author: HURLEY, Judge. MOORE, Judge,

text:
    GORE NEWSPAPER COMPANY, Appellant, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    Nos. 78-1947, 78-2473.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 18, 1981.
    Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   HURLEY, Judge.

This is a consolidated appeal from two final orders of the appellee, Department of Revenue, which concern the imposition of a use tax assessment against the appellant, Gore Newspaper Company. The Department based the assessment on Section 212.-06(l)(b), Florida Statutes (1975) and Rule 12A-1.34(3), Florida Administrative Code.

Gore initially challenged the assessment by filing a “Petition for Formal Proceeding” with the Department pursuant to Section 120.57, Florida Statutes (1975). Subsequently, it filed a challenge to Rule 12A-1.-34(3), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes (1975). The proceedings were consolidated and conducted before a hearing officer whose recommended orders were adopted by the Department as final orders. These final orders upheld the validity of the Rule, but found the Rule to be an invalid basis for the assessment in this particular case. The assessment was nevertheless affirmed on the basis of Section 212.06(l)(b).

Since the Rule was found to be inapplicable in this case, appellant chose not to pursue its contention as to the Rule’s general invalidity. It did, however, present several arguments concerning Section 212.06(l)(b). We limit our discussion to one, i. e., whether Section 212.06(l)(b) encompasses a use tax on materials which are printed by the taxpayer for immediate consumption by the taxpayer.

Factually, the setting is clear. Gore is a newspaper publisher with some forty departments within the corporation. One of these is a “letter shop” or print shop which prints stationery, memo pads, forms, run sheets, etc. for the various departments. Approximately 10% of the work performed by the letter shop is for outside customers who pay a sales tax on the items they purchase.

Section 212.06(l)(b) provides in pertinent part:

Any person who manufactures, produces, compounds, processes or fabricates in any manner tangible personal property for his own use shall pay a tax upon the cost of the product manufactured, produced, compounded, processed or fabricated....

The Department contends that Gore’s arrangement as to the printed material constitutes a use of tangible personal property manufactured, produced, compounded, processed or fabricated by Gore and, therefore, Gore is liable for the use tax. We agree.

Section 212.02(8) defines the term “use” to mean and include “the exercise of any right or power over tangible personal property incident to the ownership thereof. .. . ” On the other hand, the word “consume,” while not defined in Chapter 212, means “to do away with completely.” Webster’s New Collegiate Dictionary (1980). Thus, as legislatively defined, “use” is an all-embracing concept which includes the act of consumption — the final use.

Reading Section 212.06(l)(b) in conjunction with the above definitions compels the conclusion that appellant engaged in a taxable use when it printed stationery, memo pads, forms, etc. See, e. g., Shoppers Guide Publishing Co. v. Woods, 547 S.W.2d 561 (Tenn.1977); cf. Klosters Rederi A/S v. State Dep’t of Revenue, 348 So.2d 656 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1248 (Fla.1978).

Moreover, this is the only result which is consistent with the recognized purpose of a use tax, i. e., to complement the sales tax so as to make uniform the taxation of the property subject to the tax. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959). Presumably all memo pads, for example, are subject to sales tax at the time of their retail purchase. Not so, however, with appellant’s memo pads since they were manufactured and utilized in house. Consequently, a use tax is necessary to assure uniform taxation and Section 212.06(l)(b) provides ample justification for its imposition. Accordingly, the orders appealed from are affirmed.

AFFIRMED.

BERANEK, J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. The majority holds that the word “use” as legislatively defined is “an all-embracing concept which includes the act of consumption — the final use.” At first blush I would agree; however, the language used by the legislature throughout Chapter 212, Florida Statutes (1975) compels me to a contrary conclusion.

It is a cardinal rule of statutory construction that the legislature intended, and had knowledge of, the language it chose in drafting a statutory provision. Every word in a statute is presumed to have meaning and the legislature is presumed to have used only that amount of language which is necessary to convey its intent. Thus, there is a strong presumption against the legislature’s use of surplus language. As stated in 30 FlaJur., Statutes, Section 96:

Where the court uses exact words or exact phrases, though in different statutory provisions, the court may assume that they were intended to mean the same thing. By the same token, the use by the legislature of certain language in one instance and wholly different language in another indicates that different results were intended, and the courts have so presumed. Under this rule, where language is used in one section of a statute different from that used in other sections of the same chapter, it is presumed that the language is used with a different intent. Accordingly, the presence of a provision in one portion of a statute and its absence from another are an argument against reading it as implied by the section from which it is omitted, (footnotes omitted).

Precise language is especially applicable to taxing statutes:

The intention of the legislature with respect to tax statutes must ordinarily be discovered from the language of the act. It is a cardinal rule that statutes imposing taxes must be clear and specific, and this rule governs their construction; therefore, unless a tax is imposed in clear and certain terms no tax is considered imposed. Taxes must, to be sustained in any case, come clearly within the letter of the statute, and may be collected only within the clear definite boundaries recited by statute. A statute may not be construed to impose a tax unless its terms definitely so provide. Similarly, classifications not clearly within the terms of a taxing statute will not be required to carry the burden imposed by it. This then prevents the taxation of any individual or activity unless it clearly appears that such person or activity belongs to a class made subject to the tax by legislative authority. It is presumed that the legislature has so shaped the law as to bring within it everything that was intended to be made subject to the tax. 31 Fla.Jur., Taxation, § 56.

Any doubts or ambiguities contained in a taxing statute are to be resolved in favor of the taxpayer. State v. Green, 132 So.2d 761 (Fla. 1961).

In discussing the issue before us, we must also bear in mind the purpose for which a use tax is imposed. As stated in United States Gypsum Company v. Green, 110 So.2d 409 (Fla.1959):

The primary function of the use tax is to complement the sales tax so as to make uniform the taxation of property subject to the tax, whether produced, purchased and used in this State, or produced and purchased in another state or country, but used in this state.

A use tax, such as the one involved here, is levied for the purpose of complementing the state sales tax. The tax was also developed as a protective measure for the benefit of retail merchants in the taxing forum who would be placed at a competitive disadvantage as against merchants and others who purchased their wares from a nontax-ing state. The objective of the tax is, of course, to produce revenues for the operation of government, and at the same time, insure that all of those who operate within the state will pay their fair share. Scripto, Inc. v. Carson, 105 So.2d 775 (Fla.1958), aff’d, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960).

With these principles thus stated, I now consider whether the products of the letter shop were created for appellant’s “use”, or whether they were created for appellant’s “consumption”. “Use” is defined in Section 212.02(8) of the same statutory scheme as “the exercise of any right or power over tangible personal property incident to the ownership thereof, or interest therein, except that it shall not include the sale at retail of that property in the regular course of business”. “Consumption”, though employed often in the language of Chapter 212, is never defined as a statutory term of art. This being the case, I must resort to the basic rule of statutory construction that when words of common usage are used in a statutory enactment, without being given a technical meaning by the enactment, such words should be construed in their plain and ordinary sense. Tatzel v. State, 356 So.2d 787 (Fla.1978); 30 Fla.Jur., Statutes, § 87. The supreme court of one of our sister states struggled with the definitions to be accorded the words “use” and “consumption” in Berry-Kofron Dental Laboratory v. Smith, 345 Mo. 922, 137 S.W.2d 452 (1940), where it stated:

We have said, “One of the cardinal rules of statutory interpretation and construction is that words in common use are to be construed in their natural, plain, and ordinary signification and acceptation.” Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 989, 13 S.W.2d 628, 638. The words “use” and “consumption” are not technical words having a peculiar meaning in law but words in common use and as employed in the statute must be given their plain, ordinary meaning.
Webster’s New International Dictionary, 2nd Ed., defines the noun “use” as “Act of employing anything, or state of being employed; application; employment, as the use of a pen; his machines are in use;” “The fact of being used or employed habitually; usage, as, the wear and tear resulting from ordinary use.” Other suggestive definitions do not seem here appropriate. Consumption is defined as “Act or process of consuming; waste; decay, destruction; also the using up of anything, as food, heat or time.” “Consume” is defined as meaning to destroy the substance of — to use up, expend, waste, — to eat or drink up (food). Defining the word “use” as employed in a statute imposing a retailers’ occupation tax the Illinois Supreme Court said in Revzan v. Nudelman, 370 Ill. 180, 185, 18 N.E.2d 219, 222, “As employed in the statute here under consideration ‘use’ means a long-continued possession and employment of a thing to the purpose for which it is adapted, as distinguished from a possession * * * that is merely temporary or occasional. See, 137 S.W.2d at 454, 455.

The distinguishable definitions to be given these two words was also discussed in an annotation at 139 ALR 372, which states:

It is to be noted that many taxing statutes or ordinances define a sale at retail as a transfer of title to tangible personal property for consumption or use and not for resale. The word “use” as found in such statutory provisions has been defined as a long-continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession and employment that is merely temporary or occasional. Bradley Supply Co. v. Ames (1934) 359 Ill. 162, 194 N.E. 272; Revzan v. Nudelman (1938) 370 Ill. 180, 18 N.E.2d 219; P. H. Mallen Co. v. Department of Finance (1939) 372 Ill. 598, 25 N.E.2d 43. And see Howitt v. Street & S. Publications (1938) 276 N.Y. 345, 12 N.E.2d 435, wherein it is said: “We believe that the ordinary interpretation of the word ‘use’ is to assert possessory interest in the article for some length of time.”
And in Albuquerque Lumber Co. v. Bureau of Revenue (1937) 42 N.M. 58, 75 P.2d 334, the court said: “The term ‘consume’ or ‘consumption’ does not always imply an immediate destruction or ‘eating up’ or extermination; it may as well, and often does, contemplate the ultimate use to which all intermediate ones lead.” See, 139 ALR at 376-377.

