author: BOYD, Justice. ALDERMAN, Justice, concurring specialty-

text:
    Daniel W. GLUESENKAMP, Appellant, v. STATE of Florida, Appellee. Hubert Dwight MASSENGALE et al., Appellants, v. STATE of Florida, Appellee. Joseph Francis MOUW et al., Appellants, v. STATE of Florida, Appellee.
    Nos. 57124, 56928 and 57131.
    Supreme Court of Florida.
    Oct. 16, 1980.
    Rehearing Denied Jan. 14, 1981.

      William R. Slaughter, II of Slaughter & Slaughter, Live Oak, and James K. Jenkins, Atlanta, for Gluesenkamp, appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee in No. 57124.
    Larry G. Turner of Turner & Morris, Gainesville, for Massengale and Kring, appellants.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee in Nos. 56928 and 57131.
    David Roth of Cone, Owen, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for Mouw and Hartwig, appellants.
   BOYD, Justice.

These consolidated cases are before the Court on appeal from judgments rendered by the Circuit Court of the Third Judicial Circuit, in and for Hamilton County. In rendering the judgments the circuit court passed upon the constitutionality of section 570.15, Florida Statutes (1977) and (Supp. 1978). Therefore, we have jurisdiction of the appeals. Art. V, § 3(b)(1), Fla.Const.

In case no. 57,124, Dan W. Gluesenkamp was charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams, both being offenses prohibited by section 893.13, Florida Statutes (1977). After pleading not guilty, the appellant moved to dismiss the information and to suppress evidence. Thereby he challenged both the constitutionality of section 570.15, Florida Statutes (1977), and the legality of the search performed after a highway stop executed pursuant to that statute. After the court denied his motions to dismiss and to suppress evidence, the appellant changed his plea to nolo contendere, specifically reserving the right to appeal these two rulings. The court then adjudicated him guilty and imposed sentence.

In case no. 56,928, Hubert Dwight Mas-sengale and Mason Gregory Kring were jointly charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams. After pleading not guilty, the appellants moved to suppress evidence. In their motion they challenged the constitutionality of section 570.15, Florida Statutes (Supp.1978) and questioned the legality of a search performed after they were stopped on the highway pursuant to that section. The court denied the motion and the appellants entered a plea of nolo contendere, specifically reserving the right to appeal the court’s ruling on the motion. The court adjudicated the appellants guilty on both counts and sentenced them.

In case no. 57,131, Joseph Francis Mouw and Paul Marion Hartwig were jointly charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams. After pleading not guilty, the appellants moved to suppress evidence. The motion challenged the constitutionality of section 570.15, Florida Statutes (Supp.1978) and questioned the legality of a search performed after they were stopped on the highway pursuant to that section. The court denied the motion and the appellants entered a plea of nolo contendere, specifically reserving the right to appeal the court’s ruling on the motion. The court then adjudicated the appellants guilty on both counts and sentenced them.

In case no. 57,124, appellant Gluesenkamp and Debra Cain were traveling in the appellant’s van on January 15, 1978. With Ms. Cain at the wheel, they passed an agricultural inspection station without stopping. A Department of Agriculture inspection officer gave chase and pulled the van over. Cain got out of the vehicle to talk to the officer while the appellant drew together the curtain that separated the front seat from the cargo area of the van. Cain told the inspector they were hauling plants. The inspector asked to see the documents pertaining to the cargo of plants. Cain then went to the van, talked to the appellant, and returned to say that they were hauling potting soil. The inspection officer asked to look in the van and the appellant refused. The inspector then required Gluesenkamp and Cain to return in the van to the inspection station.

At the inspection station the appellant again refused to allow the inspector to look inside the van. The inspector arrested Cain for passing the station without first stopping for inspection, a misdemeanor proscribed by section 570.15(2), Florida Statutes (1977). The inspector contacted his supervisor and an hour later a deputy sheriff, an assistant state attorney, and an investigator arrived at the inspection station. They looked through the van’s windows and saw some burlap-colored bundles which they believed contained cannabis. The appellant surrendered a key to them after they told him they had probable cause for a search, did not need a warrant, and would break the van open if he refused. They found what they believed to be cannabis and the deputy arrested Gluesenkamp and Cain.

In case no. 56,928, appellants Massengale and Kring were traveling in a van on the night of July 20, 1978, and they proceeded past an agricultural inspection station. An inspection officer went after and stopped them, and asked them to return to the station. The inspector arrested Massengale for failing to stop for inspection in violation of section 570.15(2), Florida Statutes (Supp. 1978), and asked if he could look inside. Kring, the owner of the van, opened the door. The inspector saw several large bundles wrapped in burlap and plastic and smelled cannabis. He summoned a deputy sheriff who confirmed that the bundles contained cannabis and arrested the appellants.

In case no. 57,131, appellants Mouw and Hartwig, on June 18, 1978, passed an agricultural inspection station without stopping, were apprehended, and accompanied an inspection officer back to the station. There appellant Mouw opened the van. The inspector observed a large compartment built into the bed of the vehicle. He saw cannabis seeds on the floor and smelled cannabis. He arrested the appellants for violation of section 570.15, Florida Statutes (Supp.1978). Then the vehicle was searched pursuant to warrant and over three hundred pounds of cannabis were found in the compartment.

All of the appellants in these consolidated eases challenge the constitutionality of section 570.15, requiring all trucks to stop at agricultural inspection stations, and question the statute’s applicability to them on the ground that their vans are not trucks within the meaning of the statute. Each appellant argues that if the initial apprehensions pursuant to the statute were thus unlawful, the evidence subsequently seized is the fruit of such illegality and the convictions cannot stand.

Section 570.15, Florida Statutes (1977), provides:

570.15. Access to places of business and vehicles.-
(l)(a) The commissioner, assistant commissioner, directors, counsel, experts, chemists, agents, inspectors, road-guard inspection special officers, and other employees and officers of the department shall have full access at all reasonable hours to all:
1. Places of business;
2. Factories;
3. Farm buildings;
4. Carriages;
5. Railroad cars;
6. Trucks;
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicles bearing an RV license tag;
8. Truck and motor vehicle trailers;
9. Vessels; and
10. All records pertaining thereto; used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.
(c) Such departmental officers, employees, and road-guard inspection special officers may examine and open any package or container of any kind containing or believed to contain any article or product which may be transported, manufactured, sold, or exposed for sale in violation of the provisions of this chapter, the rules of the department, or the laws which the department enforces and may inspect the contents thereof and take therefrom samples for analysis.
(2) It shall be unlawful for any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.

Subsection (1) of the statute pertains to “access” in the context of the inspection functions of the Department of Agriculture. All of the enumerated places and conveyances to which “access” is provided for by subsection (l)(a), are qualified by the clause, “used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.” If a vehicle or place does not come within the meaning of this qualifying clause, then the departmental officials have no right of “access.”

Subsection (2) of the statute forbids “any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection.” In Stephenson v. Department of Agriculture and Consumer Services, 342 So.2d 60 (Fla.1976), we held that the requirement that all trucks stop at inspection stations is a valid exercise of the police power. The appellant argued there that to require his trucks to stop was irrational, since they never carried agricultural products. Thus we have held in effect that the state may require vehicles to stop even though the department may have no right of access to them under the statute. Trucks, truck trailers, and motor vehicle trailers are required to stop in order for the department officials to determine whether they have a right of access, and, if so, whether to exercise it.

The appellants argue that their vans are not trucks within the meaning of section 570.15(2), Florida Statutes (Supp.1978). “Truck” is not defined in section 570.15 or anywhere in chapter 570. But the Florida Uniform Traffic Control Law defines it as “Any motor vehicle designed, used, or maintained primarily for the transportation of property.” § 316.003, Fla.Stat. (1979); ch. 71-135, § 1, Laws of Fla. Chapter 320 of Florida Statutes, (1977), pertaining to drivers’ licenses, defines “truck” as including “any motor vehicle designed or used principally for carrying things other than passengers and includes a motor vehicle to which has been added a cabinet box, platform, rack, or other equipment for the purpose of carrying merchandise other than the person or effects of the passengers.” § 320.01(13), Fla.Stat. (1977). Section 323.01(12), Florida Statutes (1977), in the chapter pertaining to the regulation of motor carriers, provides: “ ‘Truck’ includes any self-propelled motor vehicle designed and used principally for carrying things other than passengers.”

