author: HERSEY, Judge.

text:
    Sylvia J. CALFIN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, Division of Pari-Mutuel Wagering, Appellee.
    No. 80-255.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.

      Larry V. Bishins, Fort Lauderdale, and Arnold Lasky, Miami, for appellant.
    David M. Maloney, Staff Atty., Tallahassee, for appellee.
   HERSEY, Judge.

Sylvia Calfin, a horse trainer, was charged by administrative complaint with violation of three administrative rules, by allowing a horse under her care to race with the drug Butorphanol in its system. The rules alleged to have been violated are:

1. 7E-4.25(12)(a), Florida Administrative Code, which prohibits the racing of a horse with any narcotic, stimulant, depressant or local anesthetic;
2. 7E-405, Florida Administrative Code, which provides that the trainer shall be responsible for and be the insurer of the condition of the horse he enters; and
3. 7E-405, Florida Administrative Code, which provides that trainers are obligated to properly protect the horse and guard it against the administration or attempted administration of prohibited substances.

Following a former hearing before the Director of the Division of Pari-Mutuel Wagering, a final administrative order was entered, revoking Calfin’s license, declaring her ineligible for licensing for two years and imposing a $400.00 fine. Subsequently, an amended final order was entered identical to the original order except that it additionally denied Calfin all privileges of the grounds for two years.

In seeking review of this order, Cal-fin first challenges the constitutionality of the rules under which she was charged. Specifically, she claims that the term “narcotic” is not defined either statutorily or in the rules. Thus, according to Calfin, the rules fail to establish a reasonable standard of permissible conduct. However, in State v. Ashcraft, 378 So.2d 284 (Fla.1979), the Florida Supreme Court held that the term “excitative drug” was sufficiently definite to apprise ordinary persons of common intelligence what substances were proscribed. It follows then that the term “narcotic” sufficiently designates prohibited substances to a trainer who has or should have expertise not common to the ordinary person.

Calfin also contends that there was not sufficient evidence to support the finding that Butorphanol was a narcotic. Medical testimony at the hearing revealed that Butorphanol could produce as well as remove the narcotic effects of morphine. Further, Calfin stipulated that in the qualified opinion of Dr. Duer, head of the Division’s laboratory, Butorphanol is a narcotic. Accordingly, there was substantial evidence to support the finding that Butorphanol is a narcotic.

Calfin claims that the Division acted without authority in bringing the charges because there had been no finding by the stewards of a violation. Although the stewards have the authority to conduct inquiries and, if violations are discovered, to impose penalties, such action is not a prerequisite to action by the Division under Chapter 120, Florida Statutes (1979).

Also claimed as error by Calfin is the Division’s failing to submit a recommended final order as required by Section 120.57(l)(b)8, Florida Statutes (1979). This requirement applies to orders resulting from hearings conducted by hearing officers. However, when an agency head conducts a hearing as in the instant case, a recommended order is an unnecessary step in the administrative process. It would be absurd to require the agency head to submit a recommended order to himself and thus require him to accept or reject his own findings of fact.

Finally, Calfin correctly points out that under Rule 7E-4.09(3), Florida Administrative Code, she may be penalized only by denial, revocation or suspension of her license not exceeding sixty days and/or a fine not exceeding $200.00 for each violation. However, we construe the sixty-day limitation as applicable only to a suspension. The term “Revocation” implies termination without reference to a short time frame. If this were not so then use of both terms, “revocation” and “suspension” would constitute a redundancy. The term “Deny” is unrelated to any time period except that instance when something, as here an application for license, is denied. In short, we find the Division’s construction to be more compatible with the statutory prescription than that advanced by Calfin.

Calfin also attacks the additional penalty imposed by the Amended Final Order denying her privileges of the grounds. Rule 7E^401(12), Florida Administrative Code, declares:

Whenever the penalty of expulsion is prescribed in these Rules, it shall be construed to mean unconditional exclusion and disqualification from any participation, either directly or indirectly, in the privileges and uses of the course and grounds of the track license.

None of the rules allegedly violated prescribe expulsion as a penalty and neither the statute nor the rules otherwise permit denial of privileges as a penalty for violation of the rules. Thus, the Division exceeded its authority in imposing this penalty-

Accordingly, we modify the penalty imposed upon Calfin to revocation of her license and a $400.00 fine. The additional penalty imposed by the Division is unauthorized and may not remain in effect.

The final order is in all other respects affirmed.

AFFIRMED IN PART: MODIFIED IN PART.

DOWNEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph GRAVINA, Appellant, v. STATE of Florida, Appellee.
    No. 80-280.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Kirouac v. State, 371 So.2d 201 (Fla.2d DCA 1979).

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    Jimmy L. DENT, Appellant, v. STATE of Florida, Appellee.
    No. 80-482.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction of unauthorized temporary use of a motor vehicle. Defendant asserts the evidence was insufficient to show that the offense occurred at the particular time contained in a statement of particulars filed by the State. We conclude, after a review of the briefs and transcripts furnished in support of this appeal, that the evidence concerning defendant’s unauthorized use and possession of the car was admissible and adequately supports his conviction. We further conclude that the' defendant was not misled or embarrassed in the preparation or presentation of his defense by any asserted variance between the proof at trial and the statement of particulars. Barber v. State, 243 So.2d 2 (Fla. 2d DCA 1971). Defendant’s other arguments on appeal are without merit and the judgment below is, therefore, affirmed.

AFFIRMED.

ANSTEAD, MOORE and BERANEK, JJ., concur.

      . We do not adopt the argument of the State regarding the effect of an amended information filed in this matter. The amendment did not change the date of the alleged offense and the statement of particulars remained binding upon the State.


text:
    Eddie Dean BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-556.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Richard L. Jorandby, Public Defender, and Rendell Brown of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED on authority of Bennett v. State, 316 So.2d 41 (Fla.1975).

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    Anthony Claude TORY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1083.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals asserting his sentence was not in accord with his negotiated plea. The record clearly shows that the plea was to a maximum of three years in prison. The sentence stated orally in open court was two years in prison followed by two years’ probation, but the written judgment and sentence imposed a sentence of three years in prison followed by two years’ probation.

In view of this inconsistency, the sentence is vacated and the matter is remanded for resentencing. Appellant contends he could not be sentenced to probation and prison for any combined term over three years. We do not rule on this issue as it was never presented to the trial court.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

DOWNEY and BERANEK, JJ., and RUTTER, ROBERT WILLIAM, Jr., Associate Judge, concur.


text:
    Stephanie Ann KNIEBES, Appellant, v. STATE of Florida, Appellee.
    No. 80-1103.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.

      Alan Jay Braver man of Law Offices of Alan Jay Braverman, P. A., Fort Lauder-dale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant, convicted of trafficking in cocaine in violation of Section 893.135 Fla. Stat. (1979), appeals on several grounds, two of which we believe have merit.

The record discloses a factual pattern that might well sustain the conclusion that a conflict of interest may have prevented appellant from receiving effective assistance of counsel at the trial level. It would be inappropriate for this Court to substitute its factual finding for that of the trial court. Nonetheless, we believe the trial court should be given the opportunity to revisit this issue in light of the holding of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) with reference to privately retained counsel.

We also observe that appellant’s situation falls within the mandatory ambit of the youthful offender statute, § 958.04(2)(a)(b), Florida Statutes (1979). See Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980).

We therefore reverse and remand with instructions that the trial court consider the allegations concerning counsel’s conflict of interest, in view of Cuyler v. Sullivan, supra, and further, if appellant is to be sentenced, it is to be as a youthful offender pursuant to the statute.

REVERSED AND REMANDED WITH INSTRUCTIONS.

GLICKSTEIN, J., and LEONARD RIVKIND, Associate Judge, concur.


author: ORFINGER, Judge.

text:
    Edward Stewart CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. MM-461/T1-37.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.

      James B. Gibson, Public Defender, Dayto-na Beach, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

A jury convicted appellant of first degree murder and use of a firearm in the commission of a felony, and he was duly sentenced to a term of imprisonment for life for the murder charge and five years for the firearm charge. He alleges error in the conviction. We affirm.

Appellant’s first point questions the propriety of the appointment by the court of four psychiatrists to examine the appellant. Appellant’s court appointed attorney filed a notice of intention to rely upon the defense of insanity and at the same time filed a motion requesting the court to appoint physicians to examine appellant’s mental condition. In response to that motion, the court appointed two Daytona Beach psychiatrists, Dr. Rotstein and Dr. Davis, as disinterested, qualified experts to conduct an examination of appellant to determine his mental condition at the time of the alleged offense and subsequent thereto. Dr. Rotstein filed his report on January 23, 1978, finding that appellant was rational and competent at the time of the examination, but that he was incompetent at the time of the commission of the alleged offense. Dr. Davis’ report dated January 30, 1978 said that appellant was competent and rational at the time of the examination, but would not venture an opinion as to appellant’s competence at the time of the alleged offense, because certain information was lacking. Dr. Davis concluded that he could only guess as to appellant’s mental state at the time of the alleged offense.