Although we are bound by the rather broad definition of “use” contained within Section 212.02(8), I am not constrained to find that appellant’s employment of the paper products from its print shop constituted a “use” vis-a-vis a “consumption”. After considering the definitions of “consumption” cited above, I am more inclined to find that appellant’s activities in regard to the paper products constituted a “consumption” rather than a “use” of such products as broadly defined by Section 212.02(8). Certainly, the majority of appellant’s products were “used up”, “expended”, and indeed, “destroyed” by their immediate and initial utilization. Even those products that were not immediately expended were not available for long, continued use, but rather, they were only suitable for one-time usage. It is also significant that the hearing officer acknowledged in his recommended order that appellant “consumed” at least some of its own products. The hearing officer nonetheless determined that the definition of “use” in Section 212.02(8) was broad enough to encompass “consumption”. Were it not for the fact that the word “consumption” is also used throughout Chapter 212, I might have agreed with the hearing officer and the Department.

Sections 212.06(9) and 212.06(2)(e) employ the word “use” totally independently of the word “consumption”, and in the context of those sections, “use” does not convey a connotation that is synonymous with the common meaning of “consumption”. Conversely, in Section 212.08(1) the word “consumption” is used to convey its common, everyday meaning, i. e. the act or process of depleting or using up. The word “use” is conspicuously absent from that section. In Sections 212.05(2), 212.06(8), and 212.07(7), both the words “use” and “consumption” are utilized, but a reading of those sections indicates that the two words connote entirely different meanings. Furthermore, if “use” encompassed the definition of “consumption”, there would have been no need for the legislature to include the latter word, since its meaning would have been conveyed once the former word was used in the statutory provision. Obviously, the legislature intended that the two words should have different meanings.

In summary, the words “use” and “consumption” are employed together in many different subsections of Section 212.06. This sharply and distinctly dramatizes the absence of the word “consumption” in Section 212.06(l)(b). If the legislature had intended that section to impose a tax on the consumption as well as the use of tangible personal property, it could have employed language which would have removed all susceptibility to vagueness. The common, linguistic meaning of consumption is the act or process of using up, depleting or expending. This is clearly the purpose to which the appellant employed the manufacture of its disposable paper products.

If the word “use” was intended by the legislature to encompass “consumption”, the legislature would not have used the two words jointly in some sections of the revenue statutes and separately in others. The two words do not convey the same meaning, nor is it evident that the legislature intended for them to do so. I would hold that the printed paper products were consumed, visa-vis used, by the appellant, and as such, were not subject to the use tax. This holding is consistent with the purpose for which use taxes are imposed and with all principles of statutory construction. Accordingly, I would reverse.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. Jack A. RUSSELL and Carmen Vallarta Russell, his wife, Appellees.
    No. 79-870.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 16, 1981.

      Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, P. A., Miami, and Jones & Foster, P. A., Vero Beach, for appellant.
    Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellees.
   MOORE, Judge.

In this negligence action the appellant, Florida East Coast Railway, appeals a final judgment, entered upon a jury verdict, awarding damages to the appellees, Jack Russell and his wife. Although the appellant raises several points on appeal, only one of them merits discussion. The others were either waived by failure to object at the trial level or they are without merit.

The appellant contends that this action should have been dismissed for failure to prosecute pursuant to Fla.R.Civ.P. 1.420(e). We disagree and affirm.

Russell was seriously injured in December, 1973, when the truck he was driving was struck by one of appellant’s trains at a private crossing on the property of his employer. His original complaint was voluntarily dismissed when his attorney, A1 Frier, became ill at trial. The action was reinsti-tuted in June, 1977 against the railway and its employee who operated the train. Although the names of attorneys C. R. McDonald and A1 Frier appeared on the complaint, it was signed only by Frier, and McDonald disclaimed knowledge that his name was on the complaint. McDonald represented Russell on the latter’s workmen’s compensation claim and apparently referred the negligence suit to Frier. McDonald contended that Russell discharged him on September 7, 1977 from further representation. The appellant’s answer to the complaint was served on McDonald and Frier on July 5, 1977.

No further action toward prosecuting the case ensued, and on August 11, 1978, the clerk of the trial court notified appellant’s counsel and Frier by letter that the cause would be dismissed on September 12th unless good cause was shown prior to that date. The notice did not contain a hearing date, nor did it make reference to Rule 1.420(e). It is undisputed that no record activity had occurred between July 5, 1977 and August 11, 1978. During this period, Frier was experiencing difficulties coping with his duties as a lawyer and he failed to prosecute Russell’s claim. These problems were not made known to Russell who was assured repeatedly by Frier and his wife-secretary that his claim was being prosecuted diligently.

When the clerk’s letter of August 11th was discovered by Frier’s wife, she notified McDonald of the circumstances. He immediately filed a motion to set the cause for jury trial and the court, on September 21, 1978, set the cause for trial. Nonetheless, on September 26, 1978, the appellant filed a motion to dismiss the action for failure to prosecute, alleging no record activity for more than one year after the filing of appellant’s answer. The trial court denied the motion to dismiss on the ground that Frier’s mental problems, which were unknown to Russell, constituted good cause for failing to prosecute. The ease subsequently went to trial with new counsel representing the Russells.

In view of our holding, it is not necessary to determine whether Frier’s mental problems constituted good cause for allowing the action to remain pending. We believe that the informal clerk’s notice sent to the parties on August 11, 1978 was a nullity because it failed to comply with Fla.R.Civ.P. 1.420(e), which states:

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute, (emphasis supplied).

Although it is true that either an interested party, or the trial court on its own motion, may move to dismiss an action under the rule, it is equally clear that the rule contemplates notice and a hearing prior to a determination by the trial court. Harris v. Filmon, 358 So.2d 905 (Fla. 2nd DCA 1978); Fields v. Fields, 291 So.2d 663 (Fla. 1st DCA 1974). The clerk’s notice did not set a hearing date in its letter of August 11th or at anytime thereafter, nor did it advise the appellee of the five day requirement. Even assuming the clerk’s notice to be a court motion, where the trial court fails to conduct a hearing on its own “motion” to dismiss, and no timely order is entered in accordance with the motion, the trial court has effectively abandoned its motion. Thus, even though there was a lack of record activity during the more than one year period between the filing of appellant’s answer on July 5,1977, and the filing of Russell’s motion to set the cause for trial on September 12, 1978, there was insufficient action taken to dismiss the cause. The informal clerk’s notice was not a self executing motion and it was necessary to conduct a hearing on the issue of “good cause” before an order of dismissal could be entered properly. Shalabey v. Memorial Hospital of South Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971).

The filing of appellant’s own motion to dismiss on September 26, 1978 could not result in a proper order of dismissal either, since at that point in time there was record activity by Russell only 14 days earlier (i. e., the motion to set the case for jury trial), and record activity by the trial court on September 21, 1978 (i. e., the order setting the case for trial). We find such record activity to be sufficient to prevent dismissal under Rule 1.420(e). The one year period prescribed by Rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss. Ace Delivery Service, Inc. v. Pickett, 274 So.2d 15 (Fla. 2nd DCA 1973); Shalabey, supra. Thus, because there was record activity within the year prior to the filing of the appellant’s motion to dismiss, the trial court correctly denied the motion. Industrial Trucks of Florida v. Gonzalez, 351 So.2d 744 (Fla. 3rd DCA 1977).

The final judgment is affirmed.


author: GLICKSTEIN, Judge.

text:
    James F. CONNOR, Appellant, v. TOWN OF PALM BEACH and the Board of Trustees, Town of Palm Beach Employees Retirement System, Appellees.
    No. 79-1077.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 18, 1981.
    Fred H. Gelston of Tucker & Slawson, P. A., West Palm Beach, for appellant.
    John A. DeVault, III, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, and Burns, Middleton, Farrell & Faust, Palm Beach, for appellees.
    Frank E. Hamilton, III, of Hamilton & Douglas, P. A., Tampa, for amicus curiae, Montgomery, Lytal, Reiter, Denney & Sear-cy, P. A.
   GLICKSTEIN, Judge.

James F. Connor was a law enforcement officer employed by the Town of Palm Beach in June, 1976. During the evening of June 17, 1976, Officer Connor suffered a heart attack which rendered him totally and permanently disabled for work as a law enforcement officer. Thereafter he sought duty disability pension benefits under the Town of Palm Beach Employees Retirement System. Pursuant to the Town’s ordinances, Officer Connor selected a physician; the Board of Trustees, Town of Palm Beach Employees Retirement System (hereinafter called the Board) selected a physician; and the two physicians selected a third physician to form a medical committee. The committee was created to determine the nature of the disease suffered by the officer and the disease’s effect on the officer’s employment. All three physicians concurred that the officer’s heart disease was not caused by his employment.

On April 20, 1977, the officer’s attorneys wrote to the Board that they were in receipt of the physicians’ report, that they requested a formal hearing, and that they understood the Board next met on June 8, 1977. On June 3, 1977, the Board met and conducted its business. As part of the agenda one of the officer’s attorneys addressed the Board and, according to the minutes of the meeting, “introduced the hospital records and a deposition of Mr. Connor.” The Board had no attorney present. The officer’s attorney argued that Section 185.34, Florida Statutes (1977) entitled his client to a presumption that any heart disease was suffered in the line of duty unless the contrary is shown by competent evidence. It was further argued that the deposition bore out the contention that the heart disease was job related. The members of the Board then made individual comments and passed a motion to obtain a legal opinion on the relationship of the above statute to the physicians’ report and the Town’s ordinance. Thereafter, the officer’s attorney asked whether the hearing was continued, but she never received a response.

