author: LETTS, Chief Judge.

text:
    INTERNATIONAL INSURANCE COMPANY, American Home Assurance Company, Federal Insurance Company, Palm Beach Towers Condominium Association, Inc., and Merchant Police of the Palm Beaches, Inc., Appellants, v. Frederick E. M. BALLON, et al., Appellees.
    No. 79-1473.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.

      Montgomery, Lytal, Reiter, Denney & Se-arcy, Larry Klein, West Palm Beach, and Karon, Morrison & Savikas, Chicago, Ill., for appellant International Ins. Co.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellant American Home Assurance Co.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Miami, for appellant Federal Ins. Co.

      Magill & Reid, P.A., Palm Beach, and Edna L. Caruso, West Palm Beach, for appellant Palm Beach Towers Condominium Ass’n, Inc.
    J. Burke Culler, Jr. of Adams, Coogler, Watson & Smith, West Palm Beach, for appellant Merchant Police of the Palm Beaches, Inc.
    Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellees.
    Thomas E. Kingcade and Jack S. Cox of Levy, Plisco, Shapiro, Kneen, Kingcade & McCarthy, P.A., Palm Beach, for appellees Harold Hassenfeld and Harold Rosenthal.
   LETTS, Chief Judge.

This appeal results from the granting of a new trial in favor of certain plaintiff condominium unit owners who suffered first an adverse directed verdict in favor of one defendant at the close of the plaintiffs’ case and later on an adverse jury verdict as to all other defendants. The suit, filed by said unit owners against the condominium association, the association’s officers and directors, and the independently contracted for security guard service, was predicated on the alleged negligence of the defendants being the proximate cause of the loss of valuable possessions stolen from commonly located safety deposit boxes which were broken into and ransacked during the course of a major and successful nighttime robbery. We reverse.

Addressing ourselves first to the trial judge’s change of heart as to the directed verdict in favor of the security guard service at the close of the plaintiffs’ case, we are convinced he erred in basing the rescission of it on “testimony presented in the [remaining] defendants' case” (emphasis supplied). By the time the trial progressed to the point where the remaining defendants put on their defense, the successful recipient of the directed verdict had ceased to be a defendant and was long gone home rejoicing, because the unit owners had failed to present a prima facie case of negligence against it. Our reading of the record supports that directed verdict and it was improper to resurrect the issue, in absentia, by way of facts and circumstances emerging from the testimony of, and the evidence from, the remaining defendants during the presentation of their defense. See Fish Carburetor Corporation v. Great American Insurance Company, 125 So.2d 889, 892 (Fla. 1st DCA 1961); Tillman v. Baskin, 260 So.2d 509 (Fla.1972) and H. Trawick, Florida Practice & Procedure § 22-13 (1980).

Notwithstanding the foregoing, the unit owners argue that the trial judge’s decision to rescind the directed verdict was not merely grounded on testimony presented in the remaining defendants’ case but also upon “further consideration.” They thus suggest that the further consideration was in fact a reexamination of the plaintiffs' case. However, the trial judge did not so state and the language employed appears to be only of the “boiler-plate” variety. Even if he did intend a re-examination of the plaintiffs’ case, it would have been insufficient to merely incant the words “upon further consideration.” Obviously the rescission of the directed verdict under the facts of this case and under the language of the trial court’s order, was a grant of a new trial against the recipient of the directed verdict. This being so, we are of the belief that the trial court would be required to “articulate reasons for so doing so that the appellate courts may be able to fulfill their duty of review.” Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978). The words “upon further consideration” fall far short of any such requirement. We conclude the directed verdict must be reinstated.