A pre-trial conference was held on February 6, 1978, at which time the trial court entered another order reciting the statutory amendments relating to the affirmative defense of insanity and appointing two additional psychiatrists in Gainesville, Florida, as disinterested, qualified experts to determine appellant’s mental condition at the time of the alleged offense and subsequent thereto. Subsequent to the entry of this last order and before the two examinations requested by it were conducted, the Florida Supreme Court held that chapter 77-312, Sec. 1, was unconstitutional. Appellant thereupon moved the court to terminate any further psychological examinations, but the court ordered the additional examinations to be conducted and also ordered Dr. Davis to reexamine appellant. The Gaines-ville physicians both filed reports finding appellant to be competent at the time of the alleged offense and at the time of the examination. Dr. Davis reported again that he could not determine what appellant’s mental condition was at the time of the offense.

Upon stipulation of counsel for the State and for appellant, the trial court considered the reports of the four physicians and determined that appellant was competent to stand trial. At the trial, the four physicians testified; Dr. Davis and Dr. Rotstein for appellant, and the other two for the State.

Florida Rule of Criminal Procedure 3.210(e)(3) says in pertinent part:

[u]pon motion of the prosecution, the court may cause the defendant to be examined by one or more disinterested qualified experts, not exceeding three, appointed by the court, at such time and place as may be designated in the order of the court, as to the sanity or insanity of the defendant at the time of the commission of the alleged offense and subsequent thereto.

We find nothing in the rule, nor have we been cited to any authority, to support appellant’s position that the court had no discretion to appoint the third and fourth psychiatrist under the circumstances of this case. Even if the rule intends that at no time can more than three psychiatrists serve the court as disinterested qualified experts, (a point which we need not and do not decide) when the court here appointed the last two physicians, only one of the first pair had been able to render an opinion on appellant’s mental condition at the time of the homicide, so his appointment of two additional physicians was within his discretion under the rule.

Experts appointed by the court to determine mental competency are neither prosecution nor defense witnesses, but neutral experts working for the court, and their opinions are subject to testing for truth and reliability by both prosecution and defense. Parkin v. State, 238 So.2d 817 (Fla.1970). There is no showing here that the appointment of the additional physicians was for any purpose other than securing adequate information concerning appellant’s mental condition, in the light of the serious charges against him.

Under the circumstances of this case, the appointment of the additional physicians is not per se error, and no prejudice is shown. The question of appellant’s sanity at the time of the homicide was thus a question for the jury.

We find no error in the giving of Standard Jury Instruction 2.11(c) on intoxication. Appellant’s statement of particulars in support of his insanity defense stated that he intended to show that he was suffering from a psychotic depression and psychotic depressive reactions. There was much testimony by the appellant that he had been drinking heavily the week before the shooting and that he had been drinking the evening of the shooting. Defendant’s objection to the instruction was properly overruled.

Appellant’s remaining points are without merit. Finding no error, the judgment of conviction is affirmed.

AFFIRMED.

SHARP, J., and WALKER, GRISSIM, H., Associate Judge, concur.

      . Rule 3.210(e), Fla.R.Crim.P. (1977).

      . Chapter 77-312(1), Laws of Florida (1977), which provided for a bifurcated trial when insanity was raised as a defense and which purported to repeal Fla.R.Crim.P. 3.210.

      . State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978), which also held that Rule 3.210 remained in effect.

      . See Thompson v. State, 389 So.2d 197 (Fla.1980) where the Supreme Court notes without comment that appellant was examined by four court appointed psychiatrists.


text:
    Dennis Charles JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1454/T4-152.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

Appellant was convicted by a jury of one count of burglary and one count of grand larceny. He contends that the trial court erred in not granting his motion for judgment of acquittal made at the close of the State’s case and renewed at the close of all the evidence. We agree and reverse.

The information charged that appellant had committed the offenses between June 18, 1977 and June 21, 1977. In response to a motion, the State filed an amended statement of particulars specifying that the offenses occurred “within five hours either side of 1:00 a. m. on June 21, 1977, in Titusville, Brevard County, Florida.”

At the trial, another participant in the crime testified for the State that he, appellant and others had burglarized the store in question twice late one Saturday night and early Sunday morning, between June 19 and June 21, 1977. He could not otherwise remember when the burglary took place. The owner of the store had been away, and he did not discover the burglary until he returned on June 21. The trial court took judicial notice that June 19, 1977 was Sunday, June 20 was Monday and June 21 was Tuesday. Appellant’s motion for judgment of acquittal on the ground that the State had not proved that a crime was committed at the time specified in the statement of particulars, was denied. Appellant claims error in denial.

This case falls squarely within the purview of State v. Beamon, 298 So.2d 376 (Fla.1974). In that case, although the Supreme Court was deciding the applicability of the theory of double jeopardy, to arrive at its conclusion it was necessary to discuss the effect of the variance between the statement of particulars and the proof. In Beamon, the defendant went to trial on a charge of robbery allegedly occurring on November 26, 1972. Thereafter, the State filed a bill of particulars alleging that the robbery occurred on November 24, 1972. The victim testified that she was robbed on November 26, 1972 and upon defendant’s motion, the trial court entered a judgment of acquittal. The State then filed a second information, charging defendant with robbery on November 26, 1972 and he filed a motion to dismiss on the ground that he had been previously placed in jeopardy for the same offense. In deciding that jeopardy had not attached, the Supreme Court said:

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular information; the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved. . .. Also, the fact that the date charged in the first information in this case was Nov. 26, 1972, does not control over a specification in the bill of particulars under that Information that the offense was committed on Nov. 24, 1972. Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.... Thus it is clear that the bill of particulars on the first Information narrowed the date of the alleged offense to the date of November 24, 1972, and respondent could not therefore be convicted under that Information, as so limited, of an offense occurring on Nov. 26, 1972, and the able trial judge was imminently [sic] correct in entering an acquittal on the trial under the first Information.
Despite the specification of an exact date in an Information, and where no other date is set forth in a bill of particulars, a different time may be shown at the trial, and a conviction may be had if the proof shows the offense to have been committed at any time prior to the accusatory date in the Information (within the bar of the statute of limitations), where there is no bill of particulars specifying a different date.... (Citations omitted).

Id. at 378, 379.

Those cases which hold that a variance between the date alleged in a bill of particulars and the date proved is not considered fatal to a conviction, are pre-Beamon and while not referred to in that case, appear to have been impliedly overruled. Those cases which have addressed the subject since Beamon, follow its principles .

It can be argued that Beamon does not preclude the filing of another information bearing the correct date and a subsequent trial thereon, that appellant did not attempt to interpose an alibi defense which might make the variance in time material and that the time, effort and expense involved in retrying appellant is not warranted where no prejudice is shown, but we are without authority to change a rule of law adopted by the Supreme Court. A correct statement of particulars would have obviated this problem.

In the light of this opinion, we need not consider the other points raised by appellant. The judgment of acquittal should have been granted for the crimes charged by the statement of particulars, and this cause is remanded to the trial court with directions to proceed in accordance herewith.

REVERSED and REMANDED.

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

      . Thus, the only testimony on the subject established the date of the crimes as late evening on June 18 or early morning of June 19.

      . E. g., Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972); Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972).

      . R. C. B. v. State, 374 So.2d 1168 (Fla. 2d DCA 1979). In Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979), the court approved an amendment to the statement of particulars before any evidence was submitted. Crowell v. State, 238 So.2d 690 (Fla. 3d DCA 1970), approved in Beamon, precludes such amendment after the evidence is submitted. Cf. Turner v. State, 376 So.2d 429 (Fla. 1st DCA 1979), where the court disapproved an amendment to an information on the morning of trial which expanded the time within which the crime allegedly occurred. Howlett was cited with approval in Donaldson v. State, 356 So.2d 351 (Fla. 1st DCA), cert. den. 362 So.2d 1052 (1978) on the point that not every variance between allegation and proof is fatal, but there is no reference to a bill of particulars in Donaldson, and the Supreme Court in Beamon agrees that the variance is not necessarily fatal where no bill of particulars is filed.


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

text:
    MAC MILLAN-BLOEDEL, LTD., Appellant, v. Franklin Ernie CANADA and Fuller Lumber Company, Inc., Appellees.
    No. 79-1472/T4-638.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    J. Scott Kirk, Orlando, for appellant.
    Sidney H. Parrish, Winter Park, for ap-pellees.
   SHARP, Judge.

Mac Millan-Bloedel, Ltd., a Canadian business organization, appeals the lower court’s determination that it had personal jurisdiction over Mac Millan pursuant to section 48.181, Florida Statutes (1979), or section 48.182, Florida Statutes (1973). The plaintiff, a carpenter, filed suit in 1977 for injuries he sustained when a 2" X 10' joist or scaffold manufactured by Mac Mil-lan failed or gave way under him in 1972 because of its alleged “dry-rotted” condition. We affirm the lower court on the basis of section 48.182.