The Town attorney prepared a written legal opinion to the Board on July 14, 1977, which said that Section 185.34, Florida Statutes (1977) was not applicable because the medical report stated that the officer’s problem was not job related. The Town attorney recommended that the Board base its decision on medical evidence and the Town’s ordinance. The officer’s attorneys did not receive a copy. The Board considered the officer’s claim at the September 28, 1977 meeting. The Town attorney was present. Neither the officer nor his attorneys had been notified of the meeting and neither attended. The Town attorney stated his opinion that the officer did not qualify for disability and the Board passed a motion to accept the opinions of the three physicians and the Town attorney. Two days later the Board notified the officer’s attorneys of the decision.

On December 12, 1977, Officer Connor’s attorneys filed a complaint for declaratory relief in the circuit court. The subsequently filed third amended complaint was answered by the Town and the Board, hereinafter called appellees. As their fourth affirmative defense, they alleged that the exclusive remedy for review of the Board’s decision was a petition for common law certiorari to be filed within thirty (30) days of the decision, that is, on or before October 28, 1977.

On August 23, 1978, appellees sought summary judgment on the ground raised by their fourth defense. The officer’s attorney, in an affidavit filed in opposition to the motion, asserted:

There was no indication that testimony could, or would, be received [during the Board meeting of June 3, 1977]. Rather, I was merely allowed to formally present Mr. Connor’s claim.

She further alleged that she had asked if the “hearing” was being continued.

The trial court agreed that common law certiorari was the sole method for review of a quasi-judicial decision of an administrative board of a municipality and held that the hearing of June 3, 1977 was quasi-judicial. The court concluded it was without jurisdiction to consider the cause because certiorari had not been sought. We reverse.

In Jezek v. Vordemaier, 227 So.2d 69, 72 (Fla. 4th DCA 1969) we noted in dictum:

Appellant contends, as part of his argument, that he could not have been seeking review of a quasi-judicial ruling because the “hearings” before the Real Estate Commission were not judicial in nature. In support of this argument appellant submits in his appendix copies of correspondence between his attorneys and the Real Estate Commission, and suggests in argument in the brief, that there was an absence of (1) sworn testimony, (2) a transcript of proceedings before the commission, and (3) a formal order of ruling of the commission containing its ultimate findings and conclusions. None of these matters were alleged in the complaint for declaratory judgment, and hence are not properly before this court. We simply note, as obiter dictum, that were these matters properly before this court as part of the record, it would be clear that the two “hearings” held by the real estate commission would not be sufficient to convert the purely administrative action (which it had taken pursuant to its rules) into a quasi-judicial action, reviewable only by certiorari.

Our sister courts reached similar conclusions. In Board of County Commissioners of Hillsborough County v. Casa Development, Ltd., 332 So.2d 651, 654 (Fla. 2d DCA 1976), the Second District Court of Appeal said:

Before an administrative proceeding can be quasi-judicial in character, there must be a requirement for a hearing to be held upon notice at which the affected parties are given a fair opportunity to be heard in accord with the basic requirements of due process, including the right to present evidence and to cross-examine adverse witnesses, and the judgment of the agency or board should be contingent upon the showing made at the hearing.

Further, the First District Court of Appeal held in Harris v. Goff, 151 So.2d 642, 644 (Fla. 1st DCA 1963):

In the Bloomfield case [Bloomfield v. Mayo, 119 So.2d 418 (Fla. 1st DCA 1960), aff’d. 147 So.2d 388 (Fla.1962)] this court was confronted with a similar problem regarding the appropriate method of reviewing the action of an administrative agency. In that case we held that before an administrative order may be considered quasi-judicial in character and therefore subject to review by certiorari, the statute authorizing the entry of such an order must also require that the administrative agency give due notice of a hearing to be held on the question to be considered, and provide a fair opportunity to be heard in a proceeding in which the party affected is accorded the basic requirements of due process of law. Such requirements must afford the affected party the opportunity of being present in person and by counsel, to present evidence in support of his position and to cross-examine adverse witnesses whose testimony is offered at the hearing. If the board, agency or commission intends to insist that its ruling or order to be entered upon the showing made at the hearing be reviewed only by certiorari, the obligation rests upon the board or agency to see that a proper record of the entire proceeding is made, which record shall include its ultimate findings and conclusions. (Footnote omitted.)

Sub judiee, there was no sworn testimony, no witnesses, no examination or cross-examination, no transcript, and no order containing findings and conclusions. With respect to the meeting of September 28, 1977, there was no notice to and appearance by the officer and his attorney. Consequently, the meetings of the Board were not quasi-judicial. As a result the trial court had jurisdiction to consider the officer’s action for declaratory relief and should not have ordered summary judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HERSEY, J., concurs.

BERANEK, J., concurs in result only.


author: LETTS, Chief Judge.

text:
    Richard D. SHINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2152.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 17, 1981.
    Alexander M. Siegel of Siegel & Siegel, P. A., Margate, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

Reversed. Constructive possession has not been shown. See Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), cert. denied 376 So.2d 76 (Fla.1979).

DOWNEY and MOORE, JJ., concur.


author: HURLEY, Judge.

text:
    Dorothy WALKER, Appellant/Cross-Appellee, v. Kenneth W. HARRIS, and City Commission of the City of Belle Glade, Florida, sitting as Canvassing Board for the City of Belle Glade, Florida, Appellees/Cross-Appellants.
    No. 80-106.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 19, 1981.
    Tobias Simon of Simon, Schindler & Tripp, P. A., Miami, for appellant/cross-ap-pellee.

      Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., and Edna L. Caruso, West Palm Beach, for appellee Harris.
   HURLEY, Judge.

The issue on appeal is whether the trial court’s finding that appellant failed to establish a legal residence in the east borough of the City of Belle Glade and therefore was unqualified for election to the city commission is supported by substantial competent evidence. Our review of the record reveals an insufficiency of supporting evidence and, consequently, we reverse.

The City of Belle Glade is divided into three boroughs. Section 6-15 of the city charter specifies:

Of the five City Commissioners; one shall own property and reside in the North Borough; one shall own property and reside in the East Borough; one shall own property and reside in the West Borough; and two shall own property and reside anywhere in the City. All qualified electors of the City may vote for any candidate for City Commissioner.

Appellant, Dorothy Walker, filed for election to the Belle Glade city commission and indicated that she was a resident of the east borough. She was elected to the commission on September 11, 1979. Shortly thereafter, Kenneth W. Harris, the defeated incumbent, instituted suit to oust Ms. Walker and declare the election null and void. Mr. Harris contended that the election was fraught with campaign financing violations and that Ms. Walker was unqualified for election in that she was not a bona fide resident of the east borough.

The case was tried before the court and resulted in a finding that the alleged campaign financing violations were insubstantial and without legal consequence. The court further found that Ms. Walker was not a bona fide resident of the east borough and therefore, since she failed to satisfy an essential qualification for office, the court declared the election null and void and ordered a new election for the east borough seat. A stay was entered and this appeal ensued.

The court made the following findings of fact on the issue of residency.

The defendant Dorothy Walker is a black female currently enrolled in her third year of law school at the University of Miami College of Law. Ms. Walker, who retained a residence at her mother’s house in Belle Glade during the first two years of law school, decided in the summer of 1979 to run for the East Borough-Commission Seat in Belle Glade and, to that end, moved from her mother’s house to an apartment located within the East Borough.
Shortly after moving to this apartment, however, the building in which the apartment was housed was condemned, and Ms. Walker moved again. On August 7, 1979, she entered into a written form lease with Mr. Velasco to rent a bedroom in his home located at 349 Southeast 3rd Street, with use of all facilities therein, for $100.00 per month. The blanks of the lease appear to the Court to have been filled in with the defendant Walker’s handwriting. On September 8, 1979, Ms. Walker submitted a change of address form to the post office and Mr. Velasco testified that she does receive mail at his house.
Mr. Velasco also testified, however, that he never received rental payment from the defendant Walker for the month of August and that the first check he received was dated September 19, 1979, which was two days after this cause of action was filed. The Court notes that this check was on a joint account with Ms. Walker’s mother and that the address printed on the check is that of defendant Walker’s mother, which is in the West Borough.
The Court finds that the defendant Dorothy Walker was a legal intern in the State Attorney’s Office at the Belle Glade Annex Building, and that her duties entailed the prosecution of misdemeanor cases and traffic infractions. Upon questioning by the Court the de-' fendant Walker admitted that she had not complied with the provisions of § 322.19, Florida Statutes, which requires that:
Whenever any person, after applying for or receiving an operator’s or chauffeur’s license, shall move from the address named in such application, or in the license issued to him, or when the name of a licensee is changed by marriage or otherwise, such person shall within 10 days thereafter notify the department in writing of his old and new names, and of the number of his license.
The address on Ms. Walker’s driver’s license is the same as that of her mother in the West Borough. The Court further finds that even though the defendant Walker may have had some of her personal belongings at the address in the East Borough, it was not her legal residence, and it was nothing more than a mail drop in an effort to comply with the residency requirements of the Charter of Belle Glade for election to the East Borough.

