text:
    CALLOWAY HOMES, INC., Petitioner, v. Lloyd G. SMILEY and Margaret C. Smiley, his wife, Respondents.
    No. 81-2119.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Rehearing Denied Dec. 8, 1982.
    Richard Joseph Saliba of Grail, Saliba & McDonough, Vero Beach, for petitioner.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for respondents.
   GLICKSTEIN, Judge.

At issue is whether the trial court departed from the essential requirements of law in denying the general contractor/petitioner’s motion to compel arbitration with the home owners/respondents and in staying the arbitration reinstituted by petitioner under the auspices of the American Arbitration Association.

Respondents filed their action in the trial court two years after executing an agreement with petitioner whereby it was to build their single family residence in Vero Beach for $191,300. Their complaint stated that the written agreement, dated September 14, 1979, expressly provided for arbitration of all disputes and that several months after the home was to have been completed petitioner filed a claim with the arbitration association for $86,500. They also alleged, however, that within a few days of filing the claim petitioner agreed to withdraw the demand and hold respondents harmless for any sum over the contract price of $191,300. Additionally, they contended the hold harmless agreement removed the parties’ contractual relationship from the arbitration clause in their original contract.

The trial court expressed at the hearing that it was denying the motion to compel arbitration without prejudice in order to study the complaint — and presumably the answer thereto which it ordered petitioner file within twenty days. Thereafter petitioner, rather than seeking any determinative ruling from the trial court, sought relief in this court to quash the order ultimately entered — which did not recite that it was entered without prejudice or pending consideration of the pleadings.

The trial court’s duty in this case is published in sections 682.03(1) and (4), Florida Statutes (1981):

(1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.
(4) On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

We interpret this statutory duty to include the determination of whether a substantial issue has arisen as to the termination of a prior contractual provision for arbitration; and if such issue is found to exist — then to resolve it summarily.

Summarily means quickly but not precipitately; and it is clear from the transcript that the trial judge needed the opportunity to study the complaint. It is equally clear that it was respondents’ burden to allege sufficient facts from which the issue of termination could arise and, if denied by petitioner, to prove such termination so that the trial court could make such determination — summarily.

The present petition was premature and is therefore denied.

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

      . Petitioner did not call to the trial court’s attention in its motion or in the argument at the hearing thereon that respondents — two weeks after petitioner filed its renewed demand for arbitration and shortly before they filed the action in circuit court which led to the order being questioned — also filed a demand for arbitration. Accordingly, we have not considered any references by petitioner to respondents’ demand.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Augustine Lasaro ARROYO, Morgan Randolph Tynes, and Marcos Alfredo Arce, Appellees.
    No. 81-1204.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 8, 1982.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck and Frederick S. Robbins, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The State appeals from an order granting the defendants’ motion to suppress. The issue before us is the admissibility vel non of an experiment conducted by the defense to impeach the testimony of police officers that two automobiles, each containing an approximate 300-pound load of marijuana in its trunk, appeared to be weighted down. We hold that the evidence of the experiment was inadmissible and reverse and remand for further proceedings.

Ordinarily, where a trial judge, sitting, as here, as the fact-finder, erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965); United States v. Dillon, 436 F.2d 1093 (5th Cir.1971); United States v. Menk, 406 F.2d 124 (7th Cir.1969); United States v. Krol, 374 F.2d 776 (7th Cir.1967); United States v. Mitchell, 297 F.2d 407 (2d Cir.1962); Teate v. United States, 297 F.2d 120, 121 (5th Cir.1961). Where, however, the record discloses that the trial judge relied upon the erroneous evidence, this presumption is overcome. United States v. Vaughan, 443 F.2d 92 (2d Cir.1970); United States v. Turnipseed, 272 F.2d 106 (7th Cir.1959). See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (possibility that trial judge erroneously considered co-defendant’s statement requires reversal).

In the present case it is abundantly clear that the defense experiment played a significant part in the trial judge’s ruling that the police were without any well-founded suspicion to stop the two vehicles driven by the defendants Arce and Tynes. During the argument on the defendants’ motion to suppress, the court commented:

“One aspect of this case that bothers me ... and that is, it seems like, as I recall, they stipulated to almost all of the facts, and the key would be driving into the warehouse, and then the car [sic] coming out.
“Now, I saw the demonstration, and the testimony was about three hundred and something pounds in each car, and that didn’t do much to the trunk. Then he had two fellows get in and they added another about 350 or 400 pounds, and the car [sic] didn’t drag. You know they make cars pretty good. They weren’t dragging the ground.”

In his written order granting the motion to suppress, the trial judge stated:

“In their ‘Organized Crime Bureau Report’ and sworn depositions, the officers who surveilled the warehouse testified that both vehicles were ‘heavily weighted in the rear.’ (Report at p. 4). Lead Detective D’Azevedo, in fact, testified ‘as they got outside the warehouse is the first time that I really felt confident and assured that they had the narcotics because I could see the back of the vehicles weighed very, very heavily and almost dragging the ground. Prior to that time I didn’t feel I had probable cause.’ (D’Azevedo deposition p. 31). This court has had the opportunity, pursuant to the Defendants’ demonstration, to observe the effects of weights equal to the weight of the marijuana in this case placed in the trunks of vehicles identical to those involved in this case. The demonstration showed, in fact, that the effects of 325 pounds in the trunks of these vehicles has a neglible [sic] effect on their appearance and that as much as 625 pounds does not cause the rear of either vehicle to even approach ‘dragging the ground.’ ”

While it is possible that the trial judge’s disbelief of the officers’ testimony that the vehicles seen by them “weighed very, very heavily” was not the sine qua non of his decision, his reliance on the experiment to impeach the officers’ testimony is inseparable from his various conclusions that there was no well-founded suspicion to justify the stops; that the stops were unjustified by any knowledge or information that the defendants were involved in any violation of Florida law; and that there was an absence of probable cause.

We turn now to the experiment. The automobiles which were stopped by the police were described as a rented 1979 Thunderbird and a rented 1980 Chevrolet Monte Carlo. The police officers observed these cars moving down a warehouse ramp. For all that appears in this record, the experiment admitted by the trial court was similar to the event to which it was being compared in only a single respect — a rented 1979 Thunderbird and a rented Chevrolet Monte Carlo of unknown year were used. As the State pointed out in objecting to the admission of the experiment and in urging error here, there was no showing, inter alia, that (1) the condition or type of the suspension system, shock absorbers or springs on the cars observed and the cars used in the demonstration was substantially similar; (2) the appearance of a vehicle with weight in its trunk is the same whether that vehicle is stationary or proceeding down a ramp; and (3) the distribution of weight in the trunks was substantially similar.

Where the conditions attending the alleged occurrence and the experiment are not shown to be similar, evidence of the experiment to test the truth of testimony that a certain thing occurred is inadmissible. Alston v. Shiver, 105 So.2d 785 (Fla. 1958); Hisler v. State, 52 Fla. 30, 42 So. 692 (1906); Spires v. State, 50 Fla. 121, 39 So. 181 (1905); Burgin v. Merritt, 311 So.2d 688 (Fla. 3d DCA 1975). The party offering the evidence of the experiment has the burden to lay a proper foundation for its admission by showing a similarity of the circumstances and conditions. Jackson v. Fletcher, 647 F.2d 1020 (10th Cir.1981); Navajo Freight Lines v. Mahaffy, 174 F.2d 305 (10th Cir. 1949). As the Florida Supreme Court said in Hisler v. State:

“The similarity of circumstances and conditions go to the admissibility of the evidence, and must be determined by the court. If, in the discretion of the trial court, such proffered evidence is rejected, the appellate court will not review the ruling, unless an abuse of discretion appears. But where such evidence is admitted over proper objections, and the rule as to similarity of circumstances and conditions attending the occurrence and the experiment does not appear to have been complied with in admitting the evidence, the appellate court will review the ruling, and if error be found therein and it does not appear from the whole record that no harm could have resulted to the defendant from the admission of such evidence, the error may cause a reversal of judgment.” 42 So. at 695.

Thus, a judge cannot simply “use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.” Love v. State, 457 P.2d 622 (Alaska 1969).

In the present case, the defendants failed to show either that there was substantial similarity between the conditions of the experiment and the conditions surrounding the events observed by the police so as to fulfill the requirement of basic relevancy or that this lack of similarity was inconsequential. This is not to say, however, that were the proper showing for the introduction of the experiment made that it could not be admitted. Since the trial judge’s precipitous admission of the experiment may have lulled the defendants into not presenting evidence which may have qualified the experiment for admission, we think it appropriate to reverse the order granting the motion to suppress and remand for further proceedings on the defendants’ motion to suppress.

Reversed and remanded.

      . It may very well be that some dissimilarities can be shown through expert testimony to be without significance or to create, at most, a minor variance in the result. The point is that it is up to the proponent of the experiment to make this showing.