The pleadings and record at the time of the hearing on jurisdiction established that Mac Millan was a non-resident Canadian corporation, based in Canada, and that it engaged in extensive international commerce. It manufactured lumber products and shipped them throughout North America and abroad. Its wholly owned subsidiary, Mac Millan-Bloedel, Inc. (also a defendant in this case) did business in Florida, but the trial court concluded it was a separate entity from appellant, and it was not “controlled” by appellant. Mac Millan had no office or agents in Florida. The offending piece of lumber was sold by the appellant F.O.B. place of shipment outside Florida, to its subsidiary. The subsidiary took delivery of the lumber in Jacksonville and stored it in its warehouse. From there, the lumber passed into the stream of intrastate commerce where it ultimately (allegedly) caused the plaintiff’s injuries in Florida.

Section 48.193, Florida Statutes (1979), apparently gives the best basis for asserting personal jurisdiction over the appellant in this case. It provides:

(1) Any person .. . who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of injury either:
2 Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.
(3) Only causes of action arising from acts or omissions enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section....

The appellant manufactured the allegedly defective lumber; its products were being used in Florida in the ordinary course of business; and the defective lumber allegedly caused the plaintiff’s injury in Florida. However, it is well established that section 48.193 applies only to causes of action which accrued after its effective date: July 1973. Since the plaintiff was injured in 1972, section 48.193 is not applicable.

Section 48.181 has no time application problems in this case, but it requires a finding that the non-resident party sought to be served was engaging in business in Florida, or was making intrastate sales directly in Florida or through jobbers it “controlled.” This statute provides:

(1) The acceptance by any person or persons . . . who are residents of any other state or country, ... of the privilege . . . to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons ... of the secretary of state of the state as their agent on whom all process in any action ... arising out of any transaction or operation connected with or incidental to the business or business venture may be served. . . .
(3) Any person ... which sells ... by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in this state shall be conclusively presumed to be operating, conducting, engaging in or carrying on a business venture in this state.

Interstate or international sales to persons in Florida, no matter how numerous and ongoing, do not establish engaging in business or a business venture in Florida for purposes of section 48.181, unless the nonresident is shown to have “control” or to have exercised “control” over the person selling the goods in Florida. Mac Millan’s doing business through its Florida subsidiary is the sole element established in this record on that point. That is an insufficient basis to support a finding of “doing business” or “control” for purposes of section 48.181.

We finally come to section 48.182, Florida Statutes (repealed 1973). It provided:

Any nonresident person ... who ... commits a wrongful act outside the state which causes injury, loss, or damage to persons or property within this state may be personally served in any action or proceeding against the nonresident arising from any such act.... If a nonresident expects or should reasonably expect the act to have consequences in this state or any state or nation and derives substantial revenue from interstate or international commerce ...

The record established that Mac Millan manufactured and sold a defective product (rotten lumber); the sale was in international commerce; injury to persons through the use of the product was foreseeable, in Florida or any other place the lumber was used; the lumber’s defect caused the plaintiff’s injury in Florida; and the appellant was shown, through unchallenged allegations in the complaint and through SEC reports and depositions, to have derived most of its revenues over the years from “international” commerce. Section 48.182 is applicable to give Florida personal jurisdiction over the appellant. Youngblood v. Citrus Association of N.Y. Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973).

Although not raised by the parties to this appeal, the application of section 48.182 to this case may appear anomalous because this statute was repealed effective July 1973 and the suit was not filed until 1977. However this result is necessary to avoid creating a span of time between the effective dates of section 48.182 and section 48.-193, when no “Long-Arm” statute would be in effect. The Legislature repealed section 48.182 effective on the date section 48.193 took effect, obviously intending there would be no such “gap” period. However, judicial interpretation has limited section 48.193 to causes accruing after its effective date. Griffis v. J. C. Penney Company, Inc. To avoid this “gap” we conclude section 48.182 applies to all causes of action accruing while it was in effect.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. The only connection appellant had with Florida was that it sold lumber to a company in Florida. It exercised no control over or recommendations as to the use of that lumber. Lumber, by its very nature, varies in quality and strength. This is recognized by the industry and lumber is graded according to quality. The lesser grades possess more defects. Many applications in construction do not require great structural strength and a piece that would not be suitable for the support of a load-bearing structure might be suitable for another function.

One of the elements which must be shown to bring a defendant within section 48.182, Florida Statutes, is that the defendant committed a wrongful act. Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc., 276 So.2d 505 (Fla. 4th DCA 1973). The sale of lumber of an inferior grade is not a wrongful act absent a showing that it was misrepresented.

The utilization of inferior grades of lumber in proper applications should be encouraged in the interests of conservation and economy. To require a company to come to Florida to defend under the facts of this case seems to me an unreasonable and unrealistic extension of the “long-arm” concept. Therefore, I dissent.

      . This interlocutory appeal was taken pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(C)(i).

      . AB CTC v. Morejon, 324 So.2d 625 (Fla.1975); Griffis v. J. C. Penney Co., Inc., 333 So.2d 503 (Fla. 1st DCA 1976). See Gordon v. John Deere Co., 264 So.2d 419 (Fla.1972).

      . American Baseball Cap, Inc. v. Duzinski, 359 So.2d 483 (Fla. 1st DCA 1978).

      . Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975); Cooke-Waite Laboratories, Inc. v. Napier, 166 So.2d 675 (Fla. 2d DCA 1964).

        . Volkswagenwerk v. McCurdy, 340 So.2d 544 (Fla. 1st DCA 1976).


text:
    Michael Kelley DILLOW, Appellant, v. STATE of Florida, Appellee.
    No. 79-182.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Edward R. Kirkland, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

The judgment and sentence herein are affirmed without prejudice to any appropriate post-conviction relief which may be sought by appellant in the trial court in regard to the issue of restitution. See Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980); Pope v. State, 368 So.2d 676 (Fla. 1st DCA 1979).

AFFIRMED.

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


text:
    Rodney J. PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-186.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    James B. Gibson, Public Defender, and Terrence M. White, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 6, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the judgment and sentence is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    GENE’S GULF, INC., etc. et al., Appellants, v. WALNUT EQUIPMENT LEASING CO., INC., etc., Appellee.
    No. 79-325.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    B. J. Heller of Poole & Heller, P. A., Orlando, for appellants.
    Francis E. Pierce, Jr., Orlando, for appel-lee.
   ORFINGER, Judge.

The final judgment appealed from awarded appellee money damages for breach of a lease agreement, and included in the award was a 25% collection fee, the allowance of which appellant contends was error. We agree and reverse on that point.

The lease provided that upon default, in addition to other remedies available to lessor,

lessee shall remain and be liable for the total balance of the unpaid rent therefor and all such rent shall become due and payable forthwith and, lessee authorizes the Prothonotary or any attorney of any court of record, whenever lessee is in default hereunder to appear for and confess judgment as often as necessary against lessee (1) in any action to recover said property and (2) for all sums payable by lessee hereunder with 25% added as a collection fee (emphasis added).

Appellants’ objection to the awarding of the 25% collection fee is based upon two grounds: (1) that the collection fee pertains to the confession of judgment provision, which is invalid under Florida law and (2) the collection fee is unenforceable as a penalty.

In Florida, confession of judgment provisions are invalid, although contracts are not necessarily invalid in their entirety because of the inclusion of such provision where the clause is severable. Hawke v. Broward National Bank of Fort Lauderdale, 220 So.2d 678 (Fla.4th DCA 1969). Here, the provision is severable, and appel-lee did not rely on it in obtaining the judgment.

However, it is clear that the “25% collection fee” is part and parcel of the confession of judgment clause, and must fall with it. Because of our interpretation of the lease agreement, we need not decide whether this collection fee is unenforceable as a penalty.

The final judgment is reversed as to the award of $1,623.00 as a collection fee, but is otherwise affirmed and the cause is remanded to the trial court for correction of the final judgment in accordance herewith.

AFFIRMED in part and REVERSED in part.

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

      . § 55.05, Fla.Stat. (1979).


text:
    Eric Tyrone SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 79-368.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Following a hearing on charges of violation of probation, appellant was found guilty and his probation was extended. He contends that the evidence was insufficient to support the charges. We agree and reverse.

The charges can be summarized as follows:

(a)failure to submit report due June 5, 1979;
(b) failure to make payments toward cost of supervision or payments toward fee of court appointed attorney;
(c) failure to report a change of address which took place on June 14, 1979, with his present whereabouts unknown to the probation officer.