Passing next to the judge’s grant of a new trial to the unit owners, notwithstanding a jury verdict for the remaining defendants, we begin by setting forth the judge’s order in pertinent part:

THIS CAUSE came before the Court on Plaintiffs’ Motion for a New Trial, and other motions. After argument of counsel, and having been fully advised in the premises, the Court finds as follows:
1. The Palm Beach Towers Condominium was robbed the night of April 14, 1976. Plaintiffs had just returned to their apartments after having celebrated Passover, a religious holiday. Most of the Plaintiffs were retired winter residents and all were very wealthy. The jury’s verdict was adverse to Plaintiffs and, very likely, was based upon prejudice. The Court observed from the Bench that most of the jurors were inattentive after the first two days of a lengthy thirteen-day trial.
The jurors were given full-sized legal pads to take notes. Counsel agreed to this procedure because of the alleged losses consisting of hundreds of individual items of jewelry amounting to millions of dollars. The Court further observed that only a few of the jurors were interested enough to take notes, and several did not take any notes. The Court reasonably concludes that many of the jurors had made a decision long before the testimony had been completed. The verdict in this case was clearly contrary to the manifest weight of the evidence.
2. The Court may have committed error in allowing confusing jury instructions as to gross negligence and simple negligence, and in failing to explain the different application to each defendant.
3. The Court should not have allowed witnesses Richard Duncan Pearson and Richard Kellogg to give opinion testimony when neither witness was qualified as an expert, and as to Richard Duncan Pearson, allowing his testimony when Plaintiffs were precluded from testing his knowledge and the basis of his opinions since he refused to answer questions relating to specific crimes and robberies committed by him in the past.
4. * * *
5. The Court, in an attempt to be fair, allowed counsel for the Defendants to exhibit conduct which far exceeds the bounds of advocacy. The Court did not restrain Defendants’ counsel which it should have done, and as a result the jury was prejudiced by the forward, overzealous, aggressive, abrasive and at times obnoxious, conduct by Defendants’ counsel toward Plaintiffs, Plaintiffs’ counsel and the Court.
Therefore, based upon the foregoing, it is
ORDERED AND ADJUDGED that the aforesaid errors deprived Plaintiffs of a fair and impartial trial and, in the interest of justice, a new trial is hereby granted in this cause against all Defendants.

Appellate review of this order requires us to revisit the tension between the twin theories discussed in Wackenhut Corp. v. Canty, supra. On the one hand, we again acknowledge the rule that when substantial competent evidence is presented to the jury, its verdict should not be disturbed absent a showing that the jury was deceived by the evidence or influenced by outside considerations. On the other hand, we also acknowledge the rule of broad discretion which imparts to the trial judge the authority to grant a new trial when he concludes that the verdict is against the manifest weight of the evidence or if he determines the jury has been influenced by extra-record considerations or misled by the force and credibility of the evidence. In Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1221 (Fla.1978), this court, based on the facts in that case, opted in favor of the latter doctrine and indeed in Wackenhut, which came later, the Supreme Court also seemed to favor the broad discretion rule. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980) and Ford Motor Company v. Kikis, 401 So.2d 1341 (Fla.1981). However, the Wackenhut court was careful to add that although the trial court is in a better position to pass on the ultimate correctness of a jury verdict, “superior vantage point does not give a trial judge unbridled discretion to order a new trial” and he must give reasons for it in order to “facilitate intelligent appellate review.” Id. at 434.

Such back and forth transfer of the power to decide ultimate correctness is somewhat reminiscent of spectators’ heads during a tennis match, but we conclude from Wackenhut that the ball is squarely back in our court, so that we are charged with the authority to examine the trial judge’s “reasons” for ordering the new trial. We have done so and we find them wanting.

The trial court’s order initially stated that the jury verdict was “very likely based upon prejudice.” What prejudice, and how likely? After the quoted words, the ensuing sentence in the order indicates that the prejudice may have been inattentiveness, but the two preceding sentences suggest obliquely that there may have been some anti-Semitism and antipathy to wealth. As to those two preceding sentences, neither the anti-Semitism nor antipathy to wealth is explained or illustrated and we cannot be sure the former was even intended. Moreover, the unit owners were largely suing their own directors and their own association, composed of fellow unit owners, so we cannot discern why the prejudice, if any, would not apply equally to both sides. This alleged prejudice was not alluded to in the motion for a new trial.