      . Of course, the deficiency in establishing the condition of the observed cars could hardly be remedied by the trial judge’s act of erroneously taking judicial notice of “the fact that I have rented hundreds of cars ... but I have never had a defective car with shocks and things like that.” This fact is neither one “generally known within the territorial jurisdiction of the courts,” see § 90.202(11), Fla.Stat. (1979), nor one “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned,” see § 90.202(12), Fla.Stat. (1979), and therefore is not one which may be judicially noticed.


author: BASKIN, Judge. FERGUSON, Judge

text:
    The STATE of Florida, Appellant, v. Andres ECHEVARRIA, Appellee.
    No. 81-2603.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 8, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.

      William A. Clay and Paul Morris, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s suppression of statements made by defendant Echevarria in response to questioning by an officer attempting to complete a police report. Echevarria had asked to speak to an attorney prior to the time he was taken to the police station. When the officer asked “Who hit you?” Echevarria, who spoke little English, stated that the man he killed had hit him.

In our view, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) govern. Defendant’s response was the “intentional result of interrogation,” Barfield v. State, 402 So.2d 377, 381 (Fla.1981), and may not be deemed a voluntary statement merely because the officer intended to complete a report. In Innis, the court expressed the concept that it is the perception of the suspect rather than the intent of the police upon which we must focus. 446 U.S. at 301, 100 S.Ct. at 1689-90.

Affirmed.

FERGUSON, Judge

(concurring).

The single witness called to testify at the hearing on the motion to suppress the statement was Sergeant Genevieve Broussard. Her testimony in pertinent part is as follows:

A. I became involved with Mr. Echevar-ria upon responding to a call ... where a description of a man, Mr. Echevarria was given to me by Mrs. Echevarria, his ex-wife.
Q. Why did you go to the scene that you just mentioned?
A. I was dispatched there in reference to a man down, and upon arriving, that a man had been shot.
Q. Did you find out the name of that man?
A. I did. It was Evilio Perez.
Q. What did you do with the information that you got from his ex-wife?
A. I put it out on the police radio and initiated a BOLO for his arrest.
Q. Did you come in contact with him later?
A. I did.
* * * * * *
A. ... We knocked on Mr. Echevar-ria’s apartment door, and he responded to the door.
Q. What happened after he responded to the door?
A. Detective Martinez advised him in Spanish why we were there, and he also advised him of his Miranda rights at this point.
Q. After the defendant was read his Miranda rights, did he make a statement to the police officers there?
A. He said he didn’t want to talk to anybody without an attorney.
Q. Did you respect that wish and also the other police officers, as to not talking to him about this case without at least, contacting an attorney first?
A. That’s correct.
Q. Did you speak to him after that about this case at that location?
A. At that location, no I did not.
Q. What did you do with the defendant, then?
A. When we got to the defendant, we took him to Miami Police Department headquarters, and he was taken up to homicide for routine booking-type procedures, then I took him down to prisoner processing.
* * * * * *
Q. You mentioned you asked him if he had been injured?
A. That’s correct.
Q. What did he reply?
A. Yes, he did.
Q. What did he say?
A. He stated to me that he had been hit one time, and he pointed to his left eye above his brow.
Q. What was following that, if anything?
A. And then I asked him who hit him and he stated that the man he killed, and then he put his head down, covered his eyes and started to cry.

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), holds that after a suspect had invoked his right to counsel all interrogation must cease. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), is instructive as to the standard to be applied in determining whether there has been a custodial interrogation:

[Any] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. 446 U.S. at 301, 100 S.Ct. at 1690.

Unlike the facts in Barfield v. State, 402 So.2d 377 (Fla.1981), which is relied upon by the state, here there is not a close question. Despite her good intentions Sergeant Broussard should have expected, based on what she already knew, that the questions asked the defendant after he had requested an attorney were reasonably likely to elicit an incriminating response.


author: GRIMES, Acting Chief Judge.

text:
    Cassius L. PEACOCK and Tommay T. Peacock, husband and wife, Appellants, v. AMERICAN AGRONOMICS CORPORATION, a Florida corporation, Appellee.
    No. 82-194.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1982.
    Rehearing Denied Nov. 22, 1982.

      John S. Dzurak of Safron & Rooney, P.A., Punta Gorda, for appellants.
    William Knight Zewadski and John S. Vento of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves a dispute over whether certain citrus production and marketing agreements run with the land so as to bind subsequent purchasers with notice of the agreements.

In 1963, Richard and Isabelle Shea contracted with Citrus Grove Management Co., Inc., for the management of their three five-acre tracts of citrus located in Charlotte County. The agreements, identical in form, were entitled “Uniform Citrus Production and Marketing Agreement.” They called for Citrus Grove Management Co., Inc., designated as the “manager,” to act as agent for the Sheas for the purpose of maintaining the groves and marketing the citrus produced therefrom. The agreements obligated the owners to pay the manager for all caretaking expenses plus a fee; additionally, the manager was entitled to receive 10% of the gross sales price of the fruit. The term of each agreement was specified in the following language:

Grower has entered into this Agreement for the purpose of obtaining experienced management of his grove without the necessity of being personally in attendance. A successful grove operation will inure to the benefit of the parties over the years. Therefore, the effect of this contract shall continue in force from the date hereof and end after the tenth contract year following the first harvest and shall automatically renew for five (5) year periods thereafter unless an intention not to renew shall be served upon the party being notified.

The agreements also contained language which stated that they were “binding upon the heirs, personal representatives, successors and assigns of the respective parties.” The agreements were notarized and recorded in the public records of Charlotte County-

In 1968, Cassius and Tommay Peacock (appellants) bought the three five-acre tracts from the Sheas. In the meantime, American Agronomics Corporation (appel-lee) had succeeded to the rights of Citrus Grove Management Co., Inc., through name change and corporate merger. It continued to manage the groves under the agreements. When the Peacocks bought the property, they notified Agronomics that they no longer wished it to manage their groves and demanded the cancellation of the agreements. Agronomics contended that the agreements were binding upon the successor owners and continued to maintain the groves and sell the fruit. The Peacocks then sued Agronomics for declaratory judgment, trespass, conversion and other relief. Agronomics moved to dismiss. The court dismissed the complaint with prejudice, and the Peacocks appealed.

In the order of dismissal, the court set forth the basis for its ruling as follows:

The Uniform Citrus Production and Marketing Agreements, which plaintiffs asked this Court declare non-binding as to successor purchasers of grove property encumbered by such contracts, run with the land and are binding upon successor-purchasers of such grove property. These contracts grant to American Agro-nomics Corporation an agency, coupled with an interest, of which plaintiffs had notice prior to purchase since the contracts were recorded. The contracts on their face indicate that they are binding upon all successors and assigns and, by their express terms, grant an interest in the continued existence of the power, making it irrevocable until expiration by its express terms, which are clearly stated in the contract. See Bowling v. Nat’l Convoy and Trucking Co. [101 Fla. 634], 135 So. 541, 544 (Fla.1931).
As such, the conduct which forms the basis of the complaints with respect to trespass, conversion, the right to an accounting and an injunction are, as a matter of law, without merit, since all of the conduct complained of was authorized by the binding contracts as indicated above.

The Peacocks acknowledge that the agreements created an agency relationship between the Sheas, as principal, and Citrus Grove Management Co., Inc. (now Agro-nomics), as agent. However, they argue that the agency was not coupled with an interest and was, therefore, revoked when the Sheas conveyed the land to them.

As a general rule, the principal always has the power to terminate an agency, though he may be subject to liability if he has agreed not to do so. Thus, F. Mechem, Outlines of the Law. of Agency §§ 262, 264 (P. Mechem 4th ed. 1952), states:

§ 262. Revocation by the principal or renunciation by the agent. It is one of the basic concepts of the subject that no one can be forced to be a principal or agent against his will, and that either one may at any minute, without the consent of the other, terminate the relationship. The position of principal is inherently precarious; his possible liabilities are great; he may see his most precious interests being hazarded, not by his own acts but by those of an agent whose conduct he is unable to control. Plainly the principal should always be able, for any or no reason, to withdraw his affairs from further control by the agent (if the agent has not yet acted).
§ 264. Contract not to revoke. P may contract with A that he will employ A for a specified time, and that A shall represent him within certain limits (or work for him in a specified manner) for the specified time. Such contracts are common, perfectly legal, and, while neither party can be compelled to perform, a breach by either party subjects him to liability for damages. Suppose that, in addition, P contracts not to revoke the authority within the limited time. Plainly this adds nothing to the contract; such an obligation was implicit in the original contract. P may still revoke, subject to liability for breach. A fortiori, the fact that the agency is stated to be “irrevocable” will not make it so.