Only two witnesses testified at the hearing, appellant and his probation supervisor. With respect to the delinquent report due June 5, 1979, the probation supervisor had directed appellant to personally deliver the report to the probation office in Ocoee. Appellant lived in Orlando. It is undisputed that appellant completed the report in time because his probation supervisor saw the completed report on appellant’s dresser when he went to look for him about a week later. His testimony that he had no transportation, thus could not deliver the report was also not disputed. To support a revocation of probation, the violation must be willful as well as substantial. Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978). Where a defendant makes reasonable efforts to comply with probation conditions, his failure to do so may not be willful. Gardner v. State, 365 So.2d 1053 (Fla. 4th DCA 1978). As will be seen, slightly more than one week later, the matter of delivery of the report was out of appellant’s hands.

Condition (3) of the standard probation order prohibits a change of residence or a move out of the county of a defendant’s residence without first procuring the consent of the probation supervisor. On June 13, 1979, appellant was sentenced by the federal court in Orlando to a six-month prison term for an offense committed prior to the crime for which he was placed on probation here. He reported to the Orange County Jail on June 15th and was held there until transferred to a federal prison on June 29, 1979. Since the “change of residence” under these circumstances was involuntary and by virtue of a court order, seeking his probation supervisor’s consent would have been a useless act. Kotowski v. State, 344 So.2d 602 (Fla. 3d DCA 1977). The State contends, however, that appellant nevertheless had a duty to advise the supervisor of his whereabouts, citing Watkins v. State, 368 So.2d 363 (Fla. 2d DCA 1979). The facts of this case, however, are distinguishable from Watkins in that here, there is unrefuted evidence that the probation supervisor had been present at appellant’s arraignment in federal court and had been advised by appellant’s attorney that appellant faced a potential six — month prison term. Thus the failure to specifically advise his supervisor of his whereabouts does not appear to be a willful or substantial attempt to violate his probation.

On the charges of failure to pay, the only testimony in the record is that appellant received one check for $38.00 from employment with a CETA program, that other money which he had earned in that program had not been paid to him and that he never had the money to make the payments. Thus, there is no evidence at all to show that appellant had the ability to make the delinquent payments, and evidence of such ability to essential to support a revocation of probation for failure to make required payments. Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980), Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). The burden is upon the State to show that the probationer was able to make such payments as may have been required by the judgment. Holt, at 1134.

The order finding that appellant violated conditions 1, 2, 3, 8 and 10 of his probation order is reversed, and the case is remanded with directions to restore appellant to his original term of probation.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


text:
    George Morrell ENYEART, Appellant, v. STATE of Florida, Appellee.
    No. 80-56.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief Appellate Division, Asst. Public Defender, and Carla Miller, 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.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 28, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the judgment and sentence is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge.

text:
    Robert B. DOTSON and Bobbie Jean Dotson, his wife, Appellants, v. Frank M. WOLFE, Appellee.
    No. 80-159.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    John M. Starling of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellants.
    Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso, Mosley, Scott & Kabboord, P. A., Cocoa Beach, for appellee.
   COBB, Judge.

This case involves the issue of whether certain language used in a deed created an easement or a license.

In the early 1960’s Mr. and Mrs. Bogoson owned a parcel of land that fronted on U.S. Highway 1 in Brevard County. The parcel of land was undeveloped except for a gas station on the northeast corner of the lot and a house which sat behind the gas station. Mrs. Bogoson filed a suit for dissolution of the marriage. In 1964, a settlement was reached between the Bogosons in which the wife received the northern half of the parcel of land, including the gas station, but excluding the lot with the house on it and an adjacent vacant lot. The husband received the southern half of the parcel of land, as well as the lot with house on it and the adjacent vacant lot. The wife quit-claimed the lot with the house on it and the adjacent vacant lot to the husband. The quit-claim deeds stated that they were conveying the described lots:

[Tjogether with a way for ingress and egress from said property to U.S. Highway 1, along the south side thereof, for so long as other suitable similar way of egress and ingress is not available.

In 1966, the ex-wife subsequently conveyed her parcel of land to her attorney, Frank Wolfe, who is the appellee in the case at hand. In 1970, Ethel Mylius (the second wife of Mr. Bogoson) conveyed the lot with the house on it to the Dotsons, who are the appellants in the case at hand. The deed stated that it was conveying the described property:

[Tjogether with fifty foot wide road right-of-way for ingress and egress along the south side of the property to U.S. Highway No. 1.

In 1972, Dorothy Bogoson (the daughter of Mr. Bogoson), conveyed the adjacent vacant lot to the Dotsons. That deed stated that it was conveying the described property:

[Tjogether with a way for ingress and egress from said property to U.S. Highway 1, along the south side thereof, for so long as other suitable similar way of egress and ingress is nob available.

The titles to both of the pieces of property purchased by the Dotsons were insured by Lawyers Title Guaranty Co. The Dotsons notified Lawyers Title that they wanted the title to their property cleared up as to what right they had over Wolfe’s property. This litigation ensued.

The Dotsons filed a three-count complaint against Wolfe. Count I of the complaint sought an express easement of fifty feet in width, along the southern boundary of the Dotsons’ property, running across Wolfe’s property to U.S. Highway 1. Count II sought an express easement of an indeterminate width at the same location. Count III sought an implied grant of way of necessity. The trial court dismissed Count III, and then found that the language in question created an irrevocable license rather than an easement and entered a final summary judgment in favor of Wolfe on Counts I and II. The Dotsons are appealing both of these orders.

With regard to the dismissal of the count alleging an implied grant of way of necessity, the trial court was correct in dismissing that count since copies of the deeds to the Dotsons’ property that were attached to the complaint show that the Dotsons had a right to cross Wolfe’s property for ingress and egress to their property and, therefore, the Dotsons had no right to an implied grant of way of necessity. See Health Application Systems, Inc. v. Hartford Life & Acc. Ins. Co., 381 So.2d 294 (Fla. 1st DCA 1980).

We now turn to consideration of the final summary judgment. The parties have apparently agreed upon the location of this way for ingress and egress based on the existence of an roadway running across Wolfe’s property and abutting the southerly line of the Dotsons’ property. However, the parties are contesting the width of this way. Based on an unrecorded plat of a proposed subdivision, which was attached to the Bogosons’ dissolution settlement, the Dotsons are claiming that this way is fifty feet in width. On the other hand, Wolfe contends that the way is limited to the width necessary for the passage of the Dot-sons’ motor vehicles. We agree with Wolfe on the width issue.

The distinction between an easement and a license is often so metaphysical, subtle, and shadowy as to elude analysis. Nunnelly v. Iron Co., 94 Tenn. 397, 29 S.W. 361, 28 L.R.A. 421 (1895). But there are certain fundamental principles underlying most cases which enable courts to distinguish an easement from a license when construed in the light of the surrounding circumstances. Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926).

A license is distinguished from an easement in that a license is merely a personal right to use the property of another for a specific purpose, is not an interest in land and, therefore, may not be assigned or conveyed. Burdine v. Sewell, supra; Jenkins v. Lykes, 19 Fla. 148, 45 Am.R. 19 (1882); The Florida Bar, Florida Real Property Practice I § 12.14 (1965); 1A Thompson on Real Property §§ 216, 217 (1980). As a personal right, a license usually may be revoked at will by the licensor. The Florida Bar, Florida Real Property Practice I § 12.14 (1965); 1 Boyer, Florida Real Estate Transactions § 23.08 (1979).

There is a split among the jurisdictions as to whether a license may ever become irrevocable. Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am.Dec. 497 (1826); 1A Thompson on Real Property § 225 (1980). Florida has sided with those jurisdictions which have allowed a license to become irrevocable to escape an inequitable situation which might be created by the requirements of the statute of frauds, or where money has been spent in reliance on a license. Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759 (1933); Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98 (1914); The Florida Bar, Florida Real Property Practice I § 12.14 (1965).

An easement is chiefly distinguished from a license in that an easement implies an interest in the land, which is ordinarily created by a grant in a deed, and is often permanent. Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949); Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926); 20 Fla.Jur.2d Easements § 3 (1980). However, an easement does not have to be permanent, but rather an easement may be created which ends upon the happening of a condition. Scott v. Walden, 140 Tex. 31, 165 S.W.2d 449, 154 A.L.R. 1 (1942); 2 Thompson on Real Property § 440 (1980).

The language in the quit-claim deeds from ex-wife Bogoson to ex-husband Bogoson created such an easement subject to termination upon the happening of a condition subsequent. This is the interest that the later deeds to the Dotsons also conveyed.

We therefore affirm the dismissal of the claim for implied grant of way of necessity. We affirm the trial court’s final summary judgment with regard to Count I. We reverse that portion of the final summary judgment which interpreted the language on the deeds as an irrevocable license, rather than an easement subject to a condition and, therefore, denied Count II. We remand to the trial court for such further proceedings as will enable it to define the width of the easement. See Hurt v. Virginia Heights Assoc., Inc., 244 So.2d 483 (Fla. 4th DCA 1971); Kingdon v. Walker, 156 So.2d 208 (Fla.2d DCA 1963).