As to the stated inattentiveness of the jury, surely sometime during the trial the court or somebody would have commented on this inattentiveness and thus have a record of it. Further, 58 Am.Jur.2d New Trial, § 95 indicates that there have been few cases in which new trials have been granted because of the inattentiveness of jurors and that it is incumbent upon the moving party to show prejudice because of such inattention. Moreover, it is against public policy to inquire into the motives of, and influences on, a jury. “Thus, inquiry is proper only in such cases involving matters extrinsic to the verdict such as arrival at the verdict by lot or quotient, improper contact with a juror or misconduct of a juror; investigation of the subjective decision-making process of the jury is not permissible.” Kirkland v. Robbins, 385 So.2d 694, 695 et. seq. (Fla. 5th DCA 1980).

In consequence, we are of the opinion that no reversible prejudice was shown other than by the judge’s bald statement that it “very likely” existed. We find this insufficient and again note it was a subject not broached in the motion for a new trial.

In the next paragraph of the court’s order, still pursuing the inattentiveness of the jurors, it is set forth that the court observed only a few of the jurors “interested enough” to take any notes. We can find no authority for granting a new trial because of lack of note-taking. The court goes on to “reasonably conclude” that “many of the jurors had made a decision long before the testimony had been completed.” We believe this bare conclusion would be inadequate under Kirkland, supra. The court completes this paragraph by stating that the verdict was clearly contrary to the manifest weight of the evidence. Again we think this bare statement without more specificity as to why not, does not meet the Wackenhut test. The record is replete with testimony and evidence which would reasonably support the jury verdict. We cannot conclude to the contrary from the trial court’s order as set forth.

The trial judge’s next reason that it “may have” committed error in allowing confusing jury instructions as to gross negligence and simple negligence, and in failing to explain the different application of them as to each defendant, was also erroneous. We have read and re-read the instructions given, many of which were of the standard variety and all appear capable of being understood. We are not in a position to state with certainty that the jury was not confused, for indeed absolutely correct jury instructions are quite often complicated and perhaps confusing to the average layman. However, we are in a position to state that there is nothing in the record to bolster the trial judge’s equivocal conclusion that the jury “may” have been confused in this case. Moreover most of the instructions were supplied by the unit owners and few objections were lodged against those given.

Without a laborious setting forth of all the instructions asked for, given and denied, we hold that there were sufficient, unobjected to, understandable instructions given which sufficiently identified the issues and which correctly stated the law. This being so the instructions submitted to the jury were adequate and in any event did not rise to the level of reversible error nor constitute grounds to support the grant of a new trial.

The third numbered reason in the judge’s order was that the court should not have allowed two non-expert witnesses to give opinion testimony, and should not have prevented plaintiffs from testing one of these witness’s knowledge after he refused to answer questions relating to specific crimes and robberies committed by him in the past.

This aspect of the appeal provides a vehicle to yet again ask the always fascinating question: What is an expert? The definition set forth in the Florida Rules of Civil Procedure, Rule 1.390(a)(1981) appears guileless enough and defines an expert witness, in pertinent part, as “one possessed of special knowledge or skill about the subject upon which he is called to testify.” That sounds relatively easy to understand and implement, but in reality whether or not a witness can give expert opinion testimony in any given case presents all kinds of problems. See, for example, C. Erhardt, 5 Florida Practice, Evidence § 702.1 (1977). Nicholas Murray Butler, former President of Columbia University, in a commencement address, gave his oft quoted tongue-in-cheek definition of an expert as “one who knows more and more about less and less.” Wigmore suggests that, basically, expertness is the “skill to acquire accurate conceptions” and that such skill “comes from circumstances which may be broadly summed up by the term ‘experience’.” Wigmore on Evidence, Testimonial Qualifications, § 555 (3d Ed. 1940).