Analyzing the trial court’s order, we find five factual determinations which tend to support the conclusion that appellant failed to establish a bona fide residence in the east borough: (1) Mr. Velasco, the landlord at 349 Southeast Third Street, testified that he never received a rental payment for the month of August, 1979; (2) the first rent check introduced into evidence was dated September 19th, 1979, two days after the suit was filed; (3) Ms. Walker utilized a joint checking account with her mother and the checks bore a printed inscription of the mother’s address in the west borough; (4) Ms. Walker failed to notify the state department of motor vehicles of her change of address; and (5) Ms. Walker used the house at 349 Southeast Third Street as nothing more than a “mail drop.”

Before appraising the sufficiency and legal effect of these findings, we wish to emphasize that an appellate court may not substitute its judgment for that of the trier of fact by reevaluating the evidence. Marshall v. Johnson, 392 So.2d 249 (Fla.1980). Our role is properly limited. “Findings of fact by a trial judge are presumed to be correct and are entitled to the same weight as a jury verdict. Findings by a trial court will not be disturbed unless there is a lack of substantial evidence to support the court’s conclusion.” Strawgate v. Turner, 339 So.2d 1112, 1113 (Fla.1976) (citations omitted).

Turning to the record, we find that two of the trial court’s findings lack any support whatsoever. Mr. Velasco, the landlord, never testified that he had not received the August rent. On the contrary, both Mr. Velasco and Ms. Walker testified unequivocally that the rent had been paid. No evidence was offered to negate their testimony and so, the court’s contrary conclusion is without support in the record. The same holds true for the court’s finding that Ms. Walker used the home at 349 Southeast Third Street as nothing more than a mail drop. Ms. Walker and Mr. Velasco testified that appellant moved her possessions onto the premises, entertained friends there, and regularly slept there. Again, this testimony was uncontradicted and, consequently, the court’s first and fifth findings are void for lack of evidentiary support. Thus, we are left with three findings and the question is whether they are supported in the record and, if so, whether they constitute substantial evidence to justify the court’s conclusion that appellant failed to establish a bona fide legal residence in the east borough.

Before considering the three remaining findings, we turn to the concept of “domicile” or “legal residence” and its usual mode of proof. In Herron v. Passailaigue, 92 Fla. 818, 110 So. 539, 543 (1926), the court stated:

The rule is well settled that the terms “residence,” “residing,” or equivalent terms, when used in statutes, or actions, or suits relating to taxation, right of suffrage, divorce, limitations of actions, and the like, are used in the sense of “legal residence”; that is to say, the place of domicile or permanent abode, as distinguished from temporary residence.

A person may have several temporary local residences, but can have only one legal residence. A legal residence, or domicile, is the place where a person has fixed an abode with the present intention of making it their permanent home. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933). In Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364 (Fla.1955), a case strikingly similar to the one at bar, the court held:

[W]here a good faith intention is coupled with an actual removal evidenced by positive overt acts, then the change of residence is accomplished and becomes effective. This is so because legal residence consists of the concurrence of both fact and intention. The bona fides of the intention is a highly significant factor. Id. at 368.

Furthermore, our courts have consistently recognized that an individual’s intent is a subjective factor and, therefore, “the best proof of one’s domicile is where he says it is.” Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870, 873 (1947). See also, Brown v. Brown, 123 So.2d 382 (Fla.2d DCA 1960). This is not to suggest that proof of legal residence cannot be measured by objective factors, but in analyzing proof of intent, a person’s declaration is especially significant and entitled to great weight.

In the case at bar, Ms. Walker repeatedly testified that she moved to the east borough for the sole purpose of establishing a legal residence to qualify for election. She testified that she was aware of Section 6-15 of the City Charter and, despite an acute housing shortage in the east borough, she searched for a residence that would meet the charter’s requirements. Ms. Walker detailed the steps which she took to carry out her intent: (1) she located, leased and moved into a home in the east borough which was in bad repair; (2) she spoke to a contractor and to the utilities company about making the first home habitable, but gave up when it was condemned; (3) she located the Velasco home at 349 Southeast Third Street, signed a lease, moved in and took up residence; (4) she notified the bank and the post office of her new address. Again, we note that the foregoing testimony was uncontradicted.

To corroborate her testimony, appellant called her landlord and the postmaster as witnesses. Mr. Velasco, the landlord, testified that on August 7, 1979, he signed a lease and agreed to rent a portion of his home to appellant for one hundred dollars per month. Rent was due on the last day of each rental period. He further testified that appellant moved into the premises and thereafter entertained friends and regularly slept there. Mr. Donald Sivyer, the postmaster in Belle Glade, produced a change of address card which appellant had filed on September 6, 1979, and which reflected her new address at 349 Southeast Third Street in Belle Glade. As with the earlier testimony, this evidence was uncontradicted.

Turning again to the remaining three findings in the trial court’s order — (a) the first rental check introduced into evidence was dated September 19, 1979; (b) Ms. Walker utilized a joint checking account with her mother; and (c) Ms. Walker failed to notify the department of motor vehicles of her change of address — we hold that they are so patently inconclusive that, either individually or cumulatively, they do not constitute “substantial evidence” sufficient to overturn or rebut the uncontradict-ed testimony and evidence that appellant intended to establish a legal residence in the east borough and took overt steps to accomplish this end. Appellant admitted her failure to notify the department of motor vehicles, but testified that she was unaware of the requirement and that her license, which had been issued several years earlier, was about to expire. Without question, notification to authorities and to the public at large is a relevant factor to consider in weighing a disputed issue of legal residence. Yet, in the case at bar, it is unrefuted that appellant notified a local bank and the Belle Glade post office of her new address. Thus, the probative value of her failure to notify the state department of motor vehicles is severely undercut. As for the use of a joint checking account with checks bearing a printed inscription of her mother’s west borough address, appellant testified that she was a full-time student with minimal funds and that she had resided with her mother prior to moving to the-east borough. This was uncontradicted and so, we find no probative value whatsoever in this finding. Lastly, as to the date of the first rent check, both Ms. Walker and Mr. Velasco testified that the August rent had been paid, though neither was sure as to the exact date. Furthermore, they testified that, under the rental agreement, rent was due and payable on the last day of the 30-day period which, in this case, would have been September 6th. Mr. Velasco also testified that he knew Ms. Walker was a full-time student and that late payments were acceptable to him. With the uncon-tradicted testimony that the August rent had been paid, the significance of the September 19th check is dubious at best.

Bearing in mind the general principle “that the primary consideration in an election contest is whether the will of the people has been effected,” Boardman v. Esteva, 323 So.2d 259, 269 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976), and looking at the uncontradicted testimony of appellant’s intent coupled with the uncontradicted evidence of the multiple overt acts which she took to establish a legal residence in the east borough of Belle Glade, we are compelled to hold that the trial court’s remaining three findings, as a matter of law, do not constitute substantial evidence sufficient to justify the court’s ultimate conclusion. Accordingly, the cause is reversed.

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

      . Trial counsel stipulated that the property ownership requirements have been stricken. Thus, the ordinance, only requires that three of the five city commissioners reside in specified districts or boroughs.

      . This address is in the east borough.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Rufus W. PERRY and Earle Melvin Seitz, Appellees.
    No. 80-971.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 18, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

The State appeals from an order granting appellees’ motion to suppress marijuana seized without a search warrant by the police when appellees were arrested without an arrest warrant in appellee Perry’s residence. This case is related to Inchaustegui v. State, 392 So.2d 319 (Fla. 4th DCA 1980).

It appears that Deputy Sheriff Green, acting undercover, negotiated with appellee Perry to purchase 250 pounds of marijuana for $45,000. The negotiations culminated in an arrangement for Green to meet at Perry’s residence on a certain date at approximately 2:00 p. m. to pick up the marijuana. When Green arrived the marijuana had not yet been delivered to Perry. After waiting a while Green left to get a sandwich and when he returned he found a car was backed up to the west bedroom door of the Perry residence. Perry, Seitz, and the three appellants in Inchaustegui, supra, were unloading bales from the car to an upstairs bedroom. Green actually cut open one of the bales to verify that its contents were marijuana. Then Green exited the residence, purportedly to obtain from his car the money for the marijuana. By prearrangement this was a signal to a number of backup officers, who were staked out around the neighborhood, that Green had seen the marijuana and it was time to move in and make the arrest. Green was also equipped with an electronic device so that he could give the waiting officers a verbal signal. The other officers moved in and arrested all six of the individuals involved (including Green). The warrantless arrests of Perry and Seitz and the warrantless seizure were made inside the residence.

The record reflects that Perry owned the residence and lived there. Seitz, a resident of the Dominican Republic, is alleged to have been staying at Perry’s residence.

All the individuals (except Green) were charged with delivery of cannabis in excess of five grams. The defendants in Inchaus-tegui, supra, pleaded nolo contendere while reserving the right to question on appeal the propriety of orders denying motions to suppress. This court affirmed the judgment and orders in the Inchaustegui case.

Perry and Seitz also moved to suppress and after a hearing separate from the In-chaustegui defendants’ the trial court granted the motion on the ground that the police needed a search warrant to justify the seizure, and the State perfected this appeal.

The State urges reversal as to Seitz on the ground that he had no standing to question the seizure. It seeks reversal as to both appellees on the ground that the arresting officers had probable cause to believe a felony drug transaction was being committed in their presence, and the war-rantless seizure was proper because it was made pursuant to lawful arrests and because the marijuana was in plain view.

The appellees contend that the seizures were unlawful because warrantless arrests in this case were prohibited by Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The State counters by arguing that Payton does not apply. Assuming, but not holding, that Seitz had standing, we agree with the State that the arrests and seizure were proper and thus reverse the order appealed from.