Some vans are designed or maintained so as to have a cargo area to the rear of the front seats. Such vans, since they are designed specifically for transporting things rather than passengers, fall within the statutory definition of a truck. Other vans, however, do not have such a cargo area. Instead they are designed and maintained with several rows of seats for the sole purpose of carrying passengers, with the remaining space being designed to carry luggage or other personal effects of the passengers. Such vans are frequently used for bus, sightseeing, and shuttle service. And, of course, many of them are in use as ordinary, private, personal or family passenger vehicles. It is the design, maintenance, and actual use of a van-type vehicle that determine whether it is a truck. Vans designed to carry cargo are trucks and are required to stop at agricultural inspection stations. Vans designed as passenger vehicles are not. § 570.15 Fla.Stat. (Supp.1978); Eden v. State, 370 So.2d 826 (Fla. 1st DCA 1979). This distinction between cargo vehicles and passenger vehicles is also supported by an analysis of subsection (l)(a) of the statute. In listing the places and vehicles to which department officials are granted access, the statute draws a distinction between passenger automobiles and other motor, vehicles. The seventh enumerated clause of subsection (l)(a) provides for inspection access to:

Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicle bearing an RV license tag;

§ 570.15(l)(a)7., Fla.Stat. (1977). We conclude that in each of these cases, the appellants’ vans came within the meaning of the word “truck” as used in section 570.15(2) because they were not being used as passenger vehicles as contemplated by the statute. Therefore, they were required to stop.

The appellants also present the closely related argument that section 570.15(2), Florida Statutes (Supp.1978), denies them due process of law under the Florida and United States Constitutions because it is vague. They argue that since it is a penal statute, its vagueness renders it invalid on its face. Since the law is void, the appellants contend, their pursuit and apprehension for violation thereof were unlawful, and the evidence obtained in the course of the events which followed should have been suppressed.

A penal statute must be written in language sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of what conduct will render them liable to be prosecuted for its violation. State v. Ashcraft, 378 So.2d 284 (Fla.1979); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

As was stated above, section 570.-15(l)(a), in providing the conditions for agricultural inspection access, demonstrates a legislative purpose to distinguish between vehicles carrying goods and vehicles carrying passengers. Furthermore, the above-quoted statutory definitions of “truck” in chapters 316, 320, and 323, Florida Statutes (1977), provide authoritative definitions and indicate what is the generally accepted definition of the word “truck.”

We conclude that the offense defined in section 570.15(2) is not vaguely expressed by virtue of any indefiniteness of the term “truck.” Furthermore, ordinary persons of common intelligence can conclude from the statute that van-type vehicles that are designed, maintained, or used for the purpose of transporting goods rather than passengers are included in the meaning of the word “truck” as used in section 570.15(2).

Appellant Gluesenkamp argues that section 570.15, Florida Statutes (1977), violates principles of equal protection and equality of treatment under the United States and Florida Constitutions. He contends that the statute establishes a classification among motor vehicles using the highways and that some are required to stop at agricultural inspection stations while others are not. Subsection (2), as we have seen, creates a distinction between trucks, truck trailers, and motor vehicle trailers on the one hand and passenger vehicles on the other. The appellant also points out that at the time of his arrest, section 570.15(l)(a)7. provided for inspection access to “[m]otor vehicles, other than private passenger automobiles with no trailer to tow or any vehicle bearing an RV license tag; . . . . ” Motor vehicles exempted from the requirement of stopping for inspection, the appellant argues, are just as capable of carrying agricultural products within the regulatory jurisdiction of the department as are those vehicles that are required to stop. He argues that it is improper to exclude from the inspection requirement vehicles with license tags bearing the recreational vehicle designation, and points to evidence that it is a simple matter to obtain such a tag and to display it on a vehicle used for transporting goods.

As was discussed previously, section 570.-15(l)(a) provides for “access” by various department officials to all of the enumerated places and conveyances that are “used” in any phase of the agriculture industry. The seventh enumerated clause, therefore, provides for access to all “motor vehicles” used in agriculture. Clause 7. also exempts some of these: “private passenger automobiles with no trailer in tow [and] any vehicles bearing an RV license tag.” Private passenger automobiles with no trailer in tow and vehicles bearing “RV” license tags are therefore not among the conveyances to which the department is provided access, even when they are actually being used in some phase of the agriculture industry.

In deciding the merits of the appellant’s equal protection challenge, the first step is to determine what kind of standard to apply. It might be suggested that the differential treatment provided for by the statute impinges upon the fundamental “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . ” U.S.Const. amend. IV; art. I, § 12, Fla.Const. We think, however, that the required stop for inspection is not an unreasonable seizure. Stephenson v. Department of Agriculture and Consumer Services, 342 So.2d 60 (Fla.1976). And after a vehicle has stopped for inspection, a search may be conducted only under certain circumstances. Section 570.15(l)(b), Florida Statutes (1977), provides:

If such access be refused by the . . . driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.

The fourth amendment rights of users of the highways are protected under the statute. Compare Bagocus v. State, 359 So.2d 885 (Fla. 1st DCA 1978), with Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976).

Section 570.15 is a regulation of transportation and the use of the highways of the state. It is a valid exercise of the police power in furtherance of the public health and public economic good. Stephenson v. Department of Agriculture and Consumer Services, 342 So.2d 60 (Fla.1976). It does not impinge upon any fundamental rights.

The test to be applied in determining whether distinctions drawn by statutes such as this one are valid has been stated in innumerable cases, and was recently stated by the United States Court of Appeals for the Fifth Circuit: “In the absence of any suspect classification, invasion of fundamental interests, or invidious intent, all that the United States Constitution demands is that the classifications be rationally related to a legitimate state interest.” Jackson v. Marine Exploration Co., 583 F.2d 1336, 1346 (5th Cir. 1978). Under the Florida Constitution, the same principle applies. Ordinarily, the test is the “rational basis” test. See Landrau v. State, 365 So.2d 695 (Fla.1978).

Acts of the legislature are presumed valid, and the burden is on the challenger to show that a legislative classification violates principles of equality. A legislative classification will be upheld where the distinction drawn rests on some real and practical basis in relation to the purpose of the legislation. See, e. g., Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Hunter v. Flowers, 43 So.2d 435 (Fla.1949); State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367 (1915). If a legislative classification has such a reasonable basis, it does not violate equal protection simply because it is not drawn with perfect precision or because in its application some inequality results. Dandridge v. Williams, 397 U.S. 471, 474, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970); Lewis v. Mathis, 345 So.2d 1066 (Fla.1977). A regulation of economic matters embodying a classification based on practical convenience need not apply with mathematical uniformity if it has such a rational basis. See, e. g., Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932); Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155 (1932).

Applying the conventional standard, we hold that the distinction drawn by section 570.15 between vehicles designed, maintained, or used for the carriage of property on the one hand and passenger vehicles on the other is reasonably related to the Department of Agriculture’s inspection functions and does not violate the equal protection clause of the United States Constitution or the equality guaranty of the Florida Constitution.

As has been recited above, the searches in cases no. 56,928 and no. 57,131, following pursuit and apprehension for violation of section 570.15(2), were based on consent or a warrant. No issue of the voluntariness of the consent or of the existence of probable cause in either of those cases is before us. Appellant Gluesenkamp, on the other hand, did not consent to the search of his van, and properly preserved for appeal the question of the legality of the search.

Since the agricultural inspector and law enforcement officer were refused access to Gluesenkamp’s van and a search warrant was not obtained prior to conducting the search, the issue in this case is whether the search was properly conducted without a warrant pursuant to section 933.19, Florida Statutes (1977). § 570.15(l)(b), Florida Statutes (1977). Section 933.19 expressly adopts the holding of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), as the law of this State. In Carroll the defendants were convicted of transporting liquor in violation of the National Prohibition Act. The defendants and a companion had met with undercover federal prohibition agents in Grand Rapids. The agents said they were interested in buying some whiskey. The defendants said they would go get it and would be back shortly. They did not return, but their companion did and he explained that they would bring the whiskey the next day, which they never did. Three months later the federal agents saw the defendants in the same car they had the night the agents were supposed to buy whiskey from them. The agents pulled the defendants over and searched their car and found contraband liquor.

The defendants appealed their conviction, claiming their fourth amendment rights to be free from unreasonable search and seizure had been violated. The United States Supreme Court affirmed, holding that automobiles may be searched without a warrant when “there is known to a competent official, authorized to search, probable cause for believing that [the] vehicles are carrying contraband or illegal merchandise.” Id. at 154, 45 S.Ct. at 285. Because the agents had stopped the defendants on a highway connecting Grand Rapids and Detroit, a port of entry for illegal liquor, the Court held the agents had probable cause to suspect the defendants were transporting liquor. The Court emphasized that a different standard for searching an automobile than a house was justified because of the automobile’s mobility.

While appellant Gluesenkamp does not question that the law enforcement officials had probable cause to enter and search his van, he suggests in his brief that the officials’ actions in looking into his van from the outside constituted a search and that this preliminary search was not supported by probable cause. We believe, however, that the conduct of Cain and Gluesen-kamp in illegally proceeding past the inspection station, together with the contradictory statements they made to the inspection officer regarding their cargo, provided probable cause supporting the limited intrusion by the law enforcement officers who subsequently arrived, looked in the van’s windows, and saw the bundles which strongly suggested to them the presence of contraband.