F. Mechem, Outlines of the Law of Agency §§ 262, 264, at 173,175 (footnotes omitted).

The one exception to the rule of revocability occurs when the agent’s authority is coupled with an interest. 2 S. Williston, A Treatise on the Law of Contracts § 280 (W. Jaeger 3d ed. 1959), addresses the question of when an agency is coupled with an interest so as to make the agent’s authority irrevocable.

The meaning of the words “coupled with an interest” has not been very accurately defined. Certainly they mean something more than a contract on the part of the principal that the agency shall not be revoked. For, in spite of such a contract the principal has the power, even if not the right, to revoke the agency with or without reason, though he may thereupon become liable for damages. If the revocation is in bad faith and to prevent the agent’s earning his commission when he is on the verge of completing full performance, the principal may be liable in the full amount of the commission.
In order that a power may be irrevocable because it is coupled with an interest, it is necessary that the interest be in the subject matter of the power and not in the proceeds which will arise from the exercise of the power:
“By the phrase ‘coupled with an interest,’ is not meant an interest in the exercise of the power, but an interest in the property on which the power is to operate.”
Under the instrument creating the power, or from the nature of the relation, the person clothed with the authority must derive a present or future interest in the subject itself on which the power is to be exercised, and not merely that which is produced by the exercise of the power. In short, the test is:
Does the agent have an interest or estate in the subject matter of the agency independent of the power conferred, or does the interest or estate accrue by or after the exercise of the power conferred?
If the former, it is an agency coupled with an interest, or as has been suggested, a proprietary power; if the latter, it is not.

2 S. Williston, A Treatise on the Law of Contracts § 280, at 299-302 (footnotes omitted).

The opinion in Bowling v. National Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (1931), cited by the court below, recognized these principles when it said:

[A]n interest, not amounting to a property or estate in a business, but still an interest in the continued existence of the power or authority to act with reference to such business, secured by contract, based upon a consideration moving from the agent to the principal, and not merely for the purpose of earning a salary or commission by the exercise of the power, but because the agent has parted with value, at the principal’s request or with his assent, looking to the exercise of the power as a means of reimbursement, indemnity, or protection, creates an agency coupled with an interest, which agency is not revocable and will in appropriate cases be protected and enforced by courts of equity.
This kind of interest is different from an interest, not in the thing concerning which the power is to be exercised, but in the results which are to be produced by the exercise of the power. Where the interest arises only from commissions or out of the proceeds of a transaction, or where the agent’s interest is merely his right to receive, by way of compensation or commissions, a certain per cent of a collection or sale effected by him there is no agency coupled with an interest. In such last-mentioned instance the power is held not to be coupled with an interest and is revocable, although if revoked, a right of action for breach of an express or implied promise not to revoke it may result.

101 Fla. at 638, 135 So. at 544 (citations omitted).

Measured by these criteria, the citrus production and marketing agreements did not create an agency coupled with an interest. They did not give Agronomics a proprietary interest in the property or the fruit; they merely gave Agronomics the right to receive a commission out of the proceeds of the sale of the fruit. Therefore, when the Sheas sold the property to the Peacocks, the agency relationship created by the agreements was terminated as a matter of law.

Only two other cases have been cited to us in which courts have addressed the possibility that a produce production and marketing agreement had created an agency coupled with an interest. Our holding is consistent with the rationale of McColgan v. Bank of California National Association, 208 Cal. 1329, 281 P. 381 (1929), but contrary to dicta contained in Phez Co. v. Salem Fruit Union, 103 Or. 514, 201 P. 222 (1921).

While the trial court relied upon Bowling to reach the opposite conclusion, we find the facts upon which the supreme court concluded that Mr. Bowling’s agency was coupled with an interest to be far removed from those in the instant case. Bowling devised a plan in which National Convoy and Trucking Company would engage in a business with Bowling as its manager. His contract with National acknowledged that the business “was wholly attributable to the invention of the manager who was solely responsible for the company’s being able to enjoy such business.” He was to receive for his services certain stipulated compensation and a percentage of the net income. The court seemed to feel that the contract created a property right on the part of Bowling in the possession, control and management of the business that he agreed to manage. While one might quarrel over whether even Bowling’s contract created an agency coupled with an interest, the fact that our supreme court concluded that it did so does not mean that every management contract will receive a similar interpretation. Here, the Sheas had no business, as such. They were simply nonresident owners of a citrus grove. By virtue of their contract, they employed an agent to maintain the groves and sell the fruit. We cannot see how this gave the agent an interest in the subject matter of the contract which would make the agency irrevocable.

Agronomics also argues, as they did in the court below, that the agreements created profits a prendre which by definition are irrevocable. See 1 G. Thompson, Commentaries on the Modern Law of Real Property § 139 (J. Grimes repl. ed. 1980). A profit a prendre is the right in one person to take from the land of another either a part of the soil or a part of its produce. Gray v. Handy, 349 Mass. 438, 208 N.E.2d 829 (1965); Hanson v. Fergus Falls National Bank, 242 Minn. 498, 65 N.W.2d 857 (1954). It is an interest in real property in the nature of an incorporeal hereditament. Gerhard v. Stephens, 68 Cal.2d 864, 442 P.2d 692, 69 Cal.Rptr. 612 (1968); 25 Am.Jur., Easements and Licenses § 4 (1966). Obviously, Agronomics had no rights in the Sheas’ land, and its interest in the fruit was limited to the authority to sell it for a commission. We do not read the agreements as having granted profits a prendre. In any event, even if the language could be construed to create a profit a prendre, the agreements were unwitnessed and, therefore, not executed with the formalities required by section 689.01, Florida Statutes (1981), for the conveyance of an interest in land.

In reaching our conclusion, we do not ignore the possibility that at the time the Peacocks purchased the groves, the Sheas may have been indebted to Agronom-ics by virtue of expenses incurred and services performed by Agronomics in carrying out the agreements. The agreements themselves provided that the owner granted the manager a lien upon the property and the crops as security for any indebtedness due the manager by the owner. While the Sheas had the power to terminate the agreements, they did not have the right to extinguish the liens on their property which secured the payment of legitimate indebtedness arising out of the agreements. Since the agreements were recorded, the Peacocks had at least constructive notice of the provisions for a lien. Therefore, despite the termination of the agreements, we hold that Agronomics has a lien upon the property and the produce thereof for the recovery of any expenses incurred and compensation earned in performance of the agreements until the time it was notified that the Peacocks had purchased the property and deemed the contracts to be terminated. See McColgan v. Bank of California National Association.

We reverse the judgment and remand the case for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


author: FERGUSON, Judge.

text:
    James Alvin EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-959.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Scott Silver and Calvin Fox, Asst. Attys. Gen., for ap-pellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant visited the victim’s jewelry store purportedly to purchase jewelry. While the owner was in the rear of the store engraving, the saleslady waiting on the appellant left him alone in the front to get him water at his request. After receiving the water, the appellant told the saleslady that he had spilled some on himself and would like to go out and clean up. The saleslady then unlocked the electronically controlled front door and he left. The storeowner came out, saw appellant getting into a cab and noticed that several items of expensive jewelry were missing from display cabinets. He ran after appellant attempting to catch him, but was unsuccessful. Neither the saleslady nor the owner saw any other person in the store during the entire episode.

At trial the following exchange took place between the victim and defense counsel on cross-examination:

Q. How many times did the police come to your store other then on the first day?
A. I believe that’s all. We went down to the police station instead of them coming to us.
Q. It was once or twice?
A. Twice.
Q. Once for what purpose?
A. We had to identify who it was by mug shots, (e.s.)

Defense counsel’s motion for mistrial set forth no specific grounds and was denied. There was no request for a curative instruction. Appellant contends that the reference to mug shots was so prejudicial that a new trial is required. We cannot agree.

Usually, a reference to mug shots does not necessitate an automatic reversal; rather the question must be resolved on the basis of the entire record and surrounding circumstances. See Loftin v. State, 273 So.2d 70 (Fla.1973); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977). Appellant concedes that identification of defendant as a person in the store on the date of the theft is not an issue. The real question is whether the circumstantial evidence excludes as a reasonable inference that someone other than the appellant took the jewelry from the store. The words “mug shot”, used by the witness in describing how she identified appellant, on this record, did not injuriously affect the substantial rights of the defendant and was therefore, at most, harmless error. A reference to a mug shot in police files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the police. Under these circumstances, including eyewitness identifications, a jury instruction, if requested and given, would have cured the error. Loftin v. State, 273 So.2d 70; Moore v. State, 418 So.2d 435 and Mancebo v. State, 350 So.2d 1098.

Affirmed.


author: GLICKSTEIN, Judge.

text:
    Elton H. SCHWARZ, Relator, v. Honorable Tom WADDELL, Jr., Judge of the Circuit Court, Eighteenth Judicial Circuit of Florida, Acting as Judge of the Circuit Court, Nineteenth Judicial Circuit in and for Martin County, Florida by Temporary Assignment, Respondent.
    No. 79-1855.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 9, 1982.