The record in this case shows without dispute that the appellees invited Green into Perry’s residence to transact unlawful business. By this invitation appel-lees surrendered, or waived, their right of privacy insofar as the residence was concerned. Thus, the appellees and the residence were not entitled to the same degree of protection the Fourth Amendment of the United States Constitution and Article I, § 12, of the Florida Constitution afford residences and residents not involved in the transaction of unlawful business. See United States v. Ryles, 451 F.2d 190 (3rd Cir. 1971). The facts in Ryles are similar to those of the present case. There, Joseph Ryles offered to sell narcotics to an undercover agent, Davis, at Ryles’s apartment. When Davis arrived at the apartment Ryles offered to sell him narcotics for $2800 and began to mix white powder on the kitchen table. Davis told Ryles he had to go downstairs to get the money. Davis then “descended the stairs, signalled other officers in waiting, and they all entered the apartment, arrested Ryles, and seized the narcotics.” 451 F.2d at 191. The arrest and seizure were accomplished without any warrant. Ryles filed a motion to suppress the narcotics, and the trial court denied the motion. The appellate court affirmed, holding:

“We believe that the motion to suppress was fully and properly disposed of by the trial court. It relied on Lewis v. United States, 385 U.S. 206, p. 211, 87 S.Ct. 424, p. 427, 17 L.Ed.2d 312 (1966) in which the Supreme Court held that:
‘[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street.’ ”
451 F.2d at 191.

See, too, State v. Schwartz, 398 So.2d 460 (Fla. 4th DCA 1981). Insofar as constitutional protection is concerned, Perry’s residence was tantamount to a public place, and warrantless arrests in public places upon probable cause are lawful. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Here the record shows that through Green’s prearranged signalling the arresting officers had probable cause to believe a felony was being committed in Perry’s residence, and the persons inside the residence (which at the time in question had become, in effect, a public place) could be arrested. See Section 901.-15(3), Florida Statutes (1977), which provides, in material part, that “A peace officer may arrest a person without a warrant when: . . . [h]e reasonably believes that a felony ... is being committed and reasonably believes that the person to be arrested ... is committing it.”

For the foregoing reasons, we reverse the order of suppression and remand the cause for further proceedings.

REVERSED AND REMANDED, with directions.

BERANEK and GLICKSTEIN, JJ., concur.


author: PER CURIAM.

text:
    In re the ESTATE of Alfons CHIAPPETTA, Deceased.
    No. 80-1002.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearing Denied June 9, 1981.

      Angeline G. Weir of Pallotto, Weir & Hayson, Hollywood, for appellant Mary L. Chiappetta, surviving spouse of Alfons Chi-appetta.
    Michael J. Garavaglia of Tucker, Gara-vaglia & Ziff, Hollywood, for appellee Joseph Chiappetta, personal representative of the Estate of Alfons Chiappetta.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

LETTS, C. J., and DOWNEY and AN-STEAD, JJ., concur.


text:
    STATE of Florida, Appellant, v. Danny Lee LOWE, Appellee.
    No. 80-1149.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1981.
    Rehearings Denied June 17, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    Donald A. Wich, Jr., of Sullivan, Rana-ghan, Bailey & Gleason, P.A., Pompano Beach, for appellee.
   DOWNEY, Judge.

The State seeks reversal of an order dismissing all three counts of an indictment and discharging appellee as a sanction for discovery violations.

On July 31, 1979, Danny Lee Lowe, a juvenile, was arrested on charges of sexual battery, armed robbery, and breaking and entering. No certification hearing having been held within 21 days, the State nolle prossed the case and obtained a grand jury indictment containing the identical charges.

Without detailing all of the motions to compel discovery, orders thereon, and rules to show cause for the State’s failure to comply with the discovery rules, suffice to say that the Broward County Sheriff’s office simply did not measure up to its obligations to furnish discovery pursuant to either the Rules of Criminal Procedure or the Court’s orders in this case. As a result the trial judge elected to invoke the ultimate sanction for such recalcitrance and discharged Lowe from all pending charges.

The sanctions to be invoked for failure of a party to comply with discovery is a matter within the sound judicial discretion of the trial judge, and it is only with the utmost reluctance that we interfere with that exercise of discretion. However, dismissal of serious criminal charges or discharge of a defendant in a criminal case is an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists. See, e. g., State v. Perez, 383 So.2d 923 (Fla. 2d DCA 1980). In this case, Lowe had finally obtained the material he sought, albeit right on the eve of trial. At least three weeks remained before the speedy trial time expired and the State suggested to the trial judge that the defendant be granted a continuance of three weeks so as to fully acquaint himself with the newly obtained materials. The trial judge refused to grant the suggested continuance and therein we feel he abused his discretion. The only possible problem which could have been engendered by granting the continuance was a docket problem in reaching the case three weeks from the previously scheduled trial date. But if that eventuality came to pass, at worst the prosecution would be terminated by expiration of the time allowed for speedy trial.

Although the trial judge acted improperly in dismissing all three counts for discovery violations, we hold he acted properly in dismissing Counts I and II of the indictment under the rule set forth in Robidoux v. Coker, 383 So.2d 719 (Fla. 4th DCA 1980). However, he erred in dismissing Count III and he further erred in discharging appellant from any of the charges laid in said three counts.

We therefore affirm the order under review insofar as it dismisses Counts I and II of the indictment, reverse the order insofar as it (a) dismisses Count III and (b) discharges Lowe from prosecution for all three counts, and remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

MOORE and HERSEY, JJ., concur.

      . The trial judge expressly found that the fault in this case lay with the Sheriffs Office rather than the State Attorney’s Office.

      . While defense counsel exerted Herculean efforts to successfully locate evidence in the Sheriff’s files that might benefit the defendant at trial, those exertions were not engaged in until three days before the scheduled trial date.


author: LARRY G. SMITH, Judge.

text:
    Wesley Calvin WOOTEN, Appellant, v. STATE of Florida, Appellee.
    No. TT-105.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 16, 1981.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., and A. S. Johnston, Asst. At-tys. Gen., for appellee.
   LARRY G. SMITH, Judge.

Appellant seeks reversal of his conviction of second degree murder based upon his contentions that the trial court erred in denying his motion to suppress evidence seized from his apartment, and that at the trial the court erred in admitting testimony over his “Williams Rule” objection, in admitting inflammatory photographs of the victim, and in denying his motion for judgment of acquittal and request for a mistrial. We affirm.

A passer-by happened to see the appellant on the street carrying the victim, a thirteen-month old baby girl, the child of appellant’s girlfriend, who was living with him in his apartment at the time. After observing appellant shake, yell at, and appear to strike the baby, the passer-by followed to see where appellant lived, and then flagged down a policeman, whom he led back to appellant’s apartment. Upon arrival at appellant’s apartment, the police officer, Swisher, asked to see the child, at which point appellant denied having harmed the child, but went and got the child from the kitchen area and brought her to the officer. Officer Swisher then asked appellant to bring the child to a bathroom in the hallway outside the apartment for examination. Upon observing that the child appeared lifeless, and being unable to detect a heartbeat, the officer instructed appellant to return the child to the apartment and place her on the bed, which he did. The officer called for backup and rescue personnel to assist him, then continued his examination of the child. He requested that appellant place the child on the floor, as he was prepared to administer cardiopul-munary resuscitation. Within moments, the rescue personnel, his backup, patrolman Andrews, and an evidence technician, patrolman Meyer, arrived. Rescue immediately removed the child to the outside for further examination and rescue efforts. Officer Swisher took appellant outside, advised him he was under arrest for aggravated child abuse, advised him of his rights, and placed him in the patrol car. Officers Andrews and Meyer remained upstairs at defendant’s apartment. Swisher had instructed officer Andrews to “seal off the room.” Swisher’s supervisor, Sergeant Ea-son, and detective Richardson then arrived on the scene, and were informed by Swisher of what had taken place. Detective Richardson was advised by Swisher that the victim’s mother and another child, the victim’s baby sister, also resided in the apartment. Detective Richardson was also informed by uniformed officers present on the scene that there were what appeared to be blood stains in the apartment. Armed with this knowledge, detective Richardson entered the apartment, and he and the other officers began to process the area for evidence. He observed blood stains on the kitchen floor, along with various items of wearing apparel and bed clothing, some of which appeared to have blood stains on them, along with a belt which also had a stain which appeared to be blood. All of these items were in open and plain view, and were seized by the officers, along with a brush and a comb. Officer Meyer took photographs of the scene and of the physical objects prior to their being seized. Examination further revealed blood stains along the north wall of the stairwell leading to the apartment, and these blood samples were removed, as were those from the kitchen floor inside the apartment.

Officer Swisher testified that there was no one at the apartment other than appellant and the apparently lifeless child when he arrived. In view of the small size of the apartment, which consisted of only a living-sleeping room, and a kitchen, it is highly likely that the other officers were also aware that no one else was in the apartment. When asked why he did not obtain a warrant prior to the search and seizure of items in the apartment, detective Richardson stated that he had received information that the victim’s sister and mother were also residing in the apartment, and he was also aware that there was blood and possible other physical evidence which would be pertinent to the incident. He had already been informed of the serious, possibly fatal injuries to the child, possibly resulting from actions of the appellant, who had been seen striking the child.

Detective Richardson also testified that he learned during his investigation that the mother and the other child were at University Hospital. However, it is impossible to determine from the testimony at the suppression hearing at exactly what point in the investigation detective Richardson acquired this knowledge. It therefore remains unclear just exactly what bearing, if any, detective Richardson’s knowledge that the mother and another child resided in the apartment had on his decision to proceed with the investigation, search and seizure of items from the apartment without a warrant. The State in its brief before this court asserts that it was necessary for detective Richardson to enter the apartment to determine if there were other persons who might need medical attention. We find nothing in the record to support this assumption. Furthermore, although we would ordinarily assume that concern for the safety of the mother and the other child motivated detective Richardson’s entry on this occasion, we cannot make such an assumption because officer Swisher knew there was no one else present, and we would have to conclude that the other officers present in the apartment when Richardson arrived were also aware that no other persons were there.