Gluesenkamp contends that there were no exigent circumstances justifying a warrantless search since he and his companion had been detained and were not in a position to drive the van out of the jurisdiction. In short the argument is that Carroll does not apply where the automobile is no longer mobile.

This same argument was refuted by the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), where the police, upon probable cause but without a warrant, searched the defendant’s car parked outside the police station sometime after the defendant had been arrested. In holding that the police were not required to obtain a warrant, the Court stated:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.. . .

Id. at 51-52, 90 S.Ct. at 1981 (footnote omitted). See also Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Flynn v. State, 374 So.2d 1041 (Fla. 1st DCA 1979).

The facts in this case are even more compelling. Gluesenkamp, who owned the van, was not the one who was arrested for failing to stop at the inspection station since he was not the one driving at the time. Since he had the keys, he could have attempted to drive away at any time. There is no question that if he had, the police would have had the authority to stop him and search the van without a warrant. We see no reason why the police should be required to wait until an attempt is made to move a vehicle before they are allowed to search it.

The reason for requiring certain vehicles to stop at the inspection stations is to allow the inspectors a little time in which to decide if there is probable cause for searching. Once a determination is made, a search should either be made or the driver should be allowed to continue. The fourth amendment prohibits unreasonable seizures as well as unreasonable searches. Detaining a driver and his vehicle for an inordinate amount of time is an unreasonable seizure. Cf., Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979); Miller v. State, 368 So.2d 943 (Fla. 1st DCA 1979). If the inspector is unsure of whether sufficient probable cause exists, he may detain the vehicle and seek assistance as was done in this case.

The seizure in this case was not unreasonable. Although close to two hours had passed from the time the vehicle was stopped at the time it was searched, there was no evidence of undue delay. Most of the time was spent in contacting and waiting for a deputy sheriff and an assistant state attorney, men who were more qualified to decide if sufficient probable cause existed. They conducted the search soon after they determined probable cause existed. Since neither the search nor the seizure were unreasonable, Gluesenkamp’s fourth amendment rights were not violated.

The judgments of conviction are affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs specially with an opinion.

ALDERMAN, Justice, concurring specialty-

Although I concur with the majority opinion construing and upholding the constitutionality of section 570.15, Florida Statutes (1977), and defining trucks to include a certain type of van, I note that an inspector will not be able generally to discern from the outside appearance of a van passing on the highway whether it falls within the definition of truck and, consequently, is required to stop for inspection, or whether the van is excluded from the provisions of section 570.15 because it is a noncargo, passenger carrying van. Therefore, when a van passes an inspection station without stopping, the inspector has a right to pursue and to stop the van and to determine by looking inside whether it is a passenger van or a cargo van. If it is determined that the van is a cargo van, the inspector can request that it be opened for inspection. If, while looking into the van, the inspector sees contraband in plain view, he then has probable cause to seize the contraband even if the van is a passenger van and not a truck as defined by section 570.15.

      . Chapter 78-180, Laws of Florida, amended the seventh enumerated clause of section 570.-15(l)(a), effective June 8, 1978, to read:
      Motor vehicles, except private passenger automobiles with no trailer in tow, travel trailers, camping trailers, and motor homes as defined in s. 320.01(l)(b);
      § 570.15(l)(a)7., Fla.Stat. (Supp.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Involuntary Retirement of County Court Judge Jack COURTNEY.
    No. 59775.
    Supreme Court of Florida.
    Nov. 17, 1980.
    John S. Rawls, Gen. Counsel for The Florida Judicial Qualifications Commission, Tallahassee.
    Jack Courtney, in pro. per.
   PER CURIAM.

Pursuant to article V, section 12, of the Florida Constitution, the Judicial Qualifications Commission has filed its findings of fact that County Court Judge Jack Courtney of Okaloosa County “is presently suffering a disability seriously interfering with the performance of his duties which is permanent in nature.” The commission has recommended that this Court order the involuntary retirement of Judge Courtney because of a permanent physical disability.

In June of 1980, The Honorable M. C. Blanchard, chief judge of the First Judicial Circuit, submitted to the commission two Florida Retirement System physician’s reports, each physician finding Judge Courtney to be totally and permanently disabled. The commission subsequently ordered an independent physical examination of Judge Courtney, which confirmed the finding of total disability. We have determined that the commission’s proceedings complied with all requirements of the Florida Constitution and rules of the commission. Judge Courtney voluntarily submitted to the necessary physical examinations and has expressly waived the filing of an answer and an order to show cause allowing him an opportunity to respond to the findings and recommendation of the commission under Florida Rule of Appellate Procedure 9.520.

We approve the findings of fact and recommendation of the commission and, accordingly, The Honorable Jack Courtney is hereby retired from service as a county court judge on the date of the filing of this opinion, by reason of a physical disability of a permanent character which interferes with and prevents the performance of his duties, and by reason of this order of involuntary retirement there now exists a vacancy in the county court of Okaloosa County.

The filing of a petition for rehearing shall not alter the effective date of this order.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR. IN RE FLORIDA RULES OF APPELLATE PROCEDURE.
    No. 58984.
    Supreme Court of Florida.
    Nov. 26, 1980.
   PER CURIAM.

Pursuant to this Court’s directive in The Florida Bar In Re: Florida Rules of Appellate Procedure, 387 So.2d 920 (Fla.1980), the Appellate Rules Committee of The Florida Bar has submitted amendments to the Florida Rules of Appellate Procedure, and amended 1980 committee notes, for adoption by the Court in order to (1) conform existing appellate rules to the constitutional amendment adopted by the voters of Florida on March 11, 1980, and (2) to incorporate within the rules, with appropriate technical changes, the emergency appellate rules adopted by the Court immediately following the adoption of the constitutional proposal. See In re Emergency Amendments to Rules of Appellate Procedure, 381 So.2d 1370 (Fla.1980).

The Committee has also proposed for adoption an amendment to Rule 9.110(k), purporting to solve problems created by Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). Inasmuch as this proposal is outside the scope of the Court’s July 3 directive and has not had public review, the Court at this time declines to adopt the rule proposed.

The Court commends the committee for its fine work this year, and we adopt the following technical and conforming amendments to the Florida Rules of Appellate Procedure effective 12:01 a. m., January 1, 1981. The Court further directs publication of the 1980 committee notes which accompany these amendments.

The amendments now adopted affect only the rules which are here expressly treated. Amendments to the appellate rules which were adopted by the Court in January in the emergency proceeding, or in July as a result of the regular, four year cycle, and which are neither amended or reproduced here, shall remain in effect or become effective on January 1, 1981, as the case may be. As of January 1, 1981, therefore, the operative Florida Rules of Appellate Procedure will consist of the rules adopted in 1977, as amended by the Court in January 1980, in July 1980 and in this order.

It is so ordered.

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

1. Rule 9.030. Jurisdiction of Courts

(a) Jurisdiction of Supreme Court.

(1)Appeal Jurisdiction.

(A) The Supreme Court shall review, by appeal:

(i) final orders of courts imposing sentences of death;1

(ii) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.2

(B) When provided by general law, the Supreme Court shall review:

(1) by appeal final orders entered in proceedings for the validation of bonds or certificates of indebtedness;3

(ii) action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service.4

(2) Discretionary Jurisdiction. The discretionary jurisdiction of the Supreme Court may be sought to review:

(A)decisions of district courts of appeal that:5

(i) expressly declare valid a state statute;

(ii) expressly construe a provision of the state or federal constitution;

(iii) expressly affect a class of constitutional or state officers;

(iv) expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same point question of law;

(v) pass upon a question certified to be of great public importance;

(vi)are certified to be in direct conflict with decisions of other district courts of appeal;

(B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the Supreme Court, and:6

(i) to be of great public importance, or

(ii) to have a great effect on the proper administration of justice;

(C) questions of law certified by the Supreme Court of the United States or a United States Court of Appeals that are determinative of the cause of action and for which there is no controlling precedent of the Supreme Court of Florida.7

(3)Original Jurisdiction. The Supreme Court may issue writs of prohibition to lower courts and all writs necessary to the complete exercise of its jurisdiction: and may issue writs of mandamus and quo war-ranto to state officers and state agencies, and all writs-necessary to the complete exercise of- the Court’s jurisdiction. The Supreme Court or any justice may issue writs of habeas corpus returnable before the Supreme Court or any justice, a district court of appeal or any judge thereof, or any circuit judge.8

(b) Jurisdiction of District Courts of Appeal.

(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal:

(A) final orders of trial courts 1 2 not directly reviewable by the Supreme Court or a circuit court;

(B) non-final orders of lower--tribunals circuit courts as prescribed by Rule 9.130(a)(3);9

(C) administrative action when provided by general law.2

(2) Certiorari Jurisdiction.8 The certiorari jurisdiction of district courts of appeal may be sought to review:

(A) non-final orders of lower tribunals other than as prescribed by Rule 9.130;

(B) final orders of circuit courts acting in their review capacity.