In the case at bar, the court’s decision to allow the opinion testimony of the two witnesses in question was not error, because we conclude that they should have been qualified as experts. Accordingly it would appear that his decision to let them testify was an example of the trial judge being right for the wrong reason. Firestone v. Firestone, 263 So.2d 223 (Fla.1972). In so concluding, we are not unaware that “it is for the trial court to determine whether or not the witness has been shown to possess the requisite qualifications and special knowledge to warrant his so testifying and the decision of such trial court is conclusive on the point unless it appears from the transcript to have been erroneous.” Harvey v. State, 176 So. 439, 440 (Fla.1937) (emphasis supplied).

Reference to the transcript in the case now before us reveals that the two witnesses in question were basically being called to testify about how relatively easy it is for professional criminals to foil burglar alarm systems and open safety deposit boxes, a fact not known to the average layman as a matter of common knowledge. In this regard the two witnesses obviously had experience, special knowledge, training, and education coming out of their ears. The first was a senior police officer formerly with the FBI and possessed of over 30 years experience, many of them investigating burglaries and robberies involving burglar alarms and safety deposit boxes. The second witness was a notorious long-time thief who had participated in countless robberies involving alarm systems and many with safety deposit boxes. He had become an expert in electronics and he even taught courses on the subject to fellow prisoners.

Given all this on-the-spot experience and training, it is hard indeed to understand why they were not experts in the realm in which they were asked to testify. However, even if we are wrong, many other witnesses testified on the same subject matter so that the testimony was merely cumulative.

Finally, we view as insignificant the problem of not being able to further examine the long-time thief about other crimes he had committed, relative to which he took the fifth amendment. The witness readily identified many of his “scores.” His failure to identify still other unspecified ones was not material to the main issues of this cause and the jury was well aware of his prolific criminal past.

Accordingly we determine the grant of a new trial on this issue was in error.

The court’s final enumerated reason for a new trial was:

The Court, in an attempt to be fair, allowed counsel for the Defendants to exhibit conduct which far exceeds the bounds of advocacy. The Court did not restrain Defendants’ counsel which it should have done, and as a result the jury was prejudiced by the forward, overzealous, aggressive, abrasive and at times obnoxious, conduct by Defendants’ counsel toward Plaintiffs, Plaintiffs’ counsel and the Court.

We think this too is insufficient. The unit owners state that they did object to the behavior of defense counsel, but they offer no citations to the record. Nor did the court point to, or specify, any of the obnoxious behavior. Indeed it is not uncommon for lawyers to be “forward, overzealous, aggressive, abrasive and . .. obnoxious.” If such behavior is to be reversible it must, at a minimum, be objected to and preserved for appeal or be commented on by the judge with specificity. See Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978). Even the Appellees’ brief makes no specific reference to the alleged obnoxious behavior but merely sets forth a (and we paraphrase) “It-doesn’t-show-up-in-the-record-because-it-was-intangible,-but-believe-us-it-was-bad” kind of argument. We simply cannot sustain the ruling on such advocacy, especially when the obnoxious behavior was not even included as grounds for a new trial.

From the sum of all that we have written, we therefore conclude, as did the Supreme Court in Wackenhut, that the trial judge in this case acted as a seventh juror with veto power. “The province of the jury ought not to be invaded by a judge because he raises a judicial eyebrow at its verdict.” Id. at 437.

REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A FINAL JUDGMENT IN ACCORDANCE HEREWITH.

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

      . The chosen division and wording into two paragraphs of the first numbered point in the judge’s order is somewhat confusing in that the content of each paragraph appears to jump back and forth between prejudice, inattentiveness and the manifest weight of the evidence. Nonetheless we discuss the language in the same chronological order so as to avoid any possibility of distortion. As a result, however, this portion of our opinion is similarly disjointed.

      . We recognize that several insurance companies were also named defendants. However there is no showing of prejudice in their favor.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Hale TURK, Petitioner, v. STATE of Florida, Respondent.
    No. OO-305.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Joseph Hale Turk petitioned this Court for issuance of a writ of common law certio-rari to review an order of the Circuit Court of the Fourth Judicial Circuit acting in its appellate capacity. The Circuit Court affirmed Turk’s conviction in County Court for driving with an unlawful blood alcohol level. We grant the writ.