AFFIRMED in part; REVERSED in part; and remanded.

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


text:
    Robert Russell OLIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-177.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1973); Zicca v. State, 232 So.2d 414 (Fla. 3d DCA), cert. denied, 238 So.2d 430 (Fla.1970).

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


text:
    STATE of Florida, Appellant, v. Louis C. HUNT, Jr., Appellee.
    No. 80-230.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. State Atty., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellee.
   COBB, Judge.

Hunt was charged by an information with grand theft in the second degree of a motor vehicle in violation of section 812.014, Florida Statutes (1979). He moved to suppress his statements and any physical evidence on the ground that the initial stop that led to his arrest was illegal. The trial court granted that motion to suppress, and it is that order that the state is seeking to have reviewed on this appeal. The issue raised is whether the arresting police officer was justified in initiating a stop and identification check of Hunt.

At the hearing on the motion to suppress, the only witness was Officer Northcutt, who was the arresting officer. Officer Northcutt testified that as he was cruising through the parking lot of an apartment complex at approximately 5:11 A.M., he saw Hunt inside a white-over-red Mercury automobile with the door open. About a month before, the officer had taken a breaking and entering report of a white-over — red automobile at the same complex in about the same parking space. The officer thought that this white-over-red automobile might be the same as the automobile involved in the prior breaking and entering, and the officer did not recognize Hunt as the owner of that vehicle. When Hunt saw the officer in his cruiser, Hunt got out of the car and started walking away. It was at this time that the officer stopped Hunt for questioning which led to the arrest.

Pursuant to section 901.151, Florida Statutes (1979), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may initiate a stop of a person based upon a founded suspicion. A founded suspicion is something less than probable cause, but something more than a mere suspicion. It is a reasonable suspicion that requires further investigation. Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974). It is a suspicion which has some factual foundation in the surrounding circumstances observed by the officer, when those situations are interpreted in light of the officer’s knowledge. State v. Spurling, 385 So.2d 672 (Fla. 2d DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

In this ease, due to the color, size, and location of the automobile, Officer Northcutt reasonably believed that the car was the same one that had been burglarized about one month previously, and he reasonably suspected that somebody other than the owner of the car was in it at 5:11 A.M. The police officer was justified in stopping Hunt and making an investigation check.

The trial court’s order granting the motion to suppress is reversed, and this ease is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: DAUKSCH, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. L. V. LAWRENCE, as father and next friend of Kathryn Lawrence, a minor, Appellee.
    No. 80-636.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Joe Dykes and Edwin P. Sanders of Lan-dis, Graham, French, Husfeld, Sherman & Ford, P. A., Deland, for appellant.
    David A. Monaco and J. Lester Kaney of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for ap-pellee.
   DAUKSCH, Chief Judge.

AFFIRMED on the authority of Day v. United States Fidelity and Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980). Contra, McLellan v. State Farm Mut. Auto. Ins. Co., 366 So.2d 811 (Fla. 4th DCA 1979).

ORFINGER and COWART, JJ., concur.


author: DANAHY, Judge. OTT, Acting Chief Judge,

text:
    DEPARTMENT OF REVENUE of the State of Florida and Gerald A. Lewis, as Comptroller of the State of Florida, Appellants, v. PARKER BANANA COMPANY, a Florida Corporation, Appellee.
    No. 79-581.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellants.
    J. Rex Farrior, Jr., Stephen A. Crane, and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   DANAHY, Judge.

For purposes of the tax imposed on corporations and other artificial entities by the Florida Income Tax Code, tax base net income is determined in accordance with an apportionment formula which reflects the legislative view of how much of the net income of a domestic or foreign corporation should fairly be taxed by Florida. Among other things, the formula requires a determination of the total sales of the taxpayer in this state during the taxable year or period. That determination is the subject of the dispute in this case.

Appellee Parker Banana Company (Parker Banana) is a domestic corporation which imports bananas to Tampa in refrigerated ships and sells them to wholesalers, some of whom are from out of state. Bananas sold to purchasers from out of state are transported to points outside Florida. All of Parker Banana’s purchasers arrange their own pickup and transportation. Parker Banana conveys the boxes of bananas by conveyer belt from the ship’s hold directly into refrigerated trucks sent by or on behalf of the purchasers. Some purchasers send trucks owned or rented by them. Others use common carriers or contract carriers.

The Florida apportionment statute provides that “sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale” (emphasis ours). In computing its Florida corporate income tax, Parker Banana treated all sales to purchasers from outside Florida as sales not in this state. Appellants (herein collectively called “the Department”) took the position that only those sales to out-of-state purchasers who used common carriers to pick up their bananas could properly be characterized as sales not in this state for purposes of the apportionment formula. The Department assessed a deficiency against Parker Banana accordingly, which Parker Banana paid under protest. In this suit for refund, the trial judge ruled that the Department’s position was incorrect and entered a final summary judgment for Parker Banana. We affirm.

In the phrase “property delivered or shipped to a purchaser within this state,” to what do the words “within this state” refer? That is the simple question which confronts us, and neither party has cited to us any authority which specifically addresses that question. Our own extensive research has produced none.

The Department reaches its position in this case by applying the words “within this state” to the word “delivered.” The Department contends that those out-of-state purchasers from Parker Banana who arrange to pick up their bananas other than by common carrier take delivery as a matter of law at dockside in Tampa. Therefore, says the Department, in each such case there is a delivery within this state and the sale is within this state.

We disagree with the Department’s construction of the statute. In our view, the words “within this state” must refer to the word “purchaser” if the legislative intent is observed. Under our construction of the apportionment statute, a sale is in this state if the sale is to a Florida purchaser and that, in turn, depends on the destination of the goods sold. It matters not whether delivery or shipment occurs in Florida or out of Florida. Our interpretation of the statute accords with the legislative intent to assign to Florida for tax purposes a portion of net income attributable to sales by the taxpayer in the Florida market as determined by the destination of the goods. A. England, Florida Corporate Income Taxation: Background, Scope and Analysis, in An Introduction to Florida Corporate Income Taxation 4, 14 (1972).

The Department’s interpretation of the apportionment statute ignores basic rules of sentence construction and would have the effect of undermining the legislative intent. Surprisingly, the Department argues that the words “within this state” apply to the word “delivered” but not to the word “shipped.” It does not treat as sales in Florida those sales by Parker Banana to out-of-state purchasers who arrange for shipment by common carrier. We appreciate the probable reason why the Department insists on such a tortured construction of the statute. Since the statute applies to out-of-state sellers as well as to domestic sellers, applying the words “within this state” to both the word “delivered” and the word “shipped” would result in excluding from Florida taxing jurisdiction a huge portion of sales by otherwise taxable out-of-state sellers to Florida purchasers. Only those in which either delivery or shipment occurs in Florida would be includable. But the Department cannot have its cake and eat it too; we see no way in the world that the statute can logically or grammatically be construed so that the words “within this state” apply only to the word “delivered”.

Examples come readily to mind as well of situations in which there can be a sale by a Florida seller to a Florida purchaser with Florida the destination of the goods, yet neither delivery nor shipment occurs in this state. If, for example, Parker Banana imported bananas to New York by refrigerated ships and sold those bananas to Florida purchasers who took delivery at dockside in New York for transportation to Florida, those sales should be considered as sales in this state for purposes of the apportionment statute.

Our position is supported by the Department’s own regulations, which refer to the term “purchaser within this state.” Fla. Adm.Code Rule 12C-1.15(4)(d)4. The examples in the regulations demonstrate that if the destination of goods sold is Florida, then Florida is considered the consumer state-the market in which the sale is made- and the purchaser, regardless of business location or residence, is the equivalent of a Florida purchaser.

Thus under the destination test, a purchaser from outside this state does not become a “purchaser within this state” merely by sending a representative to pick up the goods in Florida; if, however, the destination of the goods is a point within Florida, then the purchaser is within this state.

The Department has cited to us, in support of its position, the decision in Coulter Electronics, Inc. v. Department of Revenue, 365 So.2d 806 (Fla. 1st DCA 1978). In that case our sister court held that certain inter-company sales were not sales. In reaching that conclusion, the court said that “the inter-company transactions also lack ‘delivery,’ the factor under Florida Statute Section 214.71 which determines whether a sale of tangible personal property has occurred in Florida.” The facts in the Coulter case are clearly distinguishable from the facts here involved, and the court’s remark concerning place of delivery was unnecessary to its holding. Therefore, we do not consider the Coulter decision as authority for the proposition urged by the Department in this case.

In fact, the language adopted by Florida in the sales portion of the apportionment statute was chosen specifically because it establishes the “destination” test for determining whether sales are in this state for corporate income tax purposes. England, supra, at 14. The language of the statute is taken from Section 16(a) of the Uniform Division of Income for Tax Purposes Act (UDITPA). Florida did not, however, adopt all the provisions of UDITPA and so we are struggling with language taken out of context. Under UDITPA a corporation apportions net income to a state for income tax purposes only if it has income from business activity which is taxable both within and without the state. UDITPA Sec. 2. That may not be the case with Parker Banana, but Florida law mandates apportionment whether or not a corporation is engaged in a truly multistate business. § 220.15, Fla.Stat. (1979).