In support of his suppression argument, appellant relies primarily upon Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), in which the court firmly established that there is no “murder scene exception” to the warrant requirement of the Fourth Amendment. The facts in Mincey were briefly that several officers entered Mincey’s apartment without a warrant or consent, whereupon a gun battle ensued, leaving one of the officers dead, and Mincey seriously wounded. After the shooting a search for other persons in the apartment was made, but no other search or seizure of any evidence was made until homicide detectives arrived some ten minutes later. The detectives then proceeded to gather evidence in a search that lasted four days, during which time the entire apartment was searched, photographed and diagramed. All drawers, closets, and cupboards were opened and inspected, clothing pockets were emptied, bullets were dug out of the walls and sections of the carpet pulled up and removed for examination. Some 200 to 300 objects were seized.

We think the facts in this case vary substantially from those in Mincey. Initially, we are confident that the entry by officer Swisher was justified by the “exigent circumstances” presented by his prior knowledge of the possible abuse of the child, and upon observing the child itself, the need to protect the child, determine its condition, and to immediately secure whatever medical or other attention might be necessary. Furthermore, Swisher’s presence in the apartment would appear to be consensual, at least up to the point where Swisher’s concern over the child’s serious condition became apparent to appellant. Swisher’s presence in the apartment is amply justified by the circumstances which indicated that the child was in need of immediate aid, which he proceeded to obtain. This type of entry is not prohibited by the Mincey decision. The Mincey opinion states (437 U.S. at 392, 98 S.Ct. at 2413):

.. . We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that the person within is in need of immediate aid .... (footnotes omitted)

Florida is among those jurisdictions so interpreting the Fourth Amendment. Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967); State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973); Gilbert v. State, 289 So.2d 485 (Fla. 1st DCA 1974); Long v. State, 310 So.2d 35 (Fla. 2nd DCA 1975); Hornblower v. State, 351 So.2d 716 (Fla.1977); Evans v. State, 364 So.2d 93 (Fla. 3rd DCA 1978); Johnson v. State, 386 So.2d 302 (Fla. 5th DCA 1980). See also Grant v. State, 374 So.2d 630 (Fla. 3rd DCA 1979), a post-Min-cey decision applying the “plain view” exception where the entry was justified under another aspect of the “emergency” or “exigency” rule.

We also conclude that the subsequent observation and seizure of items in the apartment by detective Richardson and the officers assisting him did not violate the Fourth Amendment. Officer Swisher’s observation of the child and of the actions of appellant led him to conclude that the child was in grave condition, and that appellant was probably responsible. It was entirely reasonable, in our opinion, for the rescue personnel and the other officers who arrived momentarily to also enter the apartment to render further assistance in caring for the child and to provide support for Swisher, the lone officer present when they arrived. While in the apartment for this legitimate purpose the officers observed in plain view what appeared to be blood stains on the floor and upon several of the items taken. We also conclude that it was reasonable for detective Richardson, who arrived only a few minutes after Swisher left the apartment, to confirm the existence of the blood stains that he had been informed of, and to direct and assist in the taking of photographs, blood samples, and the seizure of the suspected items of evidence which were in plain view. There was no inspection of drawers or closets, and no seizure of any items not directly related to the incident of suspected child abuse.

It cannot be concluded that at the time detective Richardson arrived on the scene the “exigency” was necessarily over. Examination and emergency treatment of the child was still in progress, although the rescue unit had left the scene, enroute to the hospital with the child. While we do not find it articulated by the officers testifying at the suppression hearing, we think the circumstances were such that further investigation of the apartment was justified for the purpose of determining if there was evidence that might shed some light upon the cause of the child’s condition, which in turn might have been of assistance in her diagnosis and treatment. See Long v. State, supra. In this connection we note from the trial testimony that the child still had a heartbeat when she arrived at the hospital emergency room. Since the trial judge made no findings in his order denying the motion to suppress we cannot state that he took into account the necessity for continuing investigation by the officers as a possible aid to the child. However, detective Richardson testified that he did not obtain a warrant because, among other reasons, he was aware “that there were blood and possibly other physical evidence which would be pertinent to this particular incident.” Further immediate examination of the apartment from which the seriously ill or injured child had just been removed would seem to be normal and reasonable police procedure under the circumstances, and it appears to us that evidence “pertinent to the incident” could embrace that which might have possibly assisted the child as well as that which might tend to incriminate appellant.

We do not think that Richardson’s entry of the apartment and seizure of evidence exceeded the bounds permissible under the exigency rule. Appellant urges that the exigency had ceased by the time Richardson arrived, and that his subsequent one hour to one hour forty-five minute search was not the type of cursory warrantless search sanctioned in Mincey. We disagree, based upon our view that the entry of all officers on the scene was part of one continuous episode, initially justified by exigent circumstances. We know of no decision and no logical basis for holding that a lawful entry is limited to a single officer, nor any rule that prohibits one officer, legitimately on the premises, from being joined by a sufficient number of his fellow officers, or his superior officers, to take charge and to perform the police functions which are then immediately justified and required. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is instructive on this point, even though the entry in that case was by firemen, initially, for the purpose of extinguishing a fire in a commercial building. The facts are that firemen first arrived, followed by the fire chief at about 2:00 a. m. Upon being advised of indications of arson, the chief called a police detective, who arrived at about 3:30 a. m. He took several photographs, but had to abandon these efforts because of the smoke and steam. Around 4:00 a. m. the fire had been extinguished and the firefighters left the scene, as did the chief and detective. They took certain containers to the police station, and then four hours later, the chief returned with an assistant fire chief. At this time the fire had been extinguished and the building was empty. After a brief examination they left, and then the assistant fire chief returned with the same police detective at around 9:00 a. m., at which time they discovered evidence indicating intentional burning. Upon making this discovery, they left the building to obtain tools, then returned and removed several items of evidence. All of these entries and the seizure of evidence were approved, the court stating (98 S.Ct. at 1951):

... Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

The court pointed out, however, that entries made several weeks after the day of the fire, without a warrant, were unlawful, because they were “clearly detached from the initial exigency and warrantless entry.” (98 S.Ct. at 1951). In summation, the court held that an entry to fight a fire requires no warrant, and that once in the building, officials “may remain there for a reasonable time to investigate the cause of the blaze.” Thereafter, said the court, “additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches.” (Id. at 1951)

Innumerable instances can be cited, some from recent eases, of lawful warrantless entry by several officers. See for example, Preces v. State, 379 So.2d 77 (Fla. 3rd DCA 1979), and State v. Schwartz, 398 So.2d 460 (Fla. 4th DCA 1981). In Schwartz, an officer whose initial entry to the defendant’s home was by invitation, for the purchase of illegal drugs, left the house to return to his automobile to obtain the money for the purchase. That officer and two others, according to prearranged plan, then returned to the residence where they arrested the defendant and seized contraband. Holding that it was unnecessary for the officers to comply with the “knock and announce” statute for reentry to the premises, the court said that the first officer, who was lawfully on the premises, had an implied invitation to return without the necessity of complying with the statute and: “The fact that he enlists the aid of other officers does no injustice to the statute or the constitution. It neither adds to, nor detracts from, the reasonableness of the reentry.”

In summary, we conclude that under Mincey, Tyler, and the Florida decisions referred to, officer Swisher’s entry to appellant’s apartment was lawful, it was lawful for other officers to enter to assist him and to take charge of the premises while Swisher was occupied with the arrest and removal of appellant, and that it was also lawful for detective Richardson to enter for the purpose of supervising and completing the limited investigation of the premises and the seizure of items of evidence or suspected evidence in plain view. As for appellant’s objection that some of the items were not in and of themselves obviously of an incriminating nature, we understand the rule to be that not only fruits or implements of the crime, weapons and property, the possession of which is itself a crime, may be seized, but that also mere evidence can be seized provided there is probable cause to believe the evidence will aid in a particular apprehension or conviction. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 783 (1967); Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). See Neary v. State, 384 So.2d 881 (Fla.1981). The evidence here shows a sufficient connection between the items seized and the particular crime the officers had probable cause to believe had been committed.

Appellant’s contention that it was error to admit evidence that appellant beat or physically mistreated the victim or the victim’s sister, a two-year old, prior to the date of the alleged offense is disposed of by recent as well as established case law. See Sireci v. State, 399 So.2d 964 (Fla.1981), and Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), pet. for rev. den. 392 So.2d 1373 (Fla.1981). We have considered and find no reversible error in the remaining points on appeal.

The judgment and sentence appealed from are AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


author: ERVIN, Judge.

text:
    Robert A. MALLARD, Property Appraiser, Duval County, Florida, Appellant, v. TELE-TRIP COMPANY, a corporation, Appellee.
    No. VV-252.
    District Court of Appeal of Florida, First District.
    May 13, 1981.

      Dawson A. McQuaig, Grady W. Martin and William Lee Allen, Jacksonville, for appellant.
    Robert C. Gobelman and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lee.
   ERVIN, Judge.

The parties have asked us to determine whether an ad valorem tax on a leasehold interest of governmental property that is measured by income or volume of transactions assessed against an insurer or its agent by a local government is void, because this subject has been preempted by virtue of Section 624.520, Florida Statutes. Because we find that this statute does not preempt this type of tax, the summary judgment granted by the trial court in favor of the appellee, Tele-Trip Company, is reversed.

