entitled to the maximum compensation rate of $130.00 per week. As a result of the finding of merger of the two accidents, claimant sustained a 60% loss of wage-earning capacity and was therefore entitled, under Section 440.-15(3)(u)(3), Florida Statutes (1978), to 60% of 525 weeks, or 315 weeks compensation at $130.00 a week, a total of $40,950.00. From this was subtracted the $11,550.00 compensation (paid and payable) from the first accident, the difference of $29,400.00 being the amount awarded for the second accident, for which sum Liberty is responsible. This computation precisely follows the formula of the Jackson case, supra. The fact that Liberty bears a substantially greater dollar responsibility than Argonaut, notwithstanding the latter’s greater share of claimant’s permanent partial disability rating, is due simply to a combination of two statutory changes between the time of the 1973 accident and the 1979 accident, i. e., a change in the compensation rate from $66.00 per week to $130.00 per week, and a change in the number of weeks of compensation from 175 weeks to 315 weeks.

Claimant’s cross-appeal simply asserts that the deputy commissioner erred in not finding claimant to be permanently and totally disabled on the basis of loss of wage-earning capacity. The deputy commissioner’s finding that claimant did, in fact, have a wage-earning capacity is supported by the record. Thus, we find no merit to the cross-appeal.

AFFIRMED.

MILLS, C. J., concurs.

WENTWORTH, J., concurs with opinion.

WENTWORTH, Judge,

concurring.

I concur in the majority opinion, but note that § 440.15(5)(c) provides that in determining compensation for a subsequent injury the claimant’s “average weekly wages shall be such sum as will represent his earning capacity at the time of the later injury.” I have some difficulty reconciling that provision with the award in this case for claimant’s last injury, in view of the deputy’s determination that claimant’s employment had been sheltered during the years preceding that accident. However, appellant has not argued the applicability of the quoted provision, and the parties stipulated as to claimant’s average weekly wage and compensation rate for his second injury. Our affirmance therefore does not determine potential issues in this respect.

      . At the time of the 1973 accident, a 50% permanent partial disability equalled 50% of 350 weeks. At claimant’s then compensation rate of $66.00 per week, this yielded $11,550.00.


text:
    Gwendolyn Rogers HICKS, Appellant, v. STATE of Florida, Appellee.
    No. VV-65.
    District Court of Appeal of Florida, First District.
    May 21, 1981.

      Michael E. Allen, Public Defender and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Hicks appeals a judgment of conviction following a no contest plea to a charge of unlawful possession of valium, reserving the right to appeal the court’s denial of her motion to suppress controlled substances found during warrantless searches of her purse and a brown leather pouch in her car. Denial of the motion to suppress was error, and we reverse.

Florida Highway Patrolman Cranford arrested Hicks for driving while intoxicated, handcuffed her, and transported her and her purse to the county jail. Meanwhile, Cranford called trooper Horne to stay with appellant’s car until it could be towed off the interstate highway to a service station near the jail. As he approached the car to roll up a window and shut the door tightly, Horne spotted a bank deposit bag on the floor in front of the driver’s seat. He looked in it to see if it contained anything valuable and when he found coins inside, thought'it reasonable to open and search a brown leather pouch or “purse” next to the bag. This pouch contained some loose capsules. Horne relayed his findings to Cran-ford at the jail, and Cranford then searched appellant’s purse, which contained valium, pentobarbital and methaqualone.

The state attempts to justify these searches as valid “inventory” or “protective” searches for which no warrant is required under the state and federal constitutions. Inventory searches are generally approved as an exception to the warrant requirement only if they are reasonable and are conducted in accord with standardized police procedures, and not as a pretext for otherwise invalid searches. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969); Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976).