The only evidence of Turk’s blood alcohol level was that shown by the result of an intoximeter test. Section 322.262(3), Florida Statutes (1977), provides:

Chemical analyses of the person’s blood or breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department of Health and Rehabilitative Services is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Health and Rehabilitative Services. [Emphasis supplied].

During the trial the state introduced, over Turk’s objections, documents appearing to be certificates registering the intox-imeter used in testing Turk and establishing the qualifications of the persons operating the machine. Both documents were photographic copies bearing an original seal, but no original signatures. They were introduced through the testimony of an employee of the Sheriff’s Department who testified that he was in charge of “maintaining” business records of the jail, but he was not the custodian of them. Furthermore, he testified that he obtained the documents from the custodian of them and that he knew they were copies of the original because they carried the seal of the agency, they were a matter of record with the Sheriff’s Department, and “in numerous conversations that I have had with Officer Wilson [the custodian] he has assured me that is the authorization of the machine.”

The trial court and the circuit court ruled that the documents were admissible under Sections 92.29 and 92.35, Florida Statutes (1977). In so ruling the circuit court stated, “These copies were properly qualified as having been reproduced in the regular course of business by either the Division of Health, or the Office of the Sheriff in the regular course of business of those organizations.” We disagree. There is a total lack of evidence in this record as to how these documents came to be reproduced.

Section 92.35 provides that a copy of a public record kept in the regular course of business is as admissible in evidence as the original “when satisfactorily identified.” In the instant case, there is no qualifying testimony by the custodian of the document as to how it came to be, who it came from, who reproduced it, or any other information which identifies it. Even if the document were, as the state contends, an original, there would have to be a proper predicate for its introduction. Section 92.36, relating to the admissibility of business records, requires that the custodian or other qualified witness testify “. . . to its identity and the mode of its preparation, and if it was made in the regular course of business. . . . ” The witness’s knowledge concerning the document was based totally on what he was told by the custodian, not on his own knowledge.

Finally, regarding the state’s reliance on Section 92.18 and the fact that the document contained the imprint of an original seal, we note that 92.18, Florida Statutes (1977) relates to the “certificate of any state officer, under his seal of office . .. . ” Here, there is no certificate; there is just the seal. Based on our reading of Section 92.12, Florida Statutes (1977), had there been a certification, under hand and seal, of the officer who had custody of the original document, then the document would be as admissible as the original. There would, of course, still need to be a proper predicate for the admission of the original. This is consistent with the evidence code now in effect. Under Section 90.902 Florida Statutes (1979), a document is self-authenticated if it bears an authorized seal and a signature by the custodian of the document attesting to the authenticity of the seal.

Had the documents at issue been excluded at trial, the blood alcohol test results would not have been admissible since they are admissible only upon compliance with the statutory provisions and the administrative rules. State v. Bender, 382 So.2d 697 (Fla.1980); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979), rev’d on other grounds, 390 So.2d 62 (Fla.1980); State v. Wills, 359 So.2d 566 (Fla. 2d DCA 1978).

The fact that an appellate court errs “does not necessarily mean that it has either exceeded its jurisdiction or departed from the essential requirements of law.” Grandin Lake Shores Assoc., Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977). Where, however, the judgment is without competent substantial evidence to support it, then it cannot and should not stand and affirmance of that judgment is a departure from the essential requirements of law. Cohen v. State, 99 So.2d 563 (Fla. 1957).

Accordingly, the petition for writ of common law certiorari is granted and the order of affirmance by the circuit court is quashed.

MILLS, ERVIN, and SHIVERS, JJ., concur.


text:
    James Edward LOVETT, Appellant, v. STATE of Florida, Appellee.
    No. VV-169.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

Existing case law contains no exception to support this warrantless search. There is no doubt that the officer acted in good faith; however, Florida has not at this point recognized a good faith exception to the warrant requirement. See Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981).

This search cannot be permitted under the exception condoning inventory of the vehicle and cannot be condoned under the theory of impoundment. The facts will not support abandonment. Therefore, the order denying suppression of the evidence must be reversed.