      Elton H. Schwarz, pro se relator.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Harouri & Roth, P.A., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

This case has a long procedural history which we hope to finally conclude. The facts have been recited in full in Schwarz v. Waddell, 389 So.2d 210 (Fla. 4th DCA 1980), rev’d, 405 So.2d 978 (Fla.1981). Remanding the case, the supreme court directed us to consider the three remaining grounds urged by relator in his petition for a writ of prohibition. Since none involves questions of jurisdiction appropriate for issuance of the writ, we deny his petition.

The three issues facing us are (1) whether garnishment under section 61.12, Florida Statutes (1979), may be obtained prior to entry of a judgment for arrearages; (2) whether the trial court had jurisdiction to enter its order for continuing writ of garnishment for child support on June 28,1979; and (3) whether the trial court erred in garnishing relator’s wages under section 61.12 for collection of delinquent child support payments after his dependent child attained the age of majority.

As a general statement of law, prohibition is a prerogative writ issued in the court’s discretion to restrain a lower tribunal from acting in excess of or without jurisdiction. It is not designed, as essentially urged by relator, to correct an order already issued; nor does it serve as a vehicle for the correction of errors made by a lower court acting within its authority. English v. McCrary, 348 So.2d 293 (Fla.1977). We have, however, determined to treat relator’s petition as one requesting a writ of certiorari, which Florida Rule of Appellate Procedure 9.040(c) authorizes us to do. See State ex rel. Department of Health & Rehabilitative Services v. Upchurch, 394 So.2d 577 (Fla. 5th DCA 1981).

Regarding the first issue raised by relator, the Supreme Court of Florida recently settled it in the affirmative in Sokolsky v. Kuhn, 405 So.2d 975 (Fla.1981), which held that reducing arrearages to final judgment precludes resort to section 61.12. See also Sweeten v. Anderson, 414 So.2d 258 (Fla. 4th DCA 1982).

Issue two lacks merit on its face since the amounts due under the continuing writ of garnishment pertain only to the amounts accruing subsequent to the final judgment entered on September 21,1978. The appeal of that judgment in Schwarz v. Schwarz, 395 So.2d 607 (Fla. 4th DCA 1981), could in no way affect the jurisdiction of the lower court to determine arrearages accruing subsequent to September 21st.

Last and foremost, relator urges us to apply the law of contempt to the law of garnishment. Contempt does not lie to enforce the payment of support arrearages once a child has attained the age of majority. Gersten v. Gersten, 281 So.2d 607 (Fla. 3d DCA 1973). See generally Annot., 32 A.L.R.3d 855 (1970), and cases cited therein. Generally speaking, contempt is not available as a means of enforcing money judgments due to the constitutional prohibition against imprisonment for debt; therefore, in support cases, it is an extraordinary remedy justified by a parent’s duty to provide for his minor children and society’s interest in protecting the welfare of dependents.

Garnishment, on the other hand, is an ordinary civil proceeding to enforce an order of the court for payment of money. The Legislature, in enacting section 61.12, recognized that orders entered in domestic matters should be treated differently, but it in no way indicated an intent to limit available remedies. On the contrary, it created an exception to the general exemption from garnishment that may be asserted under section 222.11, Florida Statutes (1979), when money is due the head of a family for personal services and labor, thus enlarging the source of funds available for support orders.

In declining to adopt relator’s third argument, we note the First District Court of Appeal rejected the same in Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980). Although the supreme court reversed Sokol-sky on other grounds, we believe its decision did not affect the validity of the district court of appeal’s opinion on this issue. Moreover, we find support for our conclusion in other jurisdictions. See, e.g., Dawson v. Dawson, 71 Wash.2d 66, 426 P.2d 614 (1967).

Finding no departure from the essential requirements of law and inappropriate grounds for a writ of prohibition, we deny relator’s petition.

DOWNEY and ANSTEAD, JJ., concur.

      . Section 61.12, Florida Statutes (1979), provides in relevant part:
      (1) So much as the court orders of the money or other things due to any person or public officer, state or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; ....
      (2) The provisions of chapter 77 or any other provision of law to the contrary notwithstanding, the court may issue a continuing writ of garnishment to an employer to enforce the order of the court for periodic payment of alimony or child support or both. The writ may provide that the salary of any person having a duty of support pursuant to said order be garnisheed on a periodic and continuing basis for so long as the court may determine or until otherwise ordered by the court or a court of competent jurisdiction in a further proceeding.

      . Florida Rule of Appellate Procedure 9.040(c) requires that “[i]f a party seeks an improper' remedy, the cause shall be treated as if the proper remedy had been sought....” We note, however, that we would not accept jurisdiction on any ground because relator has an adequate remedy below were it not for the supreme court’s direction to consider the remaining issues in the cause. The record reflects the following combined motions remain pending in the trial court: a sworn traverse of the motion for reissuance of the writ of garnishment; a motion to vacate the order for a continuing writ of garnishment for child support; and a motion to quash the writ of garnishment. These motions raised the same issues presented in relator’s petition for prohibition. The State, as garnishee, filed a motion for dissolution of garnishment, arguing that since no sworn denial to relator’s affidavit of exemption had been timely filed, all proceedings dealing with the writ of garnishment had to cease. The former wife filed an answer and relator filed this petition.

      . Article I, section 10 of the Florida Constitution provides that “[n]o person shall be imprisoned for debt, except in cases of fraud.”

      . 405 So.2d 975 (Fla.1981).


author: HERSEY, Judge.

text:
    Mark S. SEIGLE, personally and as Director, Employee Relations, William T. McFatter, as Superintendent of Schools, and Benjamin F. Stephenson, as Associate Superintendent for Personnel, of the Broward County School Board, Appellants, v. Dr. D. Marshall BARRY and Lawrence E. Jessup, Jr., Appellees.
    No. 81-2046.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    As Corrected on Denial of Rehearing Dec. 14, 1982.

      Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellants.
    Joseph H. Kaplan of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, P.A., and Joseph C. Segor, Miami, for appel-lees.
   HERSEY, Judge.

This is an appeal from a non-final order in the nature of a mandatory injunction. We have jurisdiction under Rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure. At the same time appellants seek review of an order denying their motion to dismiss the complaint. That order is not properly appealable until after final judgment. Habelow v. Travelers Ins. Co., 389 So.2d 218 (Fla. 5th DCA 1980); Heavy v. Parrish, 385 So.2d 1034 (Fla. 4th DCA 1980). See Rule 9.130, Florida Rules of Appellate Procedure.

This action was commenced to enforce certain rights under Florida’s Public Records Act, Chapter 119, Florida Statutes (1981). Appellees, professional economists, are retained by the bargaining unit for several hundred employees of the Broward County School Board to prepare for and engage in collective bargaining negotiations with the School Board. Appellees sought access to certain public records maintained on a computer. The parties stipulated that, without admitting fault under Section 119.-10, appellants would permit appellees access to the computer records including copies of computer tapes. None of the 800 programs maintained by appellants could provide the information in the format desired by appel-lees. To remedy that problem, appellees offered to design and pay for a program that would produce the desired printout or to reimburse appellants for obtaining such a program and running it for appellees. Appellants refused, resulting in this litigation. The issues were presented to the court at a priority hearing provided for by Section 119.11(1). The circuit court ordered appellant to run a new program designed at appellees’ expense which would access the computer data banks resulting in a printout of the public records in appellees’ desired format. Furthermore, the order determined that appellants were in violation of the statute, despite the stipulation of the parties that fault (violation of the statute, Section 119.10) would be heard and decided at a subsequent hearing.

We reverse that portion of the order finding a violation of the statute because the parties stipulated that this issue would be tried later. We also determine that finding is not supported by substantial competent evidence.

The remaining question is whether there is a right under the Public Records Act to obtain information in a particular format. This is a question of first impression in this as well as any other jurisdiction. That being so, we begin with a short explanation of the computer terminology and principles involved.

A computer is an electronic device consisting of a finite number of on-off switches having the capability of storing vast amounts of information fed into it in a random fashion and is referred to in computer jargon as hardware. A computer program, known as software, is a means of retrieving that information in a specified format and at high speed. When a program is run, the computer produces the information in printed form termed a computer print-out.

Turning to the Public Records Act, we note it is sometimes referred to as a “right to know” law. The Act provides access to any information that is a matter of public record with certain specific and very limited exceptions. The statute defines public records as follows:

[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

§ 119.011(1), Fla.Stat. (1979). There can be no doubt that information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet. Precedent is scant but supportive. See, e.g., Long v. U.S. Internal Revenue Service, 596 F.2d 362 (9th Cir.1979); Menge v. City of Manchester, 113 N.H. 533, 311 A.2d 116 (1973); Minnesota Medical Ass’n v. State, 274 N.W.2d 84 (Minn.1978). It is also apparent that all of the information in the computer, not merely that which a particular program accesses, should be available for examination and copying in keeping with the public policy underlying the right to know statutes.