These searches did not meet those requirements. There is no indication in this record that either search, particularly the purse search at the station, was conducted pursuant to standard highway patrol procedures. Moreover, the searches were unreasonable in a constitutional sense because though the police may have had a legitimate interest in securing the car for towing and inventorying its contents, Hicks had a countervailing and superior expectation of privacy in her personal luggage, such as the leather pouch searched within the car. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979). Cf. Knight v. State, 298 So.2d 908 (Fla. 1st DCA 1981). Trooper Horne did not even complete an inventory list of the car’s contents, belying the inventory rationale offered here by the state.

Corresponding or perhaps greater privacy rights existed in the contents of appellant’s purse. Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979). The inventory basis for this search at the jail also was pretextual: trooper Cranford admitted that one reason he decided to search the purse was his belief, based on the news from trooper Horne, that it contained contraband. See also Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976).

The search of appellant’s purse was very different from the protective jailhouse search of a defendant’s travel bag upheld in Delatte v. State, 384 So.2d 245 (Fla. 1st DCA 1980). In Delatte, the police had reason to believe the bag, to which the defendant would have access, contained a weapon. Here trooper Cranford testified he had no reason to think appellant’s purse contained a weapon; and appellant, still handcuffed, had no control over the contents of the purse. See Ulesky, supra, 379 So.2d at 126. Absent these considerations, there was no reason the purse could not have been sealed, inventoried and stored, if necessary, as a unit.

REVERSED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Mark E. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. VV-257.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Michael Allen, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Richardson appeals his sentence on a charge of robbery with a firearm. With great particularity the trial judge recited that Richardson qualified for sentencing under the Youthful Offender Act, Chapter 958, Florida Statutes, in all respects but one. Section 958.04(l)(c) excludes from the Act persons convicted of life felonies. The judge determined that because this crime was a first-degree felony which involved the use of a firearm, Section 775.087(1) enhanced the offense to a life felony and precluded Richardson’s sentencing as a Youthful Offender.

We agree with Richardson that the enhancement statute should not have been applied here. See Fowler v. State, 375 So.2d 879 (Fla.2d DCA 1979); Postell v. State, 383 So.2d 1159 (Fla.3d DCA 1980).

Accordingly, the sentence is reversed and this cause is remanded to the trial court for resentencing under Chapter 958.

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Eric Earl GREENE, Appellant, v. STATE of Florida, Appellee.
    No. WW-57.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Michael E. Allen, Public Defender and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Greene raises four points on appeal, three of which are without merit. However, we agree with appellant’s contention that he was improperly sentenced. He had initially been sentenced pursuant to an adjudication of guilt on a burglary charge pursuant to Section 958.04(2), Florida Statutes (1979), as a youthful offender. Subsequently, he was charged with three separate robberies which led to the revocation of his probation. After the lower court revoked his probation, it reimposed a 15-year sentence for the original burglary charge contrary to Section 958.04(2). In so sentencing the appellant, the trial court erred because he met all the criteria of Section 958.04(2), mandating that section’s application. See Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980); Abram v. State, no. TT-193 (Fla.1st DCA, April 14, 1981) [1981 FLW 879].

As in Goodson and Abram we certify the following question to the Supreme Court of the State of Florida as one of great public importance:

Does Section 958.04(2), Florida Statutes (1979), provide for mandatory classification if certain statutory prerequisites are satisfied?

The case is reversed and remanded for proper sentencing consistent with this opinion. The lower court’s judgment is otherwise affirmed.

ERVIN, J., LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


text:
    Ricky POWELL, Appellant, v. STATE of Florida, Appellee.
    No. WW-312.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Michael E. Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981).

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Isabel LAMB, Appellant, v. Richard P. LAMB, Appellee.
    No. XX-379.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    L. Ralph Smith, Jr., and Thomas J. Maida of Peeples, Earl, Smith, Moore & Blank, Tallahassee, for appellant.
    C. Edwin Rude, Jr., and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee,
   PER CURIAM.

AFFIRMED.

We grant appellant’s motion for an attorney’s fee for successful defense of appellee’s cross-appeal, and remand to the trial court to determine the amount of fee to be awarded. Fla.R.App.P. 9.400(b).

SHAW and WENTWORTH, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.