(3) Original Jurisdiction.8 District courts of appeal may issue writs of mandamus, prohibition, quo warranto, common law cer-tiorari and all writs necessary to the complete exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof, or before any circuit judge within the territorial jurisdiction of the court.

(c) Jurisdiction of Circuit Courts.

(1) Appeal Jurisdiction. The circuit courts shall review, by appeal:

(A) final orders of lower tribunals as provided by general law;1 e^r2

(B) non-final orders of lower tribunals as prescribed by Rule 9.130(a)(3);9

(C) administrative action when provided by law.2

(2) Certiorari Jurisdiction.8 The certiora-ri jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by Rule 9.130.

(3) Original Jurisdiction.8 Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certiorari, habe-as corpus and all writs necessary to the complete exercise of the courts’ jurisdiction.

1. 9.140: Appeal Proceedings in Criminal Cases
2. 9.110: Appeal Proceedings: Final Orders
3. 9.110(i): Validation of Bonds
4. 9.110: Appeal Proceedings: Final Orders; 9.430 100: Appeal Original Proceedings2 — Non-Final Orders
5. 9.120: Discretionary Review of District Court Decisions
6. 9.125: Discretionary Review of Trial Court Orders and Judgments Certified by the District Court
7. 9.150: Certified Questions from Federal Courts
8. 9.100: Original Proceedings
9. 9.130: Appeal Proceedings: Non-Final Orders

Committee Notes

1977 Revision. (Repeat)

1980 Amendment. (Repeat)

2.Rule 9.040. General Provisions

* * * * * *

Committee Notes

1977 Revision (Repeat)

1980 Amendment. Section (g) was amended to direct the clerk of the district court to transmit copies of the district court decision, the certificate, the order of the trial court, and the suggestion, replies and appendices in all cases certified to the Supreme Court pursuant to Rule 9.030(a)(2)(B)r or otherwise certified pursuant to Rule 9.030(aV2KAl(vl or (vi).

3. The amendment and committee note to Rule 9.100(c) which was adopted on July 3, 1980 in No. 58,984 is deleted, and Rule 9.100(c) as adopted in 1977 is reinstated.

4. Rule 9.110. Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

(a) Applicability. This rule applies to those proceedings which:

(1) invoke the appeal jurisdiction of the courts described in Rule 9.030(a)(1)(A); (b)(1)(A) and (c)(1)(A);

(2) seek review of administrative action described in Rule 9.030(a)(l)(B)(ii), (b)(1)(C) and (c)(1)(C); and

(3) seek review of orders granting new trial in jury and non-jury civil and criminal cases described in Rule 9.130(a)(4) and 9.140(c)(1)(C).

******

(d) Notice of Appeal.

The notice of appeal shall be substantially in the form prescribed by Rule 9.900(a). The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition and the nature of the order to be reviewed.

******

Committee Notes

1977 Revision (Repeat)

1980 Amendment. The rule has been amended to incorporate changes in Rule 9.030 and to reflect the abolition of Supreme Court jurisdiction to review, when provided by general law, final orders of trial courts imposing sentences of life imprisonment.

The reference indicated (2) in the second paragraph of this Committee Note for 1977 Revision should be disregarded. See Amended Rule 9.030(,a'>flR'B'X'ii~> and accompanying committee note.

5. Rule 9.120. Discretionary Proceedings To Review Decisions of District Courts of Appeal

***** *

(d) Briefs on Jurisdiction. Petitioner’s brief, limited solely to the issue of the Supreme Court’s jurisdiction and accompanied by an appendix containing a conformed copy of the decision of the district court of appeal, shall be served within 10 days of filing the notice. Respondent’s brief on jurisdiction shall be served within 20 days after service of petitioner’s brief. A reply br-ief may be served-within-10- days thereafter. No reply brief shall be permitted. When jurisdiction is invoked pursuant to Rule 9.030(a)(2)(A)(v) or (a)(2)(A)(vi) (certifications by the district courts to the Supreme Court), no briefs on jurisdiction shall be filed.

******

Committee Notes

1977 Revision (Repeat)

1980 Amendment. Reply briefs from petitioners are prohibited, and the Court will decide whether to accept the case for review solely on the basis of petitioner’s initial and respondent’s responsive iurisdic-tional briefs.

6. Rule 9.125. Review of Trial Court Orders and Judgments Which Require Immediate Resol-u-tion-by the Supreme Court as so Certified by the District Courts of Appeal as Requiring Immediate Resolution by the Supreme Court.

******

(f) Effect of Suggestion. The district court shall not be required to rule on the suggestion and neither the filing of a suggestion nor the rendition by the district court of its certificate shall not alter the applicable time limitations or place of filing. If an order is issued rendered granting or denying certification, no rehearing shall be permitted.

(g) Procedure When Supreme Court Accepts Jurisdiction. The jurisdiction of the Supreme Court attaches upon rendition of the order accepting jurisdiction. If the Supreme Court accepts jurisdiction, it shall so order and advise the parties, the clerk of the district court, and the clerk of the lower tribunal. The clerk of the district court shall transfer the record in the case to the Supreme Court within 10 days thereafter. The time limitations of the applicable jurisdictional rule will continue in effect, except that all papers formerly required to be filed in the district court shall be filed in the Supreme Court. The district court clerk shall transfer the case file to the Supreme Court clerk upon being advised that the Supreme Court has accepted jurisdiction.

7. Rule 9.130. Proceedings to Review Non-Final Orders

******

(c) Notice. The notice, designated as a notice of interlocutory appeal of non-final order, shall be substantially in the form prescribed by Rule 9-l-10(d) 9.900(0).

8. Rule 9.200. The Record

(a) Contents.

******

(2) Within 10 days of filing the notice of appeal, an appellant may direct the clerk to include or exclude other documents or exhibits filed in the lower tribunal. The directions shall be substantially in the form prescribed bv Rule 9.900(f). If the clerk is directed to transmit less than the entire record or less than the transcript of all testimony in a proceeding, the appellant shall serve with such direction a statement of the judicial acts to be reviewed. Within 20 days of filing the notice, an appellee may direct the clerk to include additional documents and exhibits.

9. Rule 9.210. Briefs (a) Generally.

******

(5) The initial and answer briefs shall not exceed 50 pages in length. Reply briefs shall not exceed 15 pages in length; provided that if a cross appeal has been filed, the reply brief shall not exceed 50 pages. Cross reply briefs shall not exceed 15 pages. Briefs on jurisdiction shall not exceed 20 10 pages. The table of contents and the citation of authorities shall be excluded from the computation. Longer briefs may be permitted by the court.

******

1980 Amendment (Repeat)

Jurisdictional briefs, now limited to 10 pages by subsection (a), are to be filed only in the four situations presented in Rule 9.030(a)(2)(A)ffl. (ii). (iiil and (iv).

A district court decision without opinion is not reviewable on discretionary conflict jurisdiction. See Jenkins v. State. 385 So.2d 1356 (Fla.1980). and Dodi Publishing Co. v. Editorial America. S. A.. 385 So.2d 1369 (Fla.1980). The discussion of iurisdic-tional brief requirements in such cases which is contained in the 1977 Revision of the Committee Notes to Rule 9.120 should be disregarded.

10. Rule 9.700. Guide to Times for Acts Under Rules

******

Committee Notes

1977 Revision (Repeat)

1980 Amendment. Practitioners are cautioned that, until the Supreme Court completed its review of the rules, it was not possible to adjust the times noted in this rule. Consequently no adjustments have been made in this rule to reflect 1980 amendments to other rules.

11. Rule 9.900. Forms

(a) Notice of Appeal.

(b) Notice of Cross-Appeal

(c) Notice of Appeal of Non-Final Order.

(d) Notice to Invoke Discretionary Jurisdiction of Supreme Court.

1/ The choices are:

a. expressly declares valid a state statute.

b. expressly construes a provision of the state or federal constitution.

c. expressly affects a class of constitutional or state officers.

d. expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law.

e. passes upon a question certified to be of great public importance.

f. is certified to be in direct conflict with decisions of other district courts of appeal.

See Rule 9.030(a)(2)(A).

(e) Notice of Administrative Appeal.

(f) Directions to Clerk.

(g) Designation to Reporter.

Original Jurisdiction-Florida Rules of Appellate Procedure

Proposed Amendments submitted by: The Florida Bar Committee on Appellate Rules, John R. Beranek, Chairman, and William A. Haddad, Gregory Paul Borgognoni and Betsy E. Hartley


author: ADKINS, Justice.

text:
    SPECIAL DISABILITY TRUST FUND, Petitioner, v. STONE & WEBSTER ENGINEERING CORP., Respondent.
    No. 56838.
    Supreme Court of Florida.
    Dec. 4, 1980.