Appellant pled nolo contendere reserving the right to appeal the trial court’s denial of his motion to suppress. On this particular night Deputy Mulkin of the Escambia Sheriff’s Department was on routine patrol and had passed this particular location some twenty (20) minutes prior to his return, when he observed a large spot of water in the street and a palm tree which had been knocked down on the side of the street. Upon further investigation, he discovered a car bearing a Louisiana license tag directly across from the fallen tree. The car was locked and parked in a private driveway. There was extensive damage to the front end of the car and palm tree bark adhering to the body of the car. It was obvious that the vehicle had been involved in this accident and could not be moved without the assistance of a wrecker.

Deputy Mulkin had his radio dispatcher notify the highway patrol of the accident, since the sheriff’s department does not handle traffic accidents. He then went to the house where the car was parked, but found nobody at home. He checked at some other nearby homes, but was unable to find out anything about the apparent accident. In an attempt to determine the ownership of the car, Deputy Mulkin had the dispatcher run a computer check on the license number and the vehicle identification number (VIN) of the car. However, due to computer malfunction, the report came back as “not in file.” Much later that evening, the ownership of the car was identified through the highway patrol computer.

In the meantime however, while attempting to discover the identity of its owner, Mulkin went back to the car, reached inside a partially open window on the passenger’s side, and unlocked the door. He then opened the glove compartment to look for the car registration and discovered three (3) bags of brown vegetable matter which appeared to be marijuana. He moved the marijuana out of the way and took out some papers which, upon examination, revealed the name of this appellant, James Edward Lovett, and another man. While still pursuing information of ownership, he continued his search. He observed a large paper bag on the floor behind the front seat. He opened the bag and found pills, later identified as Percocet. The bag also contained some documents which identified Lovett as the owner of the car.

At the hearing on the motion to suppress, Deputy Mulkin was the only witness and his testimony constituted the only evidence before the trial judge. The judge subsequently entered an order denying appellant’s motion to suppress, for the reason that the search had only been made in an attempt to identify the owner of the vehicle and therefore the search was neither unreasonable nor unlawful.

Appellant was charged with possession of Percocet in Count I and possession of more than twenty (20) grams of cannabis in Count II, both in violation of Section 893.-13(l)(e), Florida Statutes. He pled nolo contendere to the information and reserved the right to appeal the court’s order denying his motion to suppress.

He maintains here that the denial constituted reversible error. The State in its brief, questions appellant’s lack of standing to challenge the search and cites the recent federal cases supporting its position. Unfortunately there was no objection at the trial level and this point was not even touched upon. Therefore it is not properly before this Court for review. Parenthetically, even if it had been raised, the defendant did have standing to contest the search. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). U. S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The State urges that the search is supported by the theory of abandonment and inventory. The car could not under the facts have been abandoned. Deputy Mul-kin had passed this location some twenty (20) minutes previously and had not observed the fallen tree, the water on the street, or the car. The car was locked and parked in a private driveway; and even though there was no one home at the time Deputy Mulkin investigated, for all we know the owner of the driveway could have given Lovett permission to park his car there. In any event, it was not illegally parked as against any existing law. No complaint had been made to any law enforcement agency, and no request for removal; the car was simply parked in a private driveway and the house to which the driveway led was unoccupied at the time.

The law is clear that before an inventory search can be conducted, there must be some necessity for impounding the vehicle. Granville v. State, 348 So.2d 641 (Fla.2d DCA 1977); Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976); Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976). Here, the deputy’s admitted purpose in entering the car was to find the name of the owner, not to inventory and secure the contents for the benefit of the owner or to protect the police from possible liability. The cases are legion supporting inventory searches, but nowhere can there be found authority for an inventory search of a car parked off the street in a private driveway and locked. The fact that the car had an out-of-state license in no way supports a presumption that the car did not belong to the residents of the home or was parked at the home without the residents’ permission. Simply because a vehicle is left unattended does not give anyone the right to search it. This is particularly true if the vehicle is not illegally parked, as was the case here. See Agnew v. State, 376 So.2d 13 (Fla.2d DCA 1979); Granville, supra; Tolbert v. State, 348 So.2d 623 (Fla. 4th DCA 1977); Benton, supra; G. B. v. State, 339 So.2d 696 (Fla.2d DCA 1976).