We now confront the more insidious question of whether the public may require information contained in public records to be made available for inspection and copying in a particular format. In the context of pre-computer public records we perceive the answer to this question to be in the negative. If the health department maintains a chronological list of dog-bite incidents with rabies implications the putative plaintiff, bitten by a suspect dog, may not require the health department to reorder that list and furnish a record of incidents segregated by geographical areas. Nothing in the statute, case law or public policy imposes such a burden upon our public officials. Nor may the plaintiff prevail by offering to pay the cost, thus eliminating the objection that the taxpayers money is being spent for individual gain. It would be ludicrous to require public officials to provide such a service when it can be as easily obtained by paying an expert in the private sector to reclassify the information. A contrary rule would not only impose onerous and unnecessary burdens on public officials but would also place them in competition with private enterprise. Suffice it to say the answer seems clear and the policy unassailable.

When confronted with computerized records we are asked to apply a different rule. Appellees make a cogent and telling argument for the proposition that within reasonable bounds information in a computer should be accessible through a program designed for a particular output format at the expense of the applicant.

The information in a computer is analogous to information recorded in code. Where a public record is maintained in such a manner that it can only be interpreted by the use of a code then the code book must be furnished to the applicant. State ex rel. Davidson v. Couch, 117 Fla. 609, 158 So. 103 (1934). In Kryston v. Board of Education, 430 N.Y.S.2d 688, 77 A.D. 896 (N.Y.App.Div. 1980), test scores were a matter of public record but the identity of the persons tested were confidential. There, the agency was required to reorder or scramble the test scores making it impossible to correlate scores with the names of persons tested before furnishing the recompiled list to the applicant. At least one court has previously approved an agency agreement to provide data in a certain form when the applicant supplied the program. Minnesota Medical Ass’n v. State, 274 N.W.2d 84 (Minn.1978).

Appellees, relying on. these precedents and other authority, argue that refusal to allow an applicant to access the computer with a specially designed program will have an “adverse effect on the people’s right to know about the inside activities of their government.” They quote a Massachusetts case in support of that argument as follows:

The manner in which data are collected and stored in a carefully programmed computer has major implications for the manner in which they can later be used. Control over the collection, processing, and dissemination of data is thus at least indirect control over the information processed and the activities of personnel engaged in its collection and use.

Opinion of the Justices, 365 Mass. 639, 309 N.E.2d 476, 481 (1974).

While we do not disagree with the underlying policy espoused by appellees and alluded to by the Massachusetts court, we recognize that there are competing interests that deserve consideration. The adversaries are not always David and Goliath or the embattled taxpayer against the omnipotent bureaucracy. There will be those with an ax to grind, a personal grudge or some other single interest to advance, making their demands for access to public records. In such cases access remains mandated by law as well as by sound public policy. An absolute rule permitting access to computerized records by a specially designed program could well result in a tremendous expenditure of time and effort for the mere sake of translating information readily and inexpensively available in one format into another format more suitable to the applicant’s particular purposes. Simply requiring that the applicant pay the direct costs involved in the process does not recoup the wasted time or complete the other tasks that could have been accomplished but for the special project. It is not the intent of the law to put public officials in the business of compiling charts and preparing documentary evidence. The intent is rather to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers.

We, therefore, adopt the rule that access to computerized records shall be given through the use of programs currently in use by the public official responsible for maintaining the public records. Access by the use of a specially designed program prepared by or at the expense of the applicant may obviously be permitted in the discretion of the public official and pursuant' to Section 119.07(1). In the event of refusal of the public official to permit access in this manner, the circuit court may permit access pursuant to the same statutory restraints where:

(1) available programs do not access all of the public records stored in the computer’s data banks; or

(2) the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or

(3) for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or

(4) the court determines other exceptional circumstances exist warranting this special remedy.

We therefore reverse that portion of the order finding appellants at fault as being premature and not supported by the record. We also reverse the mandatory injunction . and remand for rehearing of the evidence on that issue and the entry of an order, if appropriate, based upon findings consonant with the factors outlined in our opinion. No other issues are ripe for decision at this time.

REVERSED AND REMANDED.

DOWNEY and DELL, JJ., concur.


author: DANAHY, Judge.

text:
    Roger VICTORY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1608.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant stole some tractor-trailers in Pasco County. On the same date, he took the trailers to Manatee County and sold them to Ramon Garcia for $4,500 in cash and a $3,000 note. The defendant was convicted of grand theft in Pasco County. This appeal arises from Manatee County, where the defendant was charged with dealing in stolen property and grand theft. The grand theft charge was based on the defendant’s obtaining money and a note from Garcia by falsely representing that he had clear title to the trailers. The defendant’s motion to dismiss the charges in Manatee County was denied. The defendant then pled nolo contendere reserving his right to appeal the denial of the motion to dismiss. We affirm in part and reverse in part.

Section 812.025, Florida Statutes (1981), forbids convictions for both theft and dealing in stolen property in connection with one scheme or course of conduct. The defendant having been convicted of grand theft in Pasco County, he may not also be convicted in Manatee County for the offense of dealing in the property stolen. Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981). We reverse as to that conviction.

However, we see no impediment to the conviction in Manatee County for grand theft based upon the fact that the- defendant obtained Garcia’s money and note by falsely representing that he had clear title to the trailers. Section 775.021(4), Fla.Stat. (1981); Borges v. State, 415 So.2d 1265 (Fla.1982). Therefore, we affirm the grand theft conviction.

REVERSED in part and AFFIRMED in part.

HOBSON, A.C.J., and GRIMES, J., concur.


author: RYDER, Judge.

text:
    Herman BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-2371.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.

      Jerry Hill, Public Defender, Bartow and Rick Dalan, Asst. Public Defender, St. Pe-tersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince and Michael A. Palecki, Asst. Attys. Gen., Tampa, for appellee.
   RYDER, Judge.

Bentley appeals from his conviction for attempted murder, alleging the lower court erred in denying his counsel last argument before the jury when the only defense witnesses were court-appointed experts who gave testimony supporting appellant’s defense of insanity. We affirm.

The state charged appellant with attempted murder in violation of section 782.-04(1), Florida Statutes (1981). On January 9, 1981, appellant entered a written plea of not guilty. Prior to trial, appellant’s attorney offered a suggestion of insanity, in response to which the court appointed a psychiatrist and a psychologist to examine appellant and to report the results of their evaluation. On August 6,1981, counsel for appellant filed a notice of intention to rely on the defense of insanity and listed three witnesses by whom he expected to show insanity of the appellant at the time of the offense.

At trial, the state presented testimony of several witnesses to establish that appellant shot Mrs. Frankie Frazier without apparent reason. The record reveals that shortly after the shooting appellant went to the St. Petersburg police station, and Officer Gary Hitchcox testified that appellant told him he was angry because Mrs. Frazier had put sugar into the gasoline tank of appellant’s vehicle and because she was practicing witchcraft on her husband. At the close of the state’s case appellant moved for a judgment of acquittal, which was denied.

Counsel for appellant then requested that the court call the previously appointed experts as “court witnesses,” stating his request was made for the purpose of preserving appellant’s right to last argument before the jury. The court ruled that despite the fact the experts were appointed by the court, they would be deemed defense witnesses so far as Fla.R.Crim.P. 3.250 was concerned. After objecting to the ruling, appellant’s counsel called both experts to the stand. Mr. Mussenden and Dr. Gonzalez testified that, in their opinion, appellant was legally insane at the time of the offense during which time he believed he was shooting a witch who had placed an evil spell on him. Thereafter, appellant’s counsel announced he would not present further testimony in order to preserve his previously stated issue. The jury found appellant guilty as charged.

On appeal, appellant argues that Fla.R. Crim.P. 3.216(h) mandates that court-appointed experts be deemed court witnesses whether called by the court or either party.

Fla.R.Crim.P. 3.250 entitles the defendant to opening and concluding final argument before the jury if he offers no testimony other than his own. Appellant suggests that denial to him of concluding argument below was reversible error. Staples v. State, 298 So.2d 545 (Fla.2d DCA 1974).

We decline to read the cited rules together in the manner urged by appellant. Florida Rule of Criminal Procedure 3.216(h) provides that “[t]he experts appointed by the court may be summoned to testify at the trial, and shall be deemed court witnesses whether called by the court or either party.” This rule was intended to permit either party to cross-examine the expert by impeachment or leading questions, as is the case traditionally with witnesses called by the court. Armstrong v. State, 399 So.2d 953 (Fla.1981); Williams v. State, 353 So.2d 956 (Fla. 1st DCA 1978). Whether or not a witness is a court witness, a criminal defendant must “offer no testimony other than his own” to retain last argument. Fla. R.Crim.P. 3.250. That the court might call the witness does not negate the fact that the testimony was offered on behalf of appellant. Appellant did not offer “no testimony”, as the experts presented testimony on behalf of appellant at his request, court-appointed or not. Appellant thus lost the right to last argument before the jury.