      Claire D. Dryfuss, Sp. Disability Trust Fund, Dept, of Labor and Employment Sec., Tallahassee, for petitioner.
    Richard A. Valeri of Macfarlane, Ferguson, Allison & Kelly, Tampa, for respondent.
   ADKINS, Justice.

This cause is before the Court by petition for writ of certiorari to review an order of the Industrial Relations Commission affirming the Judge of Industrial Claims’ order requiring reimbursement and payment of claimant’s appellate attorney’s fees from the Special Disability Trust Fund. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. (1972).

We have reviewed the record and have found no departure from the essential requirements of the law in those portions of the orders pertaining to reimbursement. However, there is no statutory authority to support the Industrial Relations Commission’s award of appellate attorney’s fees from the Fund to claimant. That portion of the order is quashed and the cause remanded.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.


author: PER CURIAM. ENGLAND, Justice,

text:
    THE FLORIDA BAR, Petitioner, v. Ronald FATH, Respondent.
    No. 59652.
    Supreme Court of Florida.
    Dec. 4, 1980.
    Paul A. Gross, Branch Staff Counsel, Miami, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for petitioner.
    Ronald Fath, in pro. per.
   PER CURIAM.

This is a disciplinary action brought by The Florida Bar against Ronald Fath.

Following an evidentiary hearing the referee recommended that Mr. Fath be found guilty of neglecting a legal matter entrusted to him in that he failed to diligently pursue a divorce action for a client who had paid him for that purpose. The referee also recommended that Fath be found not guilty of a charge of neglecting an appeal for a criminal defendant. Our review of the record supports these recommendations, and we adopt them.

As punishment the referee has recommended a public reprimand and six months probation. In view of other disciplinary actions against respondent, we feel that this is inadequate punishment and that Mr. Fath should be suspended an additional six months and pay costs of this proceeding.

Accordingly, Ronald Fath is suspended for an additional six months to run consecutively from the two-year suspension currently imposed against him. Costs in the amount of $835.56 are to be paid by the respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON and McDONALD, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

As I indicated the last time Mr. Fath came to us with disciplinary problems, The Florida Bar v. Fath, 386 So.2d 787 (Fla.1980), I would remove him from the roll of attorneys in Florida by disbarment.

        The Florida Bar v. Fath, 386 So.2d 787 (Fla.1980); The Florida Bar v. Fath, 368 So.2d 357 (Fla.1979).


text:
    In re: FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. 58989-A.
    Supreme Court of Florida.
    Dec. 4, 1980.
   PER CURIAM.

The Supreme Court Committee on Judicial Administration has recommended that (a) Rule 2.040(b)(3) on district court of appeal filing fees be amended to extend the exemption for habeas corpus proceedings to civil as well as criminal cases, thereby bringing the rule in line with article I, section 13, Florida Constitution; and (b) Rule 2.050(c) on circuit chief judge selection be amended to provide that all chief judges serve two-year terms commencing on July 1 of each off-numbered year.

We approve the committee’s recommendations and hereby adopt the amendments to the Rules of Judicial Administration appended to this order, effective 12:01 a. m., January 1, 1981. The Court will entertain comments and objections prior to December 15, 1980.

It is so ordered.

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

APPENDIX

Rule 2.040(b)(3) is amended:

Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition, or other initial pleading is filed. The payment shall not be exacted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. The payment of the fee shall not be required in habeas corpus proceedings, or appeals therefrom; arising out of or in connection with criminal-actions.

The first sentence of Rule 2.050(c) is amended:

Selection. The chief judge shall be chosen by a majority of the circuit and county court judges within the circuit for a term of two years commencing on July 1 of each odd-numbered year, or if there is no majority, by the Chief Justice^ for a term of two years.


author: ADKINS, Acting Chief Justice.

text:
    Henry E. MEISTER, Petitioner/Cross-Respondent, v. BEATRICE FOODS COMPANY, etc., et al., Respondents/Cross-Petitioners.
    No. 55957.
    Supreme Court of Florida.
    Dec. 11, 1980.
    Edwin J. Bradley, of Lloyd & Henniger, St. Petersburg, for petitioner/cross-respondent.
    Charles A. Zinn, of Shackleford, Parrior, Stallings & Evans, Tampa, for respondents/cross-petitioners.
   ADKINS, Acting Chief Justice.

This cause having heretofore been submitted to the Court upon the transcript of record and briefs to review the order of the Industrial Claims Commission and the Court finding no departure from the essential requirements of law, it is ordered that certiorari is denied. See: Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

The petition for certiorari upon cross-notice is granted and the portions of the orders of the Industrial Relations Commission and of the Judge of Industrial Claims granting costs to the petitioner, Henry E. Meister, are hereby quashed.

It is so ordered.

BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


author: ANSTEAD, Judge.

text:
    FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. Kenneth SHAFFER, a minor, by and through his mother and next friend, Carol Newton and Carol Newton, individually, Appellees.
    No. 79-2586.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Jan. 8, 1981.
    Bernard F. Grail, Jr. of Grail & Herzog, P. A., Vero Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellees.
   ANSTEAD, Judge.

This is an appeal by Florida Farm Bureau Insurance Company from a final summary judgment finding that its automobile liability insurance policy afforded coverage to its insured, Paul Long, who is alleged to have shot and injured the appellee, Kenneth Shaffer. We have jurisdiction. See State Farm Mutual Automobile Insurance Company v. American Hardware Mutual Insurance Company, 345 So.2d 726 (Fla.1977).

The facts are not in dispute. On or about November 21, 1977, the plaintiff, Kenneth Shaffer, was picked up at his home by an employee of the Fort Pierce News Tribune. Together with some other young boys, Shaffer was to be driven to a location where the boys would solicit newspaper subscriptions. While en route, the boys began throwing tangerines out of the car window at signs along the roadway. When one of the tangerines, thrown by the plaintiff Shaffer, was tossed in the general direction of an approaching vehicle driven by Richard English, the English car turned around and began chasing the Shaffer car. The defendant Paul Long, a passenger in the English ear, pulled out a gun and fired a shot. In an attempt to get away, the driver of the Shaffer vehicle turned into a street and tried to turn around. In so doing he drove the car off the roadway and became stuck. At this point the defendant Long fired three shots out of the window of the English car, the third one striking and injuring the plaintiff Shaffer. Shaffer sued Long and Farm Bureau.

Long owned an automobile .insured by a policy with Farm Bureau which afforded liability coverage to Long for bodily injury sustained as a result of the “use of any auto.” Farm Bureau contends that the injury sustained by Shaffer did not result from the use of the automobile in which Long was a passenger.

The mere fact that a vehicle is the site of an injury or incident is insufficient to create a causal connection between the use of the vehicle and the injury so as to bring the injury within the policy coverage. Stonewall Insurance Company v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978); Feltner v. Hartford Accident and Indemnity Company, 336 So.2d 142 (Fla. 2d DCA 1976); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976).

In General Accident Fire and Life Assurance Corporation, Ltd. v. Appleton, 355 So.2d 1261 (Fla. 4th DCA 1978), the insured, a female hitchhiker, was attacked and robbed by three men while she was riding in the automobile which picked her up. This court held that there was an insufficient causal connection between the use of the vehicle and the bodily injury sustained by the insured to allow recovery under her uninsured motorist policy. We held that the use of the automobile was simply incidental to the resulting injury and that the automobile served as no more than the physical situs of the attack. In so holding an attempt was made to define the type of causal relationship required in order to sustain coverage:

We recognize that bodily injury resulting from a criminal assault, under the terms of an uninsured motorist policy, may be caused by accident and arise “out of the ownership, maintenance or use of an uninsured automobile,” as was the case in Leatherby. However, the risks of bodily injury from a criminal assault are not normally contemplated by the parties to an automobile liability insurance policy. For there to be coverage there must be a causal connection between the use of the automobile and the bodily injury resulting from the criminal assault. This may be established by showing that the automobile itself was used to inflict the bodily injury, as in Leatherby, or that the automobile was used in some manner that contributed or added to the bodily injury, as in Valdes. Considering the facts in this case, we conclude that Appleton failed to show a sufficient causal connection between the uninsured automobile which was the situs of the criminal as-, sault and the bodily injury that he suffered as a result of the assault.

A case on virtually all fours is Nationwide Mutual Insurance Company v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977). Based upon a similar shooting incident, the North Carolina court concluded that an injury caused by gunshots fired from the insured’s moving vehcile did not constitute an accident arising out of the ownership, maintenance, or use of an automobile. The court also rejected the contention of the injured party that a causal relationship was established simply by a showing that “but for” the use of the automobile the accident would not have happened. A similar result was reached in the case of Vanguard Insurance Company v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972).