Tele-Trip entered into an air travel insurance concession agreement with the Jacksonville Port Authority, which is the corporate political entity that operates Jacksonville International Airport. Commencing December 1,1977, the agreement permitted Tele-Trip to sell air travel insurance for a three-year period from an insurance counter and various machines at the airport.

Appellant, Robert A. Mallard, who is the Duval County Property Appraiser, informed Tele-Trip in 1978 that his office had determined the ad valorem tax assessment of the appellee’s leasehold interest at the airport to be $83,000.00. After losing an appeal on this determination to the Duval County Property Appraisal Adjustment Board, Tele-Trip filed suit in circuit court. The appellee’s contention was that it was exempt from any ad valorem tax based on Section 624.520(1), Florida Statutes (1971), which states:

624.520 Preemption by state.—
(1) This state hereby preempts the field of imposing excise, privilege, franchise, income, license, permit, registration and similar taxes and fees, measured by premiums, income, or volume of transactions, upon insurers and their agents and other representatives, and no county, city, municipality, district, school district, or other political subdivision or agency in this state shall impose, levy, charge or require the same, subject however to the provisions of subsection (2).

Tele-Trip stated its argument was reinforced by appellant’s admission that the assessment was based on a capitalization of Tele-Trip’s assumed minimum income. The minimum income figure was derived by using Tele-Trip’s annual rental paid to the Jacksonville Port Authority. The agreement provided that Tele-Trip would pay $10,000 per year or 17% of the gross sales derived from over-the-counter sales (whichever is greater), and in addition, pay 13% of the gross premiums on all machine insurance sales.

Tele-Trip advocated the view that the tax was measured by income or volume of transactions. Therefore, the tax was preempted by the statute set out above. Tele-Trip cited City of Opa-Locka v. Metropolitan Dade County, 247 So.2d 755 (Fla. 3rd DCA 1971), reh. denied, in which the court struck down an ad valorem tax on the leasehold interest of an insurance company at the publicly owned Opa-Locka Airport. The tax in that case was computed in part by considering the annual rental amount being paid by the company. The trial judge below agreed with Tele-Trip and granted summary judgment. We reverse.

While the City of Opa-Locka case is factually very similar, it involved the assessment and collection of taxes for 1966, 1967 and 1968. The all-encompassing rule in that case is no longer applicable because the tax law of this state has changed considerably since that time. Article VII, Section 10(c), Florida Constitution of 1968, is indicative of the change in the law. This section provides for the taxation of leasehold interests held by private interests on certain capital projects constructed with funds from the sale of revenue bonds floated by a local governmental entity. The court in City of Opa-Locka, supra, never considered this constitutional provision, because the contested tax assessments involved were for years prior to the approval of Article VII, Section 10(c). See Dade County v. Pan American World Airways, Inc., 275 So.2d 505, 517 n. 10 (Fla.1973) (Ervin, J., dissenting), reh. denied.

In reference to the case at bar, the most relevant change in the law, since the City of Opa-Locka decision, is evidenced by the tax statutes which were substantially amended by the legislature in 1971. As a part of the comprehensive alterations enacted into law, the legislature created Section 196.001(2), Florida Statutes, mandating the taxation of leasehold interests in real property, and Section 196.199(2), Florida Statutes, which provides an exemption from the taxation of leasehold interests in real property. See Laws of Florida, Chap. 71-133, §§ 11 and 16. Similarly, Section 624.520, Florida Statutes, was also created by transferring it from another section, as part of the 1971 statutory revision process. Therefore, City of Opa-Locka, supra, is not applicable to the case at bar.

Section 196.001(2), Florida Statutes (1971), states that, unless expressly exempted by statute, “All leasehold interests in property of ... any political subdivision, municipality, agency, authority, or other public body corporate of the state” shall be subject to taxation. “While subsection two does not expressly state that a lease from a' governmental body is a real property interest for ad valorem tax purposes, this is a necessary conclusion which must be drawn since subsection two mandates that governmental leases, not used for public purposes, be taxed.” First National Bank of Birmingham v. Department of Revenue, 364 So.2d 38, 39 (Fla. 1st DCA 1978), reh. denied, appeal dismissed 368 So.2d 1366 (Fla. 1979); see also, St. John’s Associates v. Mallard, 366 So.2d 34 (Fla. 1st DCA 1979), writ discharged, 373 So.2d 912 (Fla.1979).

The effect of this statute is to place the holders of leases of publicly owned real property on a parity with real property owners in the private sector. Walden v. Hillsborough County Aviation Authority, 375 So.2d 283, 285 (Fla.1979), reh. denied; Williams v. Jones, 326 So.2d 425, 430 (Fla. 1975);, reh. denied (1976), appeal dismissed 429 U.S. 803, 97 S.Ct. 34, 50 L.Ed.2d 63. Therefore, holders of leases of publicly owned lands are required to bear their fair share of the tax burden, unless specifically exempted. First National Bank of Birmingham, supra, at 40; Williams, supra, at 430. In Walden, supra, at 285, the Florida Supreme Court noted that the only exemption to Section 196.001(2), Florida Statutes, is specified in Section 196.199(2), Florida Statutes, which permits an exemption, if the lessee serves or performs a governmental, municipal, or public purpose or function. On appeal, Tele-Trip does not contend that it falls within this exception. The tax assessed against Tele-Trip is, therefore, not only proper; it is mandatory.

In our opinion, a review of the grammar and punctuation utilized by the legislature in Section 624.520(1), Florida Statutes (1971), seems to militate against the view advocated by Tele-Trip. The statute preempts the imposition of certain taxes and fees upon insurers and their agents. The list of taxes and fees includes “excise, privilege, franchise, income, license, permit, registration and similar taxes and fees, measured by premiums, income, or volume of transactions.... ” § 624.520(1), Fla. Stat. (1971). “[U]nder the ‘doctrine of the last antecedent,’ relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.” Quindlen v. Prudential Insurance Company of America, 482 F.2d 876, 878 (5th Cir. 1973), reh. denied; 82 C.J.S. Statutes § 334.

In the statute at bar, it is apparent that the clause “measured by premiums, income, or volume of transactions” is a clause that qualifies or limits. Applying the “doctrine of the last antecedent,” there can be little doubt that the clause applies only to the enumerated taxes and fees, including “excise, privilege, franchise, income, license, permit, registration and similar taxes and fees.” Quite obviously, ad valorem taxes are not included within the list of enumerated taxes. The seven enumerated taxes and fees are followed by the clause “and similar taxes and fees.” We must determine whether an ad valorem tax on a leasehold interest in real estate is a tax “similar” to the seven categories of taxes and fees.

The principle of ejusdem generis is relevant. “Under this rule, where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding and more confining terms.” Halifax Area Council on Alcoholism v. City of Daytona Beach, 385 So.2d 184, 187 (Fla. 5th DCA 1980); Soverino v. State, 356 So.2d 269 (Fla.1978). If the legislature had intended general words such as “similar taxes” in Section 624.520, Florida Statutes, to be used in an unrestricted sense, it would not have mentioned a specific class of taxes in the statute. Soverino, supra, at 273; see also, 2A Sutherland Statutes and Statutory Construction, § 47.17, et seq.

An ad valorem tax is definitely not of the same “species” as an excise, privilege, franchise, income, license, permit, or registration tax. This is indicated by Hi-Octane Terminal Company v. Panama City, 164 So.2d 39, 40-41 (Fla. 1st DCA 1964), in which this Court cited a discussion on this issue by the Florida Supreme Court in City of DeLand v. Florida Public Service Co., 119 Fla. 804, 161 So. 735 at 738 (1935) (emphasis supplied):

All taxes, other than polls, are either direct or indirect property taxes. A direct tax is one that is imposed directly upon property, according to its value. It is generally spoken of as a property tax or an ad valorem tax. An indirect tax is a tax upon some right or privilege, or corporate franchise, and is most often called an excise or occupational tax.
An excise and property tax, when the two approach each other, ordinarily may be distinguished by the respective methods adopted for laying them and fixing their amounts. If a tax is imposed directly by the Legislature without assessment, and its sum is measured by the amount of business done, income previously received, or by the extent to which a taxable privilege may have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of such taxpayer’s assets or his investments in business, it is to be regarded as an excise tax. But, if the tax is computed upon the valuation of the property, and assessed by assessors, either where it is situated or at the owner’s domicile, although privileges may be included in the valuation, it is considered a property tax.

Perhaps even more indicative of the legislature’s intended scope of Section 624.-520 is its usage of the word “preemption.” Words of common usage, when used in a statute, should be construed in the plain and ordinary sense. See Pedersen v. Green, 105 So.2d 1 (Fla.1958); 30 Fla.Jur., Statutes, § 87 (1974). Webster's Third New International Dictionary (1976) defines the word “preemption” as meaning “[t]o seize upon to the exclusion of others: to take for oneself: appropriate.” Roget’s International Thesaurus (4th ed. 1974) lists the word “preempt” under the generic term “taking”, and under the subgeneric term “appropriate”. Also listed under the word “appropriate” are the synonyms “take for oneself”, “pre-possess”, “conquer”, “monopolize”, and “possess oneself of.” This grouping indicates that the word “preempt” connotes more than just the act of taking away; it connotes also the ability of an entity to possess and use that which is taken. Such a connotation is also consistent with examples given in Black’s Law Dictionary (5th ed. 1979) as to how the word has been used in a legal context.