UDITPA also contains a “throwback rule” which apportions sales to the state of origin notwithstanding that they are made to an out-of-state purchaser if the taxpayer is not taxable in the state of the purchaser. UDITPA Sec. 16(b). A taxpayer in Florida which follows the practice of delivering goods in this state to representatives of out-of-state purchasers for transportation out of state might not be subject to income taxation in the purchasers’ states by reason of those sales because of the jurisdictional barrier. Had Florida adopted the throwback rule, the Department might not have felt constrained to take the contorted position it has taken in this case in order to capture Parker Banana’s sales to out-of-state purchasers.

Our failure to find any case interpreting the meaning of “within this state” as used in the Florida statute probably results from the fact that the issue simply does not arise where apportionment is permitted only to a truly multistate business or the throwback rule is adopted. The statutory language barrier faced by the Department in this case may very well be unique to Florida and perhaps is a problem that should be addressed by the legislature. We have no choice but to rule that the apportionment statute does not support the Department’s position.

AFFIRMED.

RYDER, J., concurs.

OTT, Acting C. J., dissents with opinion.

OTT, Acting Chief Judge,

dissenting.

I dissent.

Appellee, a corporation subject to Florida income tax, imported bananas into Florida and sold them as they were unloaded from the boat. All purchasers, regardless of where they were from, were required to take delivery at the dock. This case primarily involves some of the out-of-state buyers who took delivery in either their own vehicles or those of commercial carriers with which they had contracted. What happened to those bananas after that is not clearly established, but as I see it that is not really material. We are dealing with nonresident purchasers, and I know of no way in which the final destination of the bananas could ever be reliably established. Ap-pellee convinced the trial court that such sales were not subject to Florida’s corporate income tax, and the majority opinion affirms that result.

The controlling statute seems to me to clearly subject such sales to taxation. In essence, the legislature has declared that sales made in Florida by a corporate seller are taxable and, conversely, sales made outside Florida are not taxable. The critical question in each case, then, is whether a particular sale was made in or out of the state. The pertinent sections of the Florida Corporate Income Tax Law are sections 220.11(1), 220.12(1), 220.15 and 214.71(3), Florida Statutes. The latter section reads, in part, as amended retroactively in 1979, as follows:

(3) The sales factor is a fraction the numerator of which is the total sales of the taxpayer in this state during the taxable year or period and the denominator of which is the total sales of the taxpayer everywhere during the taxable year or period.
(a) 1. Sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale. (Emphasis supplied.)

First, it should be noted that the statute very clearly directs that each sale be viewed from the position of the Florida taxpayer, not the purchaser. All “sales of the taxpayer in this state” obviously means all sales the taxpayer has accomplished, finished, terminated, or completed in this state. I agree that Florida chose a “destination test” for determining whether a sale is made within or outside this state, but we must bear in mind that the state is interested in sales only insofar as the income of the seller is concerned. Once goods reach the hands of the buyer, what the buyer does or plans to do with them thereafter is of no consequence. So far as the seller was concerned in the instant case, the bananas had one and only one destination-the buyer’s truck on the Tampa wharf.

In dealing with the issue to be resolved here, it is essential that we also keep in mind that Florida imposes a tax on the income of not just Florida-based corporations, but upon all corporations “conducting business, deriving income or existing within the state.” Section 220.02, Florida Statutes (1971). The statute under review, section 214.71, merely implements that general intent by specifying the criteria for ascertaining the amount of income a corporation derives from business conducted in Florida. In my opinion, the simple, easy-to-understand-and-apply test selected by the legislature is that a seller will be deemed to derive income from the state in which the buyer takes physical possession of the goods. That is the destination, the point at which the goods pass from the seller to the buyer.

The majority applies the destination test from the standpoint of the buyer. In their view, the delivery of goods to the purchaser at some point within this state is not a Florida sale unless the goods are to enter the “Florida market.” In other words, the majority looks to the ultimate destination intended by the purchaser. Thus, they assert that it makes no difference whether a Florida corporate seller ships the goods to an out-of-state buyer; or an out-of-state buyer comes into Florida, purchases merchandise, takes physical possession of it and personally removes it from the state; or an out-of-state seller ships goods into Florida to a Florida purchaser who then resells or reships the goods to an out-of-state destination; in each instance, according to the majority theory, it would be an out-of-state sale not subject to the Florida tax.

That result is said to be compelled by the statutory definition of an in-state sale as one in which the goods are “delivered or shipped to a purchaser in this state.” That language doesn’t mean, says the majority, a delivery or shipment to a purchaser then present within the physical boundaries of this state, but instead means a purchaser who intends to retain those goods in Florida. In my opinion, the statute is in no way susceptible to such a strained construction.

It is Hornbook law that in construing a statute each part of it must be given effect, and words used in the statute should be given their, ordinary, commonly understood meaning. 30 Fla.Jur. 241, 281. It seems to me that the reasoning of the majority cannot be reconciled with those rules.

The statute clearly contemplates two distinctly separate situations, (1) where any corporate seller delivers goods to any purchaser who is then in this state and (2) where any seller ships goods to any purchaser at a location within this state. There surely can be no mistaking the plain, unambiguous meaning of the first situation. The use of the indefinite article “a” before the word “purchaser,” in preference to the definite “the,” was undoubtedly purely fortuitous. I read no significance whatsoever into that choice, and therefore cannot accept the majority’s theory that “a purchaser within this state” refers to something other than the geographical location of the purchaser when the goods are delivered to him.

I do, however, attach significant meaning to the words “or shipped.” To give effect to that language, we must first recognize that whenever a seller delivers goods to the buyer at any point in Florida, that sale is expressly covered by the statute. By adding the words “or shipped,” the legislature obviously intended to expand the category of Florida sales. It is equally obvious that the shipments referred to are not those shipments which are made by the seller in its own or hired private conveyance, because (as just noted) goods delivered by the seller to a purchaser within this state are already covered by the statute. Nor could they be shipments made by the purchaser in its own or hired private conveyance, because such goods would have been delivered to the purchaser already and thus could not qualify as “property . . . shipped to a purchaser within this state.” By the process of elimination, then, the shipments specifically mentioned in the statute must be those in which goods have been delivered by the seller to a public (common) carrier for transport and delivery to the purchaser at some point in Florida.

Under the statutory scheme, then, the location of the goods being sold is immaterial, and so is the location of the seller. It is the location of the buyer when he takes possession of the goods that is of prime importance. If that occurs in Florida, the seller must pay the Florida tax on profits accruing from that sale, assuming the seller is a corporation and otherwise subject to Florida’s taxing jurisdiction.

The majority finds fatal inconsistency in the fact that, under the agreed statement of facts, the Department does not regard as in-state those sales in which appellant delivers goods in Florida to a common carrier for shipment and delivery to the purchaser at some out-of-state location. The Department has not advised us in so many words why it treats shipments by common carrier differently from shipments by a purchaser’s private, contract carrier. However, I think it would be totally inconsistent for the Department to adopt any other policy. If my interpretation of the statute is sound, shipments of goods into this state by common carrier are classified as Florida sales, subjecting the selling corporation to Florida income tax. It necessarily follows that shipments by common carrier to a destination outside this state would not be Florida sales. But the short answer to this feature of Department policy is that it is not before us, and merely clouds the real issue presented by the facts of this case. The majority opinion is bottomed on a sweeping theory that even if an out-of-state buyer personally enters this state and purchases merchandise which he personally then exports outside Florida, that is not a sale in this state for the purpose of taxing the seller. It is with that theory that I find fault, and not with what the Department might or might not do in other situations.

Under the majority’s theory, classifying each sale according to the subjective intentions of the purchaser, I think we face an entirely unmanageable situation. As a practical matter, Florida probably does not have and could not afford the massive manpower necessary to ascertain the “ultimate destination” of all goods first sold in Florida and later sold and resold or shipped and reshipped elsewhere in today’s complex marketplaces.

The rule established by the majority opens a veritable “Pandora’s box” of games for corporate taxpayers to play-games in which the State of Florida will consistently be the big loser. For instance, there is absolutely nothing in the Florida Income Tax Code (Florida Statutes 220.01 et seq.) which would warrant disparate treatment of wholesale and retail merchants, or sanction any distinction between those non-residents who enter this state for the primary purpose of purchasing large quantities of goods and those tourists who buy here only incidentally. Under the rule of the majority opinion, no corporate retailer doing business in Florida can be taxed on income derived -from sales to non-residents who intend to take their purchases back home with them. The entire corporate income tax program will devolve into an honor system, with no possibility of strict enforcement by the Department. I question the feasibility of such a program, and I doubt that the legislature ever intended such an anomalous result. Policing and enforcement should be largely-if not totally-accomplished by an audit and examination of the seller’s (taxpayer’s) books and records.