Shaffer principally relies upon two decisions from the Third District. Both cases were discussed and distinguished in Appleton, supra, and for the same reasons we find those cases not controlling here:

Two cases from the Third District have been considered in formulating our conclusion. The court in National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971), decided that an automobile liability insurance carrier was obligated to provide a defense to its insured when a passenger in the insureds’ automobile was bitten by insureds’ guard dog while the dog was being transported in the automobile from the insureds’ home to their place of business. The automobile in that case was more than just the physical situs of the dog bite; it was being used for the specific purpose of transporting the dog. The causal connection between the dog bite and the use of the car is apparent. An analogous situation would exist if the insureds were using their automobile to transport explosives or other dangerous substances and someone was injured. In the other case, Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974), cert. denied, 341 So.2d 975 (Fla.1977), the court found that the wrongful death of a pedestrian, struck by a beer mug thrown by a passenger in a moving automobile, arose out of the use of the insured’s automobile. There, the automobile from which the mug was thrown was being driven at a high rate of speed which no doubt greatly contributed to the velocity of the mug. In both Corbo and Valdes there was a factual basis for the court to find a causal connection or relation between the injury and the use of the automobile. Appleton, supra at 1263.

In Appleton, the vehicle was used to pick up the victim and was the site of the attack. Here, the vehicle was used to transport the assailant to the victim and was the site from where the gun was fired.

But, just as was true of the victim in Appleton, Shaffer’s injury did not result from any incident of use of the vehicle. The fact that the tortfeasor was occupying the car at the time of the shooting was no more than incidental and did not make the injury one resulting from the use of the vehicle. To hold such a relationship alone sufficient to constitute a causal connection would logically lead to absurd consequences, such as allowing recovery under an automobile liability policy when a vehicle is simply used as the means of transporting an assailant to the location where an assault is committed. The injury was not caused by the automobile but by the gunshot. From the standpoint of causation, the injury could have occurred in the woods, in a house or anywhere else. As we stated in Appleton, supra, a criminal assault is not the usual risk anticipated under an automobile policy and for coverage to apply there must be a showing that the automobile itself was used in some manner to cause or produce the injury.

In conclusion we hold that the fact that an automobile was used to transport the assailant to the scene and the fact that the gun which produced the injury was thereafter fired from such automobile do not constitute sufficient circumstances to establish a causal relationship between the use of the automobile and the injury for purposes of invoking the automobile liability insurance coverage of the assailant.

Accordingly, this cause is reversed with directions that judgment be entered for the appellant.

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

      . The cases cited in this quote are Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla. 2d DCA 1975) and Valdes v. Smalley, 303 So.2d 342 (Fla.3d DCA 1974), cert. denied, 341 So.2d 975 (Fla.1977).


text:
    Victor Murdoch SHEMWELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-976.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1980.

      Jack 0. Johnson, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of the circuit court is affirmed, but the case is remanded for resen-tencing. The sentence incorrectly failed to provide the period of credit time to be allowed appellant as required by Section 921.-161(1), Florida Statutes (1979). Brooker v. State, 362 So.2d 697 (Fla. 2d DCA 1978). Appellant need not be present at resentenc-ing.

BOARDMAN, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    Cecil L. LOFTIS, Appellant, v. STATE of Florida, Appellee.
    No. SS-360.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Rehearing Denied Jan. 8, 1981.
    Hilliard Moldof of Bofshever, Redlich & Gutter, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Loftis appeals his conviction for possession of marijuana urging, among other things, that the trial court erred in denying his motion to suppress physical evidence. Because we reverse on this point, we do not decide the other issues raised by appellant.

Loftis, driving a pick-up with a topper, bypassed an agricultural inspection station and was stopped by Inspector Hubbard about three miles into Georgia. According to Hubbard, when he requested access to the truck Loftis responded that he did not have the key but if he had one Hubbard could look. Hubbard then inserted his finger or hand into a crack between the closed rear door and the frame and “kind of tugged on it and the door opened.” At this time, he observed a piece of plywood covered by blankets or a sleeping bag and a package which appeared to be wrapped in opaque plastic. He requested that Loftis return to the station with him and testified that Loftis was not free to leave and that he would have called for assistance from the Georgia authorities if Loftis had tried to do so.

Back at the station, Loftis was formerly arrested for failing to stop at the inspection station and Hubbard informed Loftis he needed to look in the truck again. Loftis followed Hubbard out to the truck and Hubbard either opened both the top and bottom rear doors or Hubbard opened one and Loftis the other. Without requesting further consent, Hubbard began to inspect the contents of the truck. He removed the plastic wrapped package, cut a hole in it and found marijuana. According to Hubbard, this package was wrapped in plastic and taped. After finding the marijuana, Hubbard called the sheriff who arrested Loftis for possession of marijuana.

On these facts, we cannot conclude that Loftis freely and voluntarily consented to the search of the truck or its contents. Taking Hubbard’s testimony as true, Loftis’ statement that if he had a key Hubbard could look into the vehicle cannot be interpreted as a waiver of his constitutional right to be free from unreasonable searches. As we stated in Powell v. State, 332 So.2d 105, 107 (Fla. 1st DCA 1976) for a person “to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. . . . ”

The illegality of Hubbard’s initial opening of the truck was not cured by the events which occurred back at the station. Even if we accept that Loftis cooperated in opening the truck, there was no consent to the removal and inspection of a package which was wrapped and taped. Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979), Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980). In Luxenburg, the defendant voluntarily opened his truck and a box which contained a plastic bag. Without further request, the inspector reached into the truck, grabbed the bag and slit it with his knife. There, as here, the inspector never indicated that he smelled marijuana or had other probable cause to believe the truck contained contraband. There, as here, any consent given was limited and did not extend to a search of the contents of the truck. When there are no exigent circumstances, where consent is not voluntarily given and where there is no probable cause to suspect contraband, a warrantless search may not be conducted. Rose v. State, supra. When Hubbard opened the truck, there was no contraband in plain view, Hubbard never indicated that he smelled marijuana and there were no exigent circumstances to justify his further search.

Reversed and remanded with instructions to discharge the defendant.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


author: LETTS, Chief Judge.

text:
    Ralph Hunter CRAIG, Appellant, v. STATE of Florida, Appellee.
    No. 79-1103.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Rehearing Denied Jan. 14, 1981.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

Affirmed on the authority of W. T. Parker v. State of Florida, 389 So.2d 336 (Fla.4th DCA 1980).

BERANEK, J., and WESSEL, JOHN D., Associate Judge, concur.


text:
    The STATE of Florida, Appellant, v. Fred Eugene ROBINSON, Appellee.
    No. 79-1426.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Rehearing Denied Jan. 9, 1981.
    Janet Reno, State Atty., for appellant.
    Weiner, Robbins, Tunkey & Ross and Jeffrey S. Weiner, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellee was arrested at Miami International Airport with what turned out to be two suitcases full of marijuana. Search of the suitcases was made pursuant to an alleged consent, obtained post-arrest. Testimony regarding the voluntariness of the consent fell short, in the opinion of the trial judge, of the “clear and convincing” quantum of proof necessary to sustain the war-rantless search. See Bailey v. State, 319 So.2d 22, 27 (Fla.1975). Based on our review of the record, we are not disposed to overturn that finding.

Affirmed.


text:
    Larry Jack STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 00-390.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    Rehearing Denied Jan. 12, 1981.
    Clyde M. Taylor, Jr., Tallahassee, Alvin E. Entin, North Miami Beach, and Larry Jack Strickland, in pro. per., for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

This is an appeal from a conviction for grand theft. We affirm because the record before us is inadequate to demonstrate reversible error.

The appellant filed the record on appeal in November 1979 and filed his brief in December 1979. Shortly thereafter, the State moved to strike the appellant’s brief because there were no appropriate citations to the record contained in the brief’s Statement of the Facts. The State also requested that the appellant be compelled to file additional transcripts of the proceedings because that portion of the transcript which had been filed did not pertain to the issues raised by the appellant.

On December 26,1979, this court issued a Show Cause Order to the appellant. The appellant, through his attorney, responded to this Order on January 3, 1980, wherein he conceded the inadequacy of the record on appeal and requested 30 days to file additional portions of the trial transcript.

On April 1, 1980, this court “determined that this appeal cannot be decided on its merits without certain additional transcript . . .,” and it was ordered that within 30 days, the appellant “supplement the record on appeal with any documentation necessary to support his point on appeal. . . . ” The appellant was also ordered to “file an amended statement of the facts with appropriate references.” In May 1980, the appellant’s attorney requested an extension of time to comply with the preceding Order. On May 16, 1980, this court issued a memorandum to counsel extending the time to comply with the April 1, 1980 Order up to and including June 18, 1980.

The appellant has not complied with this court’s Order of April 1,1980. Fla.R.App.P. 9.200(f)(2) provides that “[i]f the court finds that the record is incomplete it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.” Such an opportunity was provided herein, but not taken advantage of. Therefore, the appellant’s conviction is affirmed because the record before this court is inadequate to demonstrate reversible error. See Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979).