AFFIRMED.

OTT, C.J., and HOBSON, J., concur.

      . Whether this suggestion of insanity was a motion in conformity with Fla.R.Crim.P. 3.210 or 3.216 is unknown as no such motion or “suggestion” was made a part of the record herein. We come by this information through a statement made by appellant’s then counsel, a Mr. Dillinger, during argument on the motion to have two experts called as “court witnesses.”

      . The list included the names of the two experts and the mother of the appellant. We further note that it appears that appellant’s counsel failed to comply with Fla.R.Crim.P. 3.210(c). This rule requires the giving of notice to rely upon the defense of insanity no later than fifteen days after arraignment or written plea of not guilty. Appellant’s written plea of not guilty was filed on January 9, 1981, some seven months before the notice of intent to rely on the defense of insanity was filed. Perhaps good faith or other excusable reason was shown to the judge for this delay, but we know not what by this record. As the parties have not addressed this, we discuss it no further.


author: PER CURIAM.

text:
    Woodson McDANIEL, Appellant, v. Richard ONKEY, Appellee.
    No. 82-48.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.
    Hugh Sawyer, St. Petersburg, for appellant.
    Jana Y. Jay of Napier & Donovan, Naples, for appellee.
   PER CURIAM.

We find no error in the order of the trial court dismissing this action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Neither do we find any abuse of discretion in the order of the trial court denying the motion to vacate the order of dismissal or reinstate the action. However, the dismissal “with prejudice” was improper.

There is no authority for a dismissal with prejudice when such dismissal is based solely on the failure to prosecute. See Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980), and Tapper v. Taunton, 371 So.2d 595 (Fla. 1st DCA 1979). We therefore strike the words “with prejudice” from the order of dismissal. As so amended, we affirm the order of dismissal and the order refusing to vacate the dismissal or reinstate the action.

OTT, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: OTT, Chief Judge.

text:
    M.O. LOGUE SOD SERVICE, INC., Appellant, v. Alice Susan LOGUE, Appellee.
    No. 82-753.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.
    James M. Nixon, II and Douglas A. Wallace, Bradenton, for appellant.
    Walter R. Talley and William H. Meeks, Jr., Bradenton, for appellee.
   OTT, Chief Judge.

Within a period of slightly less than six months (1) appellee’s former husband suddenly disappeared from the family home, titled in his name alone, leaving all of his possessions with appellee and their minor child, (2) appellee filed for dissolution of marriage, (3) appellant obtained a judgment against the husband, and (4) the court in the dissolution proceeding awarded the parties’ home to appellee as lump sum rehabilitative alimony “and/or” a special equity. In an action against appellant to quiet her title to this property, appellee established (1) that the husband was family head prior to his departure, and (2) that she and the minor child continued to reside on the property until it was awarded to her. In support of its claim that the homestead was legally abandoned by the husband, appellant argues here that husband’s headship terminated immediately upon his disappearance from his home and family. Appellant relied almost exclusively on the fact that, after his departure, no support was furnished the family by the husband other than that afforded by his personal possessions and the shelter of the home. The wife was forced to subsist on welfare and food stamps. She borrowed money from her mother to meet the mortgage payments on the home until she could secure title through the dissolution proceedings. The trial judge concluded that the evidence did not establish abandonment of the homestead by the husband, that the husband continued to be the family head following his departure, and that homestead in him continued until the property was awarded to appellee.

Neither of the parties has found a decision involving these precise facts and our own research has disclosed none.

We start with the following premises: (1) the homestead law is to be liberally construed for the benefit of those whom it was designed to protect, LaGasse v. Aetna Insurance Co., 213 So.2d 454, 459 (Fla.2d DCA 1968); (2) when homestead status has been acquired, it continues until the homestead is abandoned (normally evidenced by the establishment of a domicile at some other place) or alienated in the manner provided by law, Marsh v. Hartley, 109 So.2d 34, 38 (Fla.2d DCA 1959); and (3) continuous uninterrupted physical presence is not required to create a homestead. Poppel v. Padrick, 117 So.2d 435, 436-437 (Fla.2d DCA 1959).

We are impressed with the circumstances attending the husband’s departure and the relatively short period of time which elapsed between his departure and the entry of judgment in the dissolution action. On October 18, 1980, the husband left the parties’ home saying he was going to the nearby 7-Eleven and would be right back. He did not take his clothing, automobile, or other possessions or close his bank account. Appellee filed for dissolution of marriage on November 3, 1980, for the primary purpose, it appears, of securing the title to the home for the support and benefit of herself and the minor child. Appellant obtained a default final judgment against the husband on December 24, 1980. Appellant is owned by the father of appel-lee’s former husband, and the husband either worked for or certainly was very closely associated with his father’s business until his abrupt and apparently totally unexpected disappearance. The final judgment in dissolution was entered April 16, 1981.

Under the circumstances of this case, we are unable to fault the finding and conclusion of the trial judge that headship of the family continued in the husband from the date of his departure until the entry of judgment dissolving the marriage. He, as the trier of fact, obviously concluded that appellant’s evidence fell short of establishing abandonment or loss of the constitutional protection of the homestead for the benefit of the wife and minor child.

The judgment is AFFIRMED.

HOBSON and GRIMES, JJ., concur.


text:
    David Collins LONG, Appellant, v. STATE of Florida, Appellee.
    No. 82-770.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.

      Gerald W. Medeiros, Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Although Miller v. State hasn’t been on the books as long as one might suspect, surely the message it carries should soon be disseminated to the officer in the field.

Long appeals an order denying his motion to suppress evidence seized during an inventory of the vehicle driven by him. The inventory of the vehicle’s contents occurred subsequent to the impoundment of the automobile which was seized also subsequent to Long’s arrest for making an illegal U-turn and, minutes thereafter, for failure to produce the vehicle’s certificate of registration.

When asked to produce the registration certificate, the record reveals Long stated the vehicle belonged to his sister, and he furnished the police with her name and place of work. Long volunteered, however, that his sister might be out to dinner at that point in time. Without further ado, the officer chose to transport Long to jail and ordered another unit to take charge of the vehicle for impoundment. The inventory was conducted and the contraband discovered. The charges of possession of cocaine and drug paraphernalia were added to Long’s already growing list of charges.

Mr. Justice Overton, after a comprehensive review of the law relating to inventories in connection with impoundment, wrote in Miller with great clarity that:

[Wjhat we hold is that an officer, when arresting a present owner or possessor of a motor vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. An inventory search of a motor vehicle without such advice or consultation to a present owner or possessor upon arrest results in an unreasonable search under the United States and Florida Constitutions and must be excluded under the Florida constitutional rule.

Miller, supra, at 1314.

Nowhere in the record does it appear the arresting officer complied with Miller. Long’s statement regarding ownership of the vehicle by his sister and the furnishing of her address were made in response to inquiries as to ownership, not as a response to a Miller inquiry.

Because the officer failed to advise Long of his intention to impound the vehicle unless Long could provide a reasonable alternative, the impoundment was improper. See also Sanders v. State, 403 So.2d 973 (Fla.1981); K.J.B. v. State, 420 So.2d 114 (Fla.2d DCA 1982); Judge v. State, 419 So.2d 1171 (Fla.2d DCA 1982); and State v. Filter, 414 So.2d 1127 (Fla.2d DCA 1982). Therefore, the subsequent warrantless search of the vehicle and seizure of the physical evidence constituted an unreasonable search and seizure, requiring exclusion from evidence that contraband so seized. The failure of the trial judge to so order was error. The order denying suppression is REVERSED, the judgment and sentence is set aside, and the matter is REMANDED for further proceedings consistent with this opinion.

BOARDMAN, A.C.J., and SCHEB, J., concur.

      . 403 So.2d 1307 (Fla.1981).

      . The sister worked evenings at a dance studio. The time of the stop was 7:00 p.m.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. William C. McCONNELL, Appellee.
    No. 80-100.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    George E. Tragos, Clearwater Beach, for appellee.
   GRIMES, Judge.

This is one of two cases in which we stayed the appeals pending the supreme court’s decision in State v. Rickard, 420 So.2d 303 (Fla.1982). Ironically, we now reach opposite conclusions because of certain facts which distinguish the two cases.

The police received an anonymous phone call advising that appellee was growing marijuana in his backyard. A community center immediately adjoined appellee’s property with only a modest depression used for drainage separating the parcels. Without traversing appellee’s property, the police walked to a point near the rear of the community center building. From that point they saw marijuana plants growing in appellee’s backyard about thirty yards away. Although there were a few bushes and shrubs in appellee’s yard, the officers had an unobstructed view. The plants, which were growing near appellee’s house, were seven to eight feet tall. The officers then went to appellee’s residence and seized the marijuana plants. They had no search warrant, and there is no indication of any exigent circumstances which required immediate action on their part. In the ensuing prosecution for possession of marijuana, the court granted appellee’s motion to suppress.