Thus, the legislature, by enacting Section 624.520, cannot constitutionally “preempt” the counties from levying ad va-lorem taxation. Article VII, Section 1(a), Florida Constitution of 1968 provides:

No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted except as provided by general law. (e. s.)

Article VII, Section 9, further provides:

Counties, school districts, and municipalities shall ... be authorized by law to levy ad valorem taxes.

Article VII, Section 9, by the use of the mandatory word “shall”, appears to mandate the legislature to authorize only the counties the power to levy ad valorem taxes. Compare Tascano v. State, 393 So.2d 540 (Fla.1980) (reh. den., February 27,1981). Hence, it does not appear that the legislature has the power to revoke the counties’ authority to levy such taxes in part or in full. Even if the legislature has the power to take away or restrict a county’s ability to levy ad valorem taxes, it cannot “preempt” that power because it is prohibited from exercising the power itself by virtue of Article VII, Section 1(a). Therefore, it cannot be assumed that the legislature intended to include ad valorem taxation within the species of taxes preempted by Section 624.520. A statute should be construed, if possible, to avoid a conclusion that is unconstitutional, Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965) (cert. den., 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed. 301), so as to avoid absurd results. Sharon v. State, 156 So.2d 677 (Fla. 3d DCA 1963). Therefore, an ad valorem tax is not preempted by Section 624.520, Florida Statutes.

Finally, if one looks at the appellant’s use of the capitalization of Tele-Trip’s assumed minimum income in preparing the leasehold interest’s ad valorem tax assessment, it is apparent that such method of assessment has nothing to do with an income tax, or a tax measured by income, or the volume of transactions as defined in Section 624.520. This is because Section 193.011 specifies that in computing the just valuation of ad valorem property a “property appraiser shall take into consideration the following factors: ... (7) The income from said property. ...” The Supreme Court has recognized that although a property appraiser may not have the property owner’s actual income figures, if he has such data as would aid in determining the assessment, he would be remiss if he did not consider it. Palm Corporation v. Homer, 261 So.2d 822, 823 (Fla.1972), reh. den., on remand, 264 So.2d 120 (Fla. 3d DCA 1972); see also, Cassaday v. McKinney, 296 So.2d 94, 96 (Fla. 2d DCA 1974). The use of the minimum rent by the appellant in computing the assessment on Tele-Trip’s leasehold interest is not inconsistent with Section 624.520, and it is entirely consistent with Section 193.011.

Reversed and remanded for further proceedings consistent with this opinion.

BOOTH and JOANOS, JJ., concur.

      . The parties have at no time contended that Tele-Trip is not an “insurer” or an “agent” of an insurer within the meaning of Section 624.-520(1), Florida Statutes (1971). The record reveals that Tele-Trip is a wholly owned subsidiary of Mutual of Omaha Insurance Company.

      . City of Opa-Locka, supra, involved Section 624.0318, Florida Statutes. It has since been repealed. The statute was the apparent predecessor to Section 624.520, Florida Statutes (1971). The wording of that statute was similar to Section 624.520, Florida Statutes.


author: JOANOS, Judge.

text:
    Jean D. AMIKER and Maurice Amiker, her husband, Appellants, v. MID-CENTURY INSURANCE COMPANY, a corporation, a subsidiary of Farmers Insurance Group, Appellee.
    No. VV-499.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 9, 1981.
    Tom C. Meers, Jacksonville, for appellants.
    Charles T. Boyd, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   JOANOS, Judge.

This appeal is from the dismissal with prejudice of Amikers’ complaint against Mid-Century Insurance Company [“Mid-Century”]. Essentially, the only ground for the dismissal was the Amikers’ failure to amend the complaint to include a copy of the insurance policy on which their cause of action was based. The Amikers’ have argued that a dismissal with prejudice was inappropriate considering the allegations made in the complaint and the stage of the proceedings, and we agree.

The Amikers’ complaint alleged that an agent for Mid-Century and the Amikers entered into an agreement where for consideration, Mid-Century would provide the Amikers with automobile liability insurance (specifically, uninsured motorist coverage.) According to the complaint, Mrs. Amiker suffered injuries as a passenger in an automobile involved in a collision between uninsured motorists. The Amikers alleged that Mrs. Amikers’ injuries were compensable under the terms of the policy but Mid-Century had refused demands for payment. The complaint set forth the policy number, the policy period, the type of coverage, and the limits of liability. Although a copy of the policy was not attached to the complaint, the Amikers alleged that despite repeated requests, Mid-Century had refused to deliver a copy of the policy to the Ami-kers. In addition, the complaint alleged that the policy was available to Mid-Century and that when produced by Mid-Century it would be incorporated into the complaint by reference.

Mid-Century responded to the complaint by filing a motion to dismiss on the ground that the complaint failed to state a cause of action because no copy of the insurance policy or application for insurance was attached to the complaint. While a decision on the motion was pending, the Amikers sent interrogatories and requested Mid-Century to produce a copy of the insurance policy and other related documents. The record does not reflect any response by Mid-Century to the Amikers’ request for production of the policy, although Mid-Century did file a response to the interrogatories the day after the court granted the motion to dismiss with 10 days leave to amend. The Amikers did not amend but instead filed a motion for rehearing in which they stated that neither a copy of the policy nor the application was in their possession to enable compliance with the court’s order to amend and that Mid-Century had refused to furnish the Amikers with a copy of the policy. After hearing on this motion the court ordered that the complaint be dismissed with prejudice on consideration of “plaintiff’s counsel having advised the court that he does not desire to amend the complaint.”

Mid-Century urges that dismissal with prejudice was appropriate because Rule 1.130(a) of the Florida Rules of Civil Procedure requires material portions of the contract upon which the action is brought to be incorporated in or attached to the pleading. As pointed out by the Second District Court of Appeal in Sachse v. Tampa Music Co., 262 So.2d 17 (Fla.2d DCA 1972), the object of this rule is to apprise the defendant of the nature and extent of the cause of action so that the defendant may plead with greater certainty. The court refused to apply the rule, however, to justify dismissal of a count for failure to attach a copy of the contract where the complaint alleged that the defendant was a party to the contract and that the contract was not in the pleader’s possession. Under these circumstances, stated the court, the pleader should be given an opportunity to establish the contract’s existence by discovery. See also Parkway General Hospital v. Allstate Insurance Co., 393 So.2d 1171 (Fla.3d DCA 1981).

We agree with both the result and reasoning of the Sachse court concerning the proper application of Rule 1.130(a). That rule must be read in conjunction with Rule 1.010, which states that the Florida Rules of Civil Procedure “shall be construed to secure the just, speedy and inexpensive determination of every action.” Dismissal of a complaint, particularly dismissal with prejudice, is a severe sanction to impose and certainly an unjust sanction where it results from actions beyond the pleader’s control. In this case, the Amikers could not attach to the complaint what they did not have. They had initiated discovery proceedings intended to provide them with a copy of the policy or to lead them to other information proving the existence and contents of the policy. Although the trial judge initially dismissed the complaint with 10 days leave to amend, the Amikers’ ability to amend the complaint was directly tied to their success in obtaining a copy of the policy from Mid-Century. When the complaint was later dismissed with prejudice for failure to amend, Mid-Century had not even responded to the Amikers’ motion to produce, a copy of the insurance policy or other related documents. Such a strict interpretation of Rule 1.130 could effectively foreclose any cause of action based upon a contract where the pleader did not have possession of the contract. The other party to the contract could move to dismiss the complaint for failure to comply with Rule 1.130 then merely refuse or inadequately respond to any discovery attempts while sardonically watching the pleader’s futile “leave to amend” slip away. Such a result was not intended under Rule 1.130, and the trial court erred by not allowing the Amikers full use of discovery to ascertain the material provisions of the policy or to obtain a copy of the policy.

We further note that Rule 1.130(a) does not require attachment of the entire contract, only attachment or incorporation of the contract’s material provisions. Thus, even if the Amikers fail to obtain a copy of the policy through discovery, they may be able to procure sufficient information about the policy’s contents to adequately allege the material provisions in an amended complaint.

REVERSED and REMANDED for proceedings consistent with this opinion.

ERVIN and BOOTH, JJ., concur.

      . As a second ground for dismissal, Mid-Century also stated that the “bald statement” that the vehicles were uninsured was insufficient. Mid-Century does not argue on appeal that this assertion is supportive of the court’s ultimate dismissal of the complaint.

      . The Amikers also advised the court that they had furnished Mid-Century with a binder and a receipt for payment on the policy. Beyond this assertion, there is no record evidence of the existence of either a binder or a payment receipt. Being outside the record and outside the allegations of the complaint, we cannot consider their effect, if any, on the complaint’s dismissal.


text:
    Franklin Delano PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. WW-347.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 12, 1981.
    Henry E. Davis and Alfred Washington, of Smith, Monroe & Washington, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of multiple convictions and sentences which we affirm except as to the trial judge’s retention of jurisdiction, pursuant to Section 947.16(3) Florida Statutes, for review of any parole release order. This statute was enacted subsequent to the commission of the offenses in the present case and, since it substantively alters appellant’s situation to his disadvantage, retroactive application of the provision would be ex post facto in effect and is thus impermissible. State v. Williams, 397 So.2d 663 (Fla.1981), 6 FLW 263; Rodriquez v. State, 380 So.2d 1123 (Fla. 2nd DCA 1980); cf., Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 17 (1980).

Accordingly, we reverse insofar as the trial judge retained jurisdiction to review parole release orders, and remand the cause for deletion of that portion of the orders of commitment. The judgments of conviction and sentences are otherwise affirmed.

SHIVERS and WENTWORTH, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.