ROBERT P. SMITH, Jr., and THOMPSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: BASKIN, Judge.

text:
    Robert E. SCHARF, Appellant, v. William C. PHILLIPS, M. D. et al., Appellees.
    Nos. 79-840, 79-960.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Jan. 9, 1981.
    Joe N. Unger, Miami, for appellant.
    Adams & Ward and James W. Kaufman, Miami, Papy, Poole, Weissenborn & Papy and Charles C. Papy, Jr., Coral Gables, for appellees.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   BASKIN, Judge.

We affirm the final judgment in favor of Drs. Phillips and Elias and their malpractice insurers and find no error in the denial of appellants motion for new trial. The evidence clearly supports the verdict. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); In re Estate of Cohen v. Holland, 370 So.2d 40 (Fla. 3d DCA 1979). Appellant contends that his drug addiction and the attendant disruption of his personal life were the result of the doctors negligently prescribing the drugs Miltown and Nembutal. Testimony disclosed, however, that their prescriptions were refilled by telephone calls to druggists, sometimes during periods when the doctors’ offices were closed. Appellant’s arguments are otiose in the absence of testimony that the prescriptions were obtained through these doctors rather than by appellant using his wife’s prescription. Furthermore, the evidence does not show that his brain damage or manic depressive and alcoholic conditions were caused by these prescriptions and not by his previous automobile accident and head injury.

Affirmed.

      . Case Nos. 79-840 and 79-960 were consolidated for appeal. On September 12, 1979, this court dismissed the appeal as to appellees Ar-len e Cheetham, Jack Uslan, Super-X Drug Stores, Alvin Rosen, Dadeland Medical Apothecary, and Walter Van Munster, d/b/a Suniland Rexall Pharmacy.


author: DANIEL S. PEARSON, Judge.

text:
    S. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1788.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Jan. 9, 1981.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

S. W., a juvenile, was found guilty of having committed first-degree arson in violation of Section 806.01, Florida Statutes (1979). The trial court withheld adjudication of delinquency and placed the juvenile in the custody of relatives to be returned to his mother in Massachusetts.

We reverse the finding of guilt upon a holding that (a) in order to sustain a conviction for first-degree arson, the State must prove that the fire was set wilfully and maliciously, Love v. State, 107 Fla. 376, 144 So. 843 (1932); see also K.R.M. v. State, 360 So.2d 806 (Fla. 1st DCA 1978); Dodson v. State, 334 So.2d 305 (Fla. 1st DCA 1976); (b) the evidence was totally consistent with the hypothesis that the fire was inadvertently caused by the juvenile throwing a cigarette, and thus insufficient to establish the required intent, McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980).

Reversed.

      . This disposition is not in accord with Section 39.10, Florida Statutes (1979). We need not, however, address this issue.


author: HUBBART, Chief Judge.

text:
    BEAVER CRANE SERVICE, INC., Appellant, v. NATIONAL SURETY CORPORATION, Pittman Insurance Agency, Inc., and William Pittman, Chesapeake Adjustors, Inc. and William Kotaska and Markel Service, Inc., Appellees.
    No. 79-2221.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Jan. 9, 1981.

      Montgomery, Lytal, Reiter, Denney & Se-arcy and Charles C. Powers, West Palm Beach, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael Murphy and Thomas F. Martin, Miami, Walsh, Theissen & Boyd and Mark R. Boyd and Alan V. Hanson, Ft. Lauderdale, David L. Willing and Karel H. Baarslag, McDonald & McDonald and J. A. Dillian, Miami, for appel-lees.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central question presented for review by this appeal is whether insurance proceeds due and payable under an insurance policy for accidental damage to an insured chattel [which is the subject of a security agreement and the collateral for a loan] are payable to the secured party under the security agreement. We hold that such proceeds are so payable to the above secured party to the extent of its secured interest under Section 679.306(1), (2), Florida Statutes (1975). As the subject insurance proceeds were properly paid by the insurer to the secured party in the instant case, we affirm the final summary judgment entered below.

I

The facts of this case as they pertain to the issue on appeal are somewhat complex. The plaintiff Beaver Crane Service, Inc. purchased a certain mechanical grove crane for its business and financed the purchase thereof through Associates Commercial Corporation. The plaintiff executed a promissory note and a security agreement to Associates pledging the grove crane as collateral therefor. Under the security agreement, Associates was given a security interest in the crane with the right at its option to take possession of same without notice or demand upon the plaintiff’s failure to make timely payments required under the promissory note. The security agreement further required the plaintiff to provide insurance coverage on the subject grove crane for the benefit of the secured party in a sum not less than the amount secured. Finally, the security agreement specifically adopted the applicable sections of the Uniform Commercial Code with respect to the disposition of proceeds on the subject collateral. A duly executed financing statement was subsequently filed with the Secretary of State in order to protect the interest of the secured party Associates in both the collateral grove crane and the proceeds of the collateral.

The plaintiff, in compliance with the above security agreement, obtained an insurance policy on the subject crane from the defendant National Surety Corporation. Defendants Pittman Insurance Agency and William Pittman, as agent, were the insurance brokers which procured the insurance coverage requested by the plaintiff; the defendant Markel Service, Inc. was the insurance broker who issued the insurance policy for the defendant National Surety.

The subject insurance policy contained the following relevant provisions as to the party or parties to be paid in case of an insured loss:

“Loss Payable Clause: Loss if any to be adjusted only with the insured and payable to the insured and Associates Commercial Corporation, P. 0. Box 8428, Ft. Lauderdale, Florida. See endorsement.”

The endorsement referred to in the above provision, in turn, provided in relevant part as follows:

“Loss or damage, if any, under the policy shall be payable as interest may appear to Associates Commercial Corp., P. 0. Box 8428, Ft. Lauderdale, Florida, 33310.”
“Whenever a payment of any nature becomes due under the policy, separate payment may be made to each party at interest provided the Company protects the equity of all parties.”

A

On June 1, 1976, the insured crane sustained accidental damage during the course of operation while in the possession of the plaintiff. The plaintiff notified and filed a claim with the defendant National Surety Corporation for the damage loss sustained to the crane in the accident. The lienor Associates made no claim under the subject policy at this time. The defendant National Surety through its agent and adjusters, the defendant Chesapeake Adjusters, Inc. and William Kotaska, proceeded to adjust the claim. The plaintiff took the crane to the defendant Florida Equipment Company for repairs. The defendant Florida Equipment Company, in turn, repaired the crane and submitted a bill for $56,397.85.

On August 16, 1976, the defendant National Surety wrote a letter to the plaintiff and refused to pay the claim on the ground that the insured crane utilized a boom which exceeded 40 feet in length and was allegedly excluded from coverage under paragraph five of the subject insurance policy. The defendant Florida Equipment, in turn, refused to return the crane to the plaintiff for failure to pay the submitted bill, and eventually converted the crane by selling it to a third party without the consent of the plaintiff.

B

On June 1, 1976, at the time of the aforementioned accident, the plaintiff was six days late on an installment payment to Associates under the promissory note. On June 2, 1976, Associates sent a letter to the plaintiff stating that its May 25, 1976, payment was overdue, that delinquent charges were being assessed against the plaintiff and that immediate remission of the overdue installment plus delinquent charges was required. The letter further stated, “If you cannot forward these funds, please contact us and we will attempt to work with you on arrangements for payment.” The plaintiff, however, made no further payments on the note claiming that the defendant National Surety’s refusal to pay the claim and the defendant Florida Equipment’s sale of the crane caused it to lose certain revenues and eventually go out of business. As a result, the plaintiff defaulted on the loan to Associates, and, on July 12, 1977, a judgment of $90,552.93 was entered against the plaintiff and in favor of Associates in the Circuit Court for the Eleventh Judicial Circuit of Florida.

C

On May 17, 1977, the lienor Associates belatedly asserted its rights under the subject insurance policy by bringing action in the Circuit Court for the Eleventh Judicial Circuit of Florida against the defendant National Surety, averring that it was entitled, under the above policy, to payment on the claim involving the damaged insured crane. On November 6, 1978, the defendant National Surety settled with Associates on the lawsuit, paid an undisclosed sum to Associates under the subject insurance policy, and the lawsuit in question was dismissed by the court. It plainly appears from the record that the secured interest of Associates in the crane at the time of the subject accident far exceeded the damage loss to the crane.

D

On October 28,1977, the plaintiff brought suit against the defendant National Surety in the Circuit Court for the Eleventh Judicial Circuit of Florida for breach of the subject insurance policy based on the failure to pay the plaintiff on the claim involving the damaged crane. Suit was also brought against the defendants Chesapeake Adjustors and William Kotaska for certain misrepresentations allegedly made that the claim in question would be paid to the plaintiff. Suit was further brought against the defendants Pittman Insurance Agency and William Pittman for failure to procure insurance covering the subject accident as requested by the plaintiff. Finally, the plaintiff also sued the defendants Florida Equipment Company and J. T. Vernon, as its agent, for converting the subject insured crane by selling same without the consent of the plaintiff.