In Rickard, the police also viewed marijuana in the defendant’s backyard from a point where they had a legal right to be. However, in Rickard the defendant had surrounded his yard with a chain link fence and erected a plywood partition which obstructed the view of his yard from the only nearby house. The police saw the marijuana by going into a grove owned by out-of-state residents which was located behind the defendant’s property. Rather than drawing a bright-line rule, the court held that cases involving the warrantless seizure of contraband seen by police in the defendant’s backyard from a point adjacent to his property must be decided upon whether the property owner has exhibited an actual expectation of privacy. The court ruled that Rickard had demonstrated an expectation of privacy by virtue of his lack of proximity to neighbors and the erection of his chain link fence and partition.

Despite having suppressed the seizure upon the particular facts of that case, the supreme court in Rickard clearly recognized the continued viability of Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (Fla.1978), in which the seizure of a backyard cultivation of marijuana behind a chain link fence was upheld because the police had an unobstructed view from a neighbor’s yard. The argument for the legality of the seizure in the instant case is at least as strong. While the sloping drainage ditch clearly marked the edge of appellee’s property, neither it nor the several bushes in the backyard obstructed the view from the neighboring community center. The police did not go on appellee’s property until they had clearly identified the plants as marijuana. The appellee can hardly be said to have a reasonable expectation of privacy when he chooses to openly grow eight foot marijuana plants next to a public building. Consequently, we reverse the suppression order and remand the case for further proceedings.

HOBSON, A.C.J., and SCHEB, J., concur.

      . The other case is State v. Rowe, 422 So.2d 75 (Fla.2d DCA 1982).


text:
    STATE of Florida, Appellant, v. James R. ROWE, Appellee.
    No. 81-346.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.

      Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellee.
   GRIMES, Acting Chief Judge.

The state appeals from an order suppressing the seizure of marijuana from the ap-pellee’s backyard. We stayed this appeal pending the supreme court’s decision in State v. Rickard, 420 So.2d 303 (Fla.1982).

One of appellee’s neighbors advised the police that he thought appellee was growing marijuana in his backyard. Appellee’s yard was surrounded by a chain link fence. The police were unable to see any marijuana from the complainant’s property. They then went to the house on the opposite side of appellee’s property and, with the owner’s permission, viewed the appellee’s backyard. The police made their observations from inside the neighbor’s house because appellee and another person were in the yard. Even from this vantage point the police could not identify certain growing plants as marijuana with the naked eye. However, with the use of binoculars, one of the policemen could make out marijuana growing in the yard at a point about 140 feet away. The marijuana plants were from two to twelve inches tall and were growing in the middle of a vegetable garden. Thereupon, the police seized the marijuana. They did not have a search warrant, and there was no suggestion of any exigent circumstances which might have required the police to take immediate action.

The supreme court in Rickard held that cases of this type, in which the police view contraband in a backyard from a point at which they have a legal right to be, must be determined upon a case by case basis. The criterion for the decision is whether the defendant manifested an actual expectation of privacy. In Rickard the court upheld the suppression of the seizure of marijuana from the defendant’s backyard because he had surrounded his house with a chain link fence and had erected a partition which obscured the view of his only neighbor.

In the instant case, we think appellee manifested a comparable expectation of privacy which must be preserved. As in Rick-ard, the existence of the chain link fence was an indicium of a desire for privacy. Moreover, the marijuana was planted in the midst of a vegetable garden. The police could not even identify the plants as marijuana without the use of binoculars. Unlike the case of State v. McConnell, 422 So.2d 74 (Fla. 2d DCA 1982), the marijuana was not readily visible from adjacent property. We need not reach the question of whether the police could have obtained a search warrant based upon the information then known to them because they did not seek to do so. See Newberry v. State, 421 So.2d 546 (Fla. 4th DCA 1982). We therefore uphold the order of suppression.

AFFIRMED.

SCHEB and RYDER, JJ., concur.


text:
    STATE of Florida, Appellant, v. John Wayne LEE, Appellee.
    No. 81-754.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Andrew Shaw of Fergeson, Skipper, Shaw & Kusic, and Jordan Wallach of Sherr & Wallach, Sarasota, for appellee.
   DANAHY, Judge.

The appellant, John Wayne Lee, was charged in circuit court with two offenses, including a charge of driving while under the influence of alcohol. At the time of his arrest, a breathalyzer test was administered pursuant to the statutory procedure contained in Chapter 322, Florida Statutes (1979), which authorizes the test on an arrested person. Sixty days after the breathalyzer test, Lee first requested a sample of his breath taken at the time of his arrest when he filed a motion to produce the sample. The trial judge ordered the state to produce the breath sample. The state admitted none had been retained. The trial judge then granted Lee’s motion to suppress the results of the state’s blood alcohol level breath test on the ground that his right to due process of law under our federal and state constitutions had been violated by the failure of the state to collect and preserve a sample of his breath. The state appeals from that nonfinal order. We reverse.

Lee asserts that the question we must resolve is whether due process of law requires that the State of Florida collect and preserve a sample of Lee’s breath taken at the time of the breathalyzer test and make it available to him for his own independent testing. The state contends, we think rightly, that this record contains no evidence on which either the trial court, or this court on review, can explore and answer that question.

We note initially that Lee’s motion to produce was directed to an actual sample of his breath. Lee did not argue his need for that particular ampoule of chemicals through which his breath was passed and in which the action of the alcohol contained in the breath produces chemical changes detected by the breathalyzer machine. It is apparent from this record that the breathalyzer machine reveals an analysis of the blood alcohol level, but it does not preserve the actual breath.

Lee’s argument on appeal is that, based upon due process grounds, the state has an affirmative duty to preserve such a breach sample for later independent testing, or be precluded from introducing its own test results.

As a general rule it is said that a defendant is denied a fair trial where the state intentionally or negligently destroys or suppresses a sample of an illegal substance so that the defendant is precluded from testing the most critical inculpatory evidence against him while the state is allowed to introduce essentially irrefutable testimony of the most damaging kind. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979). However, we do not view the instant case as one which comes under such a rule.

Although some courts have held that failure by the state to automatically preserve a breath sample is tantamount to suppression of evidence, those holdings have come where the defendant has shown that the preservation was scientifically possible. Garcia v. District Court, 21st Judicial District, 197 Colo. 38, 589 P.2d 924 (1979); Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). But see State v. Young, 228 Kan. 355, 614 P.2d 441 (1980). Lee, who was the moving party, had the burden of making a showing on the record that there are recognized scientifically developed means by which a breath sample can be preserved for later testing. He failed to do so when he offered no evidence at the hearing. It is impossible for this court to equate the mere failure by the state to encapsulate and preserve a breath sample to a destruction or suppression of the evidence absent a showing in the record to support a finding that the breath samples could be effectively preserved for later independent testing.

It is clear that the trial judge based his order suppressing the breathalyzer test results on due process grounds. In a judicial application of the due process clause, a balancing of relevant and conflicting factors is a necessary process. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Thus, to make a determination whether there has been a violation of the appellee’s right of due process, we must give consideration to the relative state and individual interests. On the record before us there was no evidence from which the trial court could make the determination that Lee was denied his right to due process of the law. Therefore, we have no findings by the trial judge to review. We have found no case which has considered the defendant’s due process contention concerning the state’s failure to produce a breath sample without evidence and findings at the trial level that it was scientifically possible for the state to collect and preserve such a sample. See State v. Larson, 313 N.W.2d 750 (N.D.1981); People v. Peed, 92 Ill.App.3d 1115, 48 Ill.Dec. 421, 416 N.E.2d 694 (1981). In this case such evidence is lacking, and we may not hypothesize in a factual vacuum that the mere failure by the state to retain a sample of Lee’s breath and furnish it later at his request constitutes a denial of his right of due process. Therefore we must reverse the order of the trial court.

REVERSED.

SCHEB, C.J., and SCHOONOVER, J., concur.

      . That chapter includes section 322.261(2)(c) which allows an arrestee to also choose any other person to administer an additional test for independent testing. Lee did not request or have an additional test administered to him.

      . Unlike the statutes of some states, ours does not require the state to collect and preserve either the ampoule used in the test or a breath sample.

      . In State v. Phillipe, 402 So.2d 33 (Fla. 3d DCA 1981), the defendant also sought the used ampoule.

      . The test results revealed a blood alcohol content of .07 percent, a “neutral” reading in the three levels of presumptions established by section 322.262(2)(a) to (c).

      . Of course, nothing we have said should be construed to indicate how we would rule upon the issue argued before us should we be presented with a case with evidence and a fully developed record ripe for decision.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Charles Roger FRY, Appellee.
    No. 81-1687.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki and William I. Munsey, Asst. Attys. Gen., Tampa, for appellant.
    John D. Fernandez, P.A., Clearwater, for appellee.
   SCHEB, Judge.