I would reverse the judgment of the trial court and deny the refund to appellee.

      . Ch. 220, Fla.Stat. (1979).

      . § 214.71, Fla.Stat. (1979).

      . The jurisdictional barrier is the nexus required by the federal constitution and federal law for state taxation of the income of a corporation conducting only an interstate business within the state. Without a “throwback rule” such as that provided in UDITPA, the jurisdictional barrier can produce “nowhere income.” Corrigan, Interstate Corporate Income Taxation-Recent Revolutions and a Modern Response, 29 Vand.L.Rev. 423, 429 (1976).

      . It would seem that the tax law, like so many other laws governing multi-state operators, requires a reasonable nexus between the seller and the taxing state. Mere presence of the seller in that state, however, does not per se supply the necessary contact. A policy that sales will be allocated to the state in which the goods are actually delivered into the possession of the buyer seems simple, reasonable and enforceable.


author: OTT, Judge.

text:
    Ralph PALMERTON, Appellant, v. James B. EVANS and Sonya Robinette Evans, his wife, Appellees.
    No. 80-213.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.

      Harry E. King, of King, Kaylor & Thorn-hill, P. A., Winter Haven, for appellant.
    Paul Ritter, of Ritter, Joiner & McKib-ben, Winter Haven, for appellees.
   OTT, Judge.

In 1977 appellant signed a contract prepared by appellees, in which he undertook to construct six duplexes for them in Winter Haven. Appellees paid him $10,000 upon execution of the agreement. In 1978 they filed this action to recover their money with interest, alleging that they had received nothing and that the contract was so vague and ambiguous as to be unenforceable. Appellant cross complained for damages incurred as a result of appellees’ refusal to honor their agreement after he had commenced construction of the duplexes. His duly verified cross-complaint included an allegation that appellees had agreed that the $10,000 down payment would be nonrefundable.

On appellees’ motion the court below entered summary judgment in their favor for $10,000, plus $1,500 interest and costs of suit.

We are of the opinion that the verified cross-complaint raised genuine issues of fact that could materially affect appellees’ right to recover their payment. Whether or not the contract could be specifically performed is not necessarily determinative of that question, particularly when appel-lees were primarily, at least, responsible for the inept drafting of that document. Under the circumstances, it was error to enter summary judgment.

The summary judgment is therefore reversed and the case remanded to the court below for further proceedings consistent herewith.

HOBSON, Acting C. J., and CAMPBELL, J., concur.


author: BASKIN, Judge.

text:
    TIME INSURANCE COMPANY, Appellant, v. Ernest S. ENGLISH, Appellee.
    No. 80-83.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.

      Magill & Reid and Kevin P. O’Connor, Miami, for appellant.
    Manners, Amoon, Whatley & Tucker and James W. Whatley, Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Whether federal worker’s compensation benefits compensate for loss of time or for disability is the underlying issue in this appeal. Time Insurance Company contends the terms are interchangeable, arguing that worker’s compensation benefits paid to ap-pellee English constituted payments for loss of time and were therefore includable in the Relation of Earnings to Insurance Clause of the disability insurance policy contract between Time and English. Under Time’s interpretation, English’s policy would yield a smaller payment. Time also contends it was entitled to include its payment in calculating the amount due under the policy. We find no error in the trial court’s rulings to the contrary, and we affirm the award to English of the amount Time failed to pay.

English’s claim was predicated upon his medical disqualification from his position as a Federal Aviation Administration Air Traffic Controller. The insurance policy permitted Time to reduce its payment to English in an amount proportionate to other loss of time insurance payments received under coverage for the same loss calculated against the amount of English’s former monthly salary. Following Time’s reduction in the amount of the payment to English, English filed suit to recover $547 instead of the $300.85 he was receiving, and to exclude the Time policy payment from the computations.

The Relation of Earnings to Insurance Clause tracks the language of Section 627.-624, Florida Statutes (1973):

If the total monthly amount of loss of time benefits promised for the same loss under all valid loss of time coverage upon the Insured, whether payable on a weekly or monthly basis, shall exceed the monthly earnings of the Insured at the time disability commenced or his average monthly earnings for the period of two years immediately preceding a disability for which claim is made, whichever is the greater, the Company will be liable only for such proportionate amount of such benefits under this policy as the amount of such monthly earnings or such average monthly earnings of the Insured bears to the total amount of monthly benefits for the same loss under all such coverage upon the Insured at the time such disability commences and for the return of such part of the premiums paid during such two years as shall exceed the pro rata amount of the premiums for the benefits actually paid hereunder; but this shall not operate to reduce the total monthly amount of benefits payable under all such coverage upon the Insured below the sum of two hundred dollars or the sum of monthly benefits specified in such coverages, whichever is the lesser, nor shall it operate to reduce benefits other than those payable for loss of time. ‘ Valid loss of time coverage’ as used herein shall include all loss of time coverage provided by governmental agencies or by organizations subject to regulation by the insurance law or the insurance authorities of any of the 50 states of the United States of America, the District of Columbia, or any of the provinces of Canada. (Emphasis added).

Federal worker’s compensation benefits derive from the Federal Employees Compensation Act, 5 U.S.C. § 8101 (1966). The purpose of the worker’s compensation act is to provide payments for disability or death. 5 U.S.C. § 8102 (1966). Just as Veterans Administration disability compensation does not constitute a benefit for loss of time from' employment and cannot be offset by an insurer to reduce its benefits, Gibson v. Connecticut General Life Insurance Co., 145 Ga.App. 799, 245 S.E.2d 49 (1978), so worker’s compensation benefits do not constitute a benefit for loss of time. Cf. Russell v. Bankers Life Co., 46 Cal.App.3d 405, 120 Cal.Rptr. 627 (1975).

Insurance policy provisions, especially exclusionary clauses, are to be construed most favorably for the insured and against the insurer. Tropical Park, Inc. v. United States Fidelity & Guaranty Co., 357 So.2d 253 (Fla. 3d DCA 1978).

We agree with the trial court that disability and loss of time are separate bases for coverage under the worker’s compensation act. Worker’s compensation payments are excluded disability benefits, not loss of time benefits includable in calculating earnings under the insurance clause.

The question concerning whether Time’s own insurance policy should have been included in the Relation of Earnings to Insurance Clause should have been litigated in the previous court suit between the parties (Case no. 77-17090, Circuit Court, Dade County) concerning the same insurance clause. The issue is res judicata. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Golden View Condominium, Inc. v. City of Hallandale, 279 So.2d 323 (Fla. 4th DCA 1973).

For these reasons, we affirm the decision of the trial court.


text:
    CITY OF NORTH MIAMI, Florida et al., Appellants, v. Ruth S. BOYD, Appellee.
    No. 80-106.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Willard K. Splittstoesser, City Atty., for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Upon review of the appeal and cross-appeal, we affirm the summary judgment on liability.


text:
    Billy Franklin SEYMORE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-629, 80-1278.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Bethel v. State, 391 So.2d 331 (Fla.3d DCA 1980); Williamson v. State, 388 So.2d 1345 (Fla.3d DCA 1980); Martin v. State, 243 So.2d 189 (Fla. 4th DCA), cert. denied, 247 So.2d 63 (Fla.1971).


author: BARKDULL, Judge.

text:
    Bobbi FUSINSKI, d/b/a Q.T. Corp., Paint & Body & Frame Service, Appellant, v. Robert B. ROBERTSON, Appellee.
    No. 80-1232.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Bobbi Fusinski, in pro per.
    Roy W. Allman and Matthew J. Schaefer, Fort Lauderdale, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   BARKDULL, Judge.

The appellee, as plaintiff in the trial court, brought an action against the appellant-defendant, seeking recovery for injuries occasioned when he was on the appellant’s premises as a business invitee and was bitten by a dog.

The case was tried non-jury. The trial judge found for the plaintiff, found that the defendant was the owner of the dog, and that the defendant had posted signs in accordance with Florida Statutes. We reverse.

The trial court having found that the signs were posted in accordance with the Statutes, and in fact the record indicates that there were numerous signs on the premises, we find that no liability should have been imposed against the defendant in the trial court because of the provisions of Section 767.04, Florida Statutes (1979), which reads in part as follows:

“. . . nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog’.”

Also see: Romfh v. Berman, 56 So.2d 127 (Fla.1951); Carroll v. Moxley, 241 So.2d 681 (Fla.1970); Flick v. Malino, 356 So.2d 904 (Fla.1st DCA 1978); Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla.3d DCA 1979).

Therefore, the final judgment here under review be and the same is hereby reversed.