Based on the above record, the trial court entered a partial summary judgment on liability for the plaintiff against the defendants Florida Equipment Company and J. T. Vernon on the conversion claims; no appeal has been taken from this ruling. The trial court also entered a final summary judgment for the defendant National Surety as well as the other defendants in this cause; the plaintiff has taken a timely appeal from this final summary judgment.

II

The controlling statutory authority in this case is Section 679.306, Florida Statutes (1975) which provides as follows:

(1) “ ‘Proceeds’ includes whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right. Money, checks and the like are ‘cash proceeds.’ All other proceeds are ‘noncash proceeds.’
(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.”

It has been held, based on the above statute, that insurance proceeds due and payable under an insurance policy for loss or damage, including theft or destruction, to an insured chattel [which is the subject of a security agreement and the collateral for a loan] is payable to the secured party to the extent of its secured interest under the security agreement. Kahn v. Capital Bank, 384 So.2d 976 (Fla. 3d DCA 1980); Insurance Management Corp. v. Cable Services of Florida, Inc., 359 So.2d 572 (Fla. 2d DCA 1978); see Paskow v. Calvert Fire Insurance Co., 579 F.2d 949 (5th Cir. 1978); PPG Industries, Inc. v. Hartford Fire Insurance Co., 531 F.2d 58 (2d Cir. 1976). Indeed, this case law has since been expressly codified by amendment to the above statute. Kahn v. Capital Bank, 384 So.2d at 977 n.2; § 679.306(1), Fla.Stat. (1979).

Ill

In the instant case, the subject insurance policy by endorsement makes the secured party Associates the loss payee under the policy only to the extent “as interest may appear.” In our view, Associates’ interest in the subject insurance proceeds clearly appears in this case by virtue of the security agreement and applicable UCC law stated above. The security agreement makes Associates the secured party on the collateralized, insured crane, and, indeed, requires the plaintiff to take out insurance in order to properly protect the interest of Associates in the crane. The security agreement further adopts the applicable provisions of the UCC with reference to proceeds on the collateral. Under the applicable UCC law, as stated above, the secured party Associates was entitled to the proceeds on the insurance policy upon the damage loss sustained to the crane on June 1, 1976 to the extent of its secured interest. Its secured interest in the crane at the time of the subject accident greatly exceeded the damage loss sustained, and, accordingly, Associates as the secured party was entitled to, and properly received, the entire insurance payout in this case.

The plaintiff strenuously argues, and we agree, that it was in lawful possession of the insured crane at the time of the damage to the crane on June 1, 1976. We do not believe, however, that such lawful possession entitles the plaintiff to the insurance proceeds herein. The entitlement to insurance proceeds upon the loss or damage to collateral which is the subject of a security agreement does not turn on lawful possession or title under the UCC. It turns on whether the secured party, as here, has an interest, by virtue of said security agreement, in the subject collateral. Associates demonstrated such an interest in this cause, and, therefore, properly received the full insurance payout herein; the plaintiff is not entitled, as correctly ruled by the trial court, to any of these proceeds.

At the oral argument in this cause, the plaintiff conceded, and we agree, that its claims against the defendants Chesapeake Adjusters, William Kotaska, Pittman Insurance Agency and William Pittman must necessarily fall if its claim against the defendant National Surety falls. As we have concluded that the plaintiff has no claim against the defendant National Surety herein, it follows that it has no claims against the above remaining defendants either. The final summary judgment entered in favor of all the above defendants is, accordingly,

Affirmed.

      . It is a matter of some dispute whether this endorsement was before the trial court at the time of the motion for summary judgment. It was clearly argued by both parties at the hearing on the motion for summary judgment. Our review of the record reveals that the endorsement does appear in the record at pages 13 and 1445 and was, in view of all the circumstances, properly before the trial court at the time of the motion for summary judgment. Indeed, no one on this appeal contests either the existence or accuracy of the above endorsement to the policy or that the endorsement formed, in part, the basis for the trial court’s ruling herein.

      . The defendant National Surety subsequently abandoned this position when it settled on the submitted claim with Associates Commercial Corporation, the lienholder on the insured crane. In any event, National Surety was correct, albeit for the wrong reason, in refusing to pay the plaintiff Beaver Crane under the subject policy because, as will be seen, the lienor Associates was entitled to the total payout under the said policy.

      . From this record, it is apparent that no claim was submitted by Associates for the conversion of the insured crane.

      . We reject the plaintiff’s contention that the record discloses a genuine issue of fact on this subject.


text:
    QUANTUM REALTY, INC., Ann Ford, Inc., and Gertrude Gerber, Appellants, v. LAUDERHILL APARTMENT INVESTORS, LTD., an Ohio Limited Partnership, and Walter Zaremba, Appellees.
    No. 80-92.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Rehearing Denied Jan. 9, 1981.

      Krongold & Bass and Paul H. Bass, Miami, for appellants.
    Layne & Brill and Richard Bernstein, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Whether a real estate broker produced a ready, willing, and able buyer for property so as to be entitled to a commission is the issue to be determined in this appeal from an adverse final judgment in an action to recover brokerage fees. The trial court found that appellants produced a ready, willing, and able buyer. Appellants were not entitled to a commission, said the court, since the prospectus was silent concerning existing mortgages, leading the court to conclude no agreement existed. The court also found that the buyer’s offer was subject to the approval of the sellers’ partners. We disagree and reverse.

A broker employed to find a buyer is entitled to a commission if he produces a ready, willing, and able purchaser. Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (Fla.1945); Wilder v. Burton, 317 So.2d 776 (Fla.3d DCA 1975); Mogul v. McClaskey Realty, Inc., 309 So.2d 254 (Fla.4th DCA 1975). Regardless of whether the employment contract requires the finding of a purchaser or a sale, the broker is entitled to a commission if the seller is responsible for the failure to consummate the sale. Knowles v. Henderson, supra; Hopkins v. Gibson Furniture, Inc., 312 So.2d 499 (Fla.2d DCA 1975).

The record reflects, and the trial court found, that the broker produced a ready, willing, and able buyer prepared to pay the asking price and the terms set forth in the written prospectus furnished by ap-pellee’s comptroller. Although the trial court was concerned with the terms relating to existing mortgages, the buyer and the seller were able to resolve those questions and reach an agreement. The sale was refused when the seller withdrew its property from the market.

At all times, the broker dealt with two general partners, Mr. Zaremba and Mr. Ya-nowitz. The necessity of confirmation by the entire partnership was not mentioned until after the broker presented a buyer.

For these reasons, we hold that the broker is entitled to its commission. We reverse the decision of the trial court and remand the cause with instructions that a judgment be entered in favor of appellants.


text:
    PIPER AIRCRAFT COMPANY, a foreign Corporation, Petitioner, v. Bernice COULTER (Brickles), Administratrix of the Estate of Dennis Lee Coulter and Roddy Coulter, deceased, Herbert L. Vaughn, Jr., and Ann Egbert, Personal Representative of the Estate of Ernest H. Cormier, deceased, Respondents.
    No. 80-1945.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 1980.
    McClure & Gay, P. A., Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for petitioner.
    Barry L. Meadow of Podhurst, Orseck & Parks, P. A., Miami, for respondent Bernice Coulter (Brickies).
    Eugene Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, and Edward R. Curtis of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for respondents Herbert L. Vaughn, Jr. and Ann Egbert.
   PER CURIAM.

This matter is before us to review an order of the trial court requiring the petitioner to produce “all investigative reports and expert opinions” in its possession or control involving an accident similar to the one involved in this litigation. In the trial court the items sought to be produced included all “reports, memoranda, correspondence or other writings” relating to the other accident as well as similar information involving the subject accident. The petitioner had refused to disclose such information in answers to interrogatories on the basis that the request encompassed privileged material as well as discoverable material. At the hearing before the trial court the respondents conceded a work product privilege as to information developed concerning the subject accident and withdrew its request for such information. However, it was contended that the petitioner could claim no privilege as to information developed on other accidents. The trial court agreed and entered the order described, supra. We believe that the order entered on the discovery request was over-broad in that it made no provision for the protection of any privileged matter. Jowanowitch v. Florida Power and Light Company, 381 So.2d 750 (Fla. 4th DCA 1980). Also see Florida Power and Light Company v. Limeburner, 390 So.2d 133 (Fla. 4th DCA 1980). Accordingly, the petition for writ of certiorari is granted and the order of the trial court as described above is quashed. This ruling is made without prejudice to the respondents to discover the existence of any specific items and to have such items produced absent an objection and showing by the petitioner that such item is protected from discovery. See Jowanowitch and Limeburner, supra, and Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.