The state charged Charles Roger Fry with grand theft of his employer’s gold. Fry moved to dismiss the charges. The state demurred with specific denials of allegations it regarded as conclusory and added allegations which tended to implicate Fry in the offense charged. The trial court granted the motion and discharged Fry. We reverse.

The pleadings disclosed that Fry and his codefendant, James Bouvier, were close friends and worked for the same company. Bouvier, as head of security, had access to a vault where their employer stored vials of gold paste. Bouvier allegedly removed sixteen such vials and substituted lead slugs for the gold paste. Fry’s gold coated thumbprint was discovered on the bottom of one of the sixteen lead slugs.

Fry’s motion to dismiss alleged that the case against him was wholly circumstantial. He alleged he had no access to the vault where the gold vials were stored and contended the state was unable to prove that his fingerprint had been impressed under any incriminating circumstances.

The state’s demurrer acknowledged that Fry did not have access to the vials of gold paste. Nevertheless, the state pointed out that it could establish that Fry’s fingerprint was impressed in gold of the type stolen, that the impression was on the bottom of a lead slug, and that it had been placed there before the lead slug had been substituted for one of the stolen vials of gold paste.

The trial court proceeded to make factual findings and concluded that there was “no evidence whatever ... that the Defendant was a knowing participant in the removal of the gold from the vault by the co-defendant ... or for that matter that he ... was present at the time the crime was committed.” Furthermore, “[t]he state’s case fails to negate the reasonable hypothesis of innocence that the Defendant touched the lead slug ... innocently while the gold was in possession of the co-defendant

We hold the trial court erred in making findings of fact. Fry’s motion was filed under Florida Rule of Criminal Procedure 3.190(c)(4), and it is not the trial court’s function to make factual determinations in this context. State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. Rogers, 386 So.2d 278 (Fla. 2d DCA), cert. denied, 392 So.2d 1378 (Fla.1980). Moreover, it is not the function of the trial cour-t to determine whether the state’s evidence excludes all reasonable hypotheses of innocence. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). Rather, in considering the motion, the trial court must view the facts in the light most favorable to the state. State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981).

Construed in the light most favorable to the state, Fry’s thumbprint is evidence from which the finder of fact could infer that he had some involvement with the stolen gold. The question of whether the state’s evidence excludes any reasonable hypothesis of Fry’s innocence is for the finder of fact to determine.

We vacate the order which granted the defendant’s motion to dismiss and which discharged him from further prosecution. We remand for further proceedings consistent with this opinion.

HOBSON, A.C.J., and BOARDMAN, J., concur.


author: RYDER, Acting Chief Judge.

text:
    James CONNER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2589.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Jerry Hill, Public Defender and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Conner appeals from his convictions for burglary and grand theft, alleging the trial court erred in sentencing him to four years probation after finding he should be classified a youthful offender. We agree.

The state charged appellant with burglary and grand theft. The court found appellant guilty as charged after a bench trial. When pronouncing sentence for the burglary offense, the court imposed a four-year prison term and declared appellant to be a youthful offender. For the grand theft charge, the court placed appellant on four years probation to run consecutive to the prison term. The written judgment and sentence for both offenses determined appellant to be a youthful offender.

Appellant correctly argues that while the four-year prison term is sanctioned under section 958.05(2), Florida Statutes (1981), the maximum probation sentence permitted after a youthful offender classification attaches is two years community control. § 958.05, Florida Statutes (1981). We hold the lower court erred in determining appellant to be a youthful offender and failing to sentence accordingly. We also note that appellant’s testimony indicates that appellant was over twenty-one years of age at the time the offenses were committed. In order to be eligible for youthful offender classification, the defendant’s crime must be committed before his twenty-first birthday. § 958.04, Florida Statutes (1981). Thus, appellant below was not eligible for the youthful offender classification.

The sentences imposed are VACATED, and the case REMANDED for resentenc-ing.

CAMPBELL and SCHOONOVER, JJ., concur.


author: CAMPBELL, Judge.

text:
    William V. HIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-141.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Nicholas G. Schommer of Nicholas G. Schommer, P.A., Sebring, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

While driving down a public street in Lake Placid, Florida, appellant, William Higgins, and his companion, Daniel Laco-ney, stopped to ask directions. Laconey, who was driving, parked the car in the northbound lane of traffic, exited, and walked across the street seeking directions from a man who was standing in his front yard. As Laconey started back towards the car, appellant slid over to the driver’s seat and backed up, intending to pick up Laco-ney. While doing so, he struck a mailbox. Someone in the neighborhood reported the incident, and Trooper Victor Gullatt of the Florida Highway Patrol responded, followed soon thereafter by Deputy Elijah Smith.

Gullatt examined the car and the mailbox and concluded that the incident did not amount to an accident. However, he also noticed that appellant and Laconey were very unsteady on their feet. He concluded that they were intoxicated and incapable of further driving. Accordingly, Gullatt and Smith, intending to place the men in protective custody under the Myers Act, ordered them into Deputy Smith’s cruiser. Trooper Gullatt asked Mr. Reeber, the owner of the mailbox, if they could leave the car in his driveway and when Reeber refused, Gullatt called a wrecker and commenced a standard inventory search. He found two baggies of marijuana and three small packets of cocaine in the car. He then arrested appellant and Laconey, and the state later charged them in two counts with possession of controlled substances. After denial of his motion to suppress the controlled substances, appellant pled nolo contendere reserving his right to appeal the denial of his motion.

We first must decide whether the search and seizure can be sustained under the recent decisions of the United States Supreme Court in United States v. Ross, -U.S.-, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), or New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). We conclude that they cannot. Officer Gul-latt had no probable cause to believe the vehicle contained contraband sufficient to come within the provisions of Ross. Nor was there any contention that the search was made incident to appellant’s arrest so as to invoke Belton. When Officer Gullatt arrived on the scene, he was responding to a traffic accident. Although he believed appellant and his companion were intoxicated “on something”, he also testified that his subjective intent when he conducted the search was based on a desire to inventory the vehicle’s contents preparatory to impounding it. Therefore, neither Ross nor Belton applies. There is also no indication in the record that appellant or his companion was so intoxicated to the point of being unable to comprehend alternatives to im-poundment had any alternatives been explained to them.

In Miller v. State, 403 So.2d 1307 (Fla.1981), the court stated that an arresting officer must advise an arrestee of possible alternatives to impoundment. The officers did not do so here, and because they did not, the subsequent inventory search of the car was improper. See K.J.B. v. State, 420 So.2d 114 (Fla. 2d DCA 1982). Therefore, the trial court erred in denying appellant’s motion to suppress.

REVERSED and REMANDED.

GRIMES, A.C.J., and SCHEB, J., concur.


text:
    Marian Letts BALDWIN and Colonial Penn Insurance Company, Appellants, v. Mary TIETBOHL and John Tietbohl, her husband, Appellees.
    No. 82-159.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.

      Frank E. Strzelec, of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Alan H. Prather of Mann & Fay, Chartered, Bradenton, for appellees.
   PER CURIAM.

Although appellee was proceeding on a “through” street and did not see appellant who was proceeding on an intersecting “stop sign” street until appellant’s vehicle was directly in front of appellee’s vehicle, this does not conclusively establish an absence of appellee’s contributory negligence on motion for summary judgment. The issue of appellee’s contributory negligence, if any, is one of fact under all the facts and circumstances. See U.S. Fire Insurance Co. v. Progressive Casualty Insurance Co., 362 So.2d 414 (Fla. 2d DCA 1978).

Accordingly, the final summary judgment is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

OTT, C.J., and HOBSON and DANAHY, JJ., concur.


text:
    Anthony J. CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-325.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Clayton appeals from the revocation of his probation. We reverse.

The state originally charged appellant with dealing in stolen property. Appellant pled nolo contendere, and the court placed him on three years probation. Within that period, the state filed an affidavit and warrant alleging appellant violated the probation condition proscribing “violating any law,” as evidenced by his arrest for burglary.

At the hearing on revocation, the state elicited testimony from two police officers who investigated the burglary and arrested appellant. The state, however, failed to produce the testimony of the witness to the burglary who identified appellant or the owner of the burglarized premises. Thus, the only evidence adduced at the hearing below that there was a burglary or that appellant allegedly committed it was the out-of-court statements of the witnesses which were given to the court through the testimony of the police officers. Although hearsay evidence is admissible during a probation revocation hearing, we hold that the revocation of probation below was improper in that it was based solely on this hearsay testimony. Clemons v. State, 388 So.2d 639 (Fla. 2d DCA 1980); Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1979); Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977).

Accordingly, we REVERSE the order of revocation. We note further that this reversal does not bar a second revocation hearing based on another affidavit alleging the same violation. Clemons v. State, supra.

CAMPBELL and SCHOONOVER, JJ, concur.