Reversed.


text:
    Michael Jonathan GILLIS, Petitioner, v. Prudence Anne Clare GILLIS, Respondent.
    No. 80-1655.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Paul, Landy, Beiley & Harper and Lawrence R. Metsch, Miami, for petitioner.
    Joel Hirschhorn and Harry Solomon, Miami, for respondent.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Michael Gillis and Prudence Gillis (petitioner and respondent, respectively) are subjects and residents of the United Kingdom. Mrs. Gillis instituted divorce proceedings in England, which resulted in a judgment of divorce. Her request for child support was not ruled upon at that time and is presently pending in England. In the interim, the husband came to Dade County where he presently resides on a non-immigrant visa. Thereupon, the wife, through Miami counsel, filed a petition in the trial court in Dade County seeking child support. The husband moved to dismiss the petition, alleging that under the exclusive jurisdiction doctrine the English court, having prior jurisdiction of the child support question, has rendered the Dade County court without jurisdiction of the cause. The motion came on for hearing, at which time the wife moved to abate pending the outcome of the action in England. Thereupon the trial court deferred ruling on the motion to dismiss and abated the action pending determination by the English court. When the cause was not determined in about four months, the wife’s attorney moved for hearing on the deferred motion to dismiss. After hearing thereon, the trial court denied the motion to dismiss and directed the husband to respond to the petition for child support. That order is the subject of this petition for writ of certiora-ri.

We do not agree with the husband’s contention that the trial court does not have jurisdiction of this cause. Ciociola v. Cioci ola, 302 So.2d 462 (Fla. 3d DCA 1974). However, we must quash that portion of the trial court’s order which directed the husband to respond to the petition for child support. Clearly, the English court had prior jurisdiction and the question of child support is presently pending therein. To avoid a duplication of the proceedings in both England and Florida, the trial court should have exercised its sound discretion and stayed the Florida proceedings pending determination of the question in England. See: New Plan Realty Trust v. The Towers Apartments, Inc., 350 So.2d 99 (Fla. 1st DCA 1977). By failing to do so, under the facts of the instant case, the trial court abused its discretion.

Therefore, we hereby quash the order under review and remand the cause to the trial court, with directions to stay the proceedings in the trial court pending completion of Case No. 15586 of 1975, Family Division, in the High Court of Justice of the United Kingdom, relative to child support.

Quashed and remanded, with directions.


text:
    John BRYANT, Appellant, v. Ethel BRYANT, Appellee.
    No. 78-2610.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Cynthia S. Prettyman of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Earl L. Maxwell, Jr., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980) and Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Raymond CAROLAN, Appellee.
    No. 79-743.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 11, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellant.
    Marsha G. Madorsky, of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   HURLEY, Judge.

This is a speedy trial case in which the state appeals an order granting defendant’s motion for discharge. We reverse.

On December 7, 1978, the date set for defendant’s trial, an associate of defense counsel appeared before the court and represented that defense counsel was in the midst of an on-going trial. Also, he informed the court that since the filing of the information in this case, defendant, as a result of other charges, had been incarcerated in the state prison system outside of Broward County and thus, defense counsel had been unable to communicate with the defendant for the past sixty days. Associate defense counsel then moved for, and obtained, a continuance.

The case was reset for trial on March 13, 1979, but prior thereto, the defense moved for discharge on the ground that 180 days had expired since defendant was first taken into custody. Defense counsel argued, and the trial court agreed, that the December 7th continuance should have been charged to the state since it was the state’s inaction of failing to return the defendant to Bro-ward County which primarily necessitated the continuance. We disagree.

Without question, the right to assistance of counsel includes the right to consult with counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). If an attorney incurs difficulty in this regard, he should promptly bring the matter to the attention of the trial court for appropriate relief. In the case at bar, however, trial counsel failed to take any action. Though the record reflects motions to dismiss and for discovery, we find no defense request that the defendant be returned to Broward County so that he might assist counsel in the preparation of his defense. We further note that there is no suggestion in the record that defendant’s incarceration at a place outside of Broward County was purposefully undertaken by the state to frustrate or impede the preparation of the defense. Given these facts, we hold that it was error to charge the December 7th defense continuance to the state.

In State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), the court held that when a defendant moves for and is granted a continuance, the 180-day limitation set forth in Rule 3.191(a)(1) is no longer applicable. Defendant, however, must be brought to trial within a reasonable time. See also, Butterworth v. Fluellen, 389 So.2d 968 (Fla., 1980). Since the December 7th continuance was granted at the behest of the defense, it had the effect of waiving the 180-day time limitation. Furthermore, the March 13th trial date fulfilled the “reasonable time” requirement of Butler, supra. Thus, we hold that it was error to grant defendant’s motion for discharge and accordingly, we reverse the order of discharge and remand the cause for further proceedings consistent with this opinion.

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

      . Defendant’s motion for discharge was heard and granted by a successor to the judge who granted defendant’s motion for a continuance on December 7, 1978.


text:
    Emanuel GERSTEIN, Appellant, v. George W. HEPWORTH, Appellee.
    No. 79-1186.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    James Tuthill of Law Office of Ronald Sales, P.A., Palm Beach, for appellant.
    Richard H. M. Swann of Law Offices of Gaston, Snow & Eli Bartlett, Hall & Swann, Coral Gables, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order 1) granting a motion to set aside a stipulation, and 2) denying a motion to enforce said stipulation. A petition for certio-rari was filed by the appellant to review the same order which is the subject of this interlocutory appeal. Said petition for cer-tiorari was denied October 24, 1979.

Upon consideration of the record, we hold that the order in question is not subject to an interlocutory appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3). Accordingly, this court has no jurisdiction to review the order in question and this appeal is, therefore, dismissed.

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


text:
    Wilbur James WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1421.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Alan H. Schreiber, Public Defender, Fred Goldstein and Channing Brackey, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant, a juvenile, is challenging the validity of an order certifying him for trial as an adult and also claims error by the trial court in failing to classify him as a youthful offender pursuant to the terms of Section 958.04(2), Florida Statutes (Supp. 1978). We find no error in the order of certification. However, we agree with appellant that the provisions of Section 958.-04(2) are mandatory in' requiring that a defendant be classified as a youthful offender when it is shown that he meets the criteria set out therein. See Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980, opinion on rehearing filed October 27, 1980). In this case, the state has stipulated that appellant meets the criteria of Section 958.-04(2) but contends application of the statute is discretionary with the trial court. For the reasons set out in Goodson v. State, supra, we reject the state’s contention. Also see Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

Accordingly, the conviction of appellant is affirmed but the sentence is set aside and this cause is remanded for further proceedings consistent herewith.

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


text:
    Raymond HILLERY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1791.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Richard L. Jorandby, Public Defender, Cathleen Brady, Asst. Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Appellant, Raymond Hillery, was indicted for premeditated murder, robbery with a firearm and possession of a short barrelled shotgun. After trial, the jury found 'him guilty as charged. The trial court adjudged appellant guilty on all counts and sentenced him to life imprisonment for first-degree murder, and fifteen years for possession of a short barrelled shotgun, the sentences to run consecutively. The court withheld sentence on the charge of robbery with a firearm. On appeal, appellant questions the propriety of being adjudged guilty of both first-degree murder and robbery with a firearm. Under the facts of the case, we hold that the dual convictions are improper.

While some of the evidence at trial would support a finding of premeditation, the prosecutor made the following statements during closing argument:

We did not intend to prove premeditated murder in this case. If we were required to prove premeditated murder, then we wouldn’t have even gotten this far with the case. You would not even be considering the case at this point.
# jfc :jc # %
The premeditated murder, we’d have to have shown that this man went into that store intending to kill William Widland. The proof has not been that he went into that store intending to kill William Wid-land. We have not proved premeditated murder. We are dealing with the other part of first degree murder, felony murder.

By these remarks, the state effectively waived the theory of premeditated first-degree murder. Nonetheless, it has long been held that the state may proceed on a theory of felony murder even though the indictment is framed in terms of premeditated murder. Knight v. State, 338 So.2d 201 (Fla.1976). This is what the state elected to do in the case at bar. That decision, however carries with it a significant limitation.

In State v. Pinder, 375 So.2d 836, 839 (Fla.1979), the court announced this rule:

. . . [WJhere premeditated murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in section 782.04(1), we hold that the defendant may not be convicted and punished for both the felony murder and the underlying felony.

Applying Pinder to the case at bar, we hold that appellant’s conviction for robbery with a firearm cannot stand. Since we find that appellant’s other points on appeal lack merit, we further hold that the convictions for first-degree murder and possession of a short barrelled shotgun should be affirmed. Therefore the cause is remanded to the trial court with instructions to vacate appellant’s conviction for robbery with a firearm.

AFFIRMED IN PART and REMANDED WITH INSTRUCTIONS.

ANSTEAD, J., and WARREN, LAMAR, Associate Judge, concur.

      . Though the indictment charged premeditated murder, the verdict form reflected a finding of “guilty of first degree murder.” We regard the variance as a distinction without a difference.