The State urges us to affirm this search as being justified as a police “community caretaking function” and cites Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court pointed out that disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities, and that the authority of the police to do so is beyond challenge. Id. at 368-369, 96 S.Ct. at 3096-97. The automobile in this case was in no way creating a public hazard or nuisance and thus there was no “community caretak-ing function” involved. There might have been had the owners of the private driveway requested some assistance in removal of the car. See State v. Cash, 275 So.2d 605 (Fla. 1st DCA 1973).

Deputy Mulkin was premature in his search. The problem could easily have been avoided in one of several ways. He could have waited until the highway patrol arrived, it being their duty to investigate accidents. As noted above, the highway patrol computer identified the owner of the car. He could have awaited a complaint from the owner of the driveway so that the car could have been towed into impoundment. None of this occurred; and while he certainly had reasonable cause to investigate an obvious accident, he was without constitutional authority to search a locked car in a private driveway at the time he did so. For these reasons the order denying the motion to suppress is REVERSED and the judgment and sentence is VACATED.

ERVIN, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: McCORD, Judge.

text:
    Stanley Hillary CALHOUN, Appellant, v. STATE of Florida, Appellee.
    No. XX-51.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Michael Minerva, Public Defender and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from the trial court’s revocation of appellant’s probation and subsequent adjudication of guilt of two counts of burglary of a conveyance and sentencing him to two one-year prison terms to run consecutively. We affirm the convictions but remand for determination and credit on the sentence for time appellant was incarcerated on a split sentence and for time spent in the county jail awaiting probation hearings or sentence.

From the record it appears that in April 1977 appellant was arrested on three counts of burglary and three counts of petit larceny. He subsequently pled guilty to two burglary counts, and the remaining counts were nolle prossed. In July 1977 he was adjudged guilty of the two burglary counts and sentenced to two years in the county jail with the provision that after he had served six months, he would be placed on probation for one and half years. Special conditions of probation were that after release from jail, he would reside at an alcohol rehabilitation half-way house and would submit to psychiatric treatment as needed on an out-patient basis.

In August 1978, appellant was arrested on charges of probation violation, and the court thereafter entered an order extending his probation for one year. In April 1979, appellant was again arrested on probation violation charges and subsequently the trial court entered an order directing that appellant be evaluated by the Salvation Army Alcohol Residential Treatment Program in Jacksonville and, if accepted, he would return to the supervision of his probation officer. Then in August 1979, another affidavit and warrant charged probation violation in that appellant had left the Salvation Army Treatment Center without informing his probation officer. In December 1979 the trial court entered an order extending appellant’s probation for an additional two years and requiring that appellant reside at the Jacksonville Community Correctional Center for one year with credit for 19 days jail time. Then in January 1980, appellant was again charged with probation violation in that he had not returned to the Jacksonville Community Correction Center after work on January 11, 1980, and was listed as an escapee. He was thereafter arrested on July 3, 1980, and on July 25, 1980, his probation was revoked and he was sentenced to one year “at hard labor” in the county jail on each of the two burglary counts to run consecutively with credit for 23 days jail time on Count I. Appellant contends that the trial court erred in not giving him credit for the time served in the county jail on the initial split sentence and for all time during which he was thereafter incarcerated during his probation period.

Appellant is entitled to credit on his sentence for the initial six months he served as a condition of his split sentence on probation. State v. Jones, 327 So.2d 18 (Fla.1976); Rice v. State, 356 So.2d 909 (Fla. 1st DCA 1978). Also appellant is entitled to all time he spent in the county jail on the burglary charges, all time served on warrants charging violation of probation and all time served in the county jail as a condition of probation. DeForest v. State, 356 So.2d 52 (Fla. 1st DCA 1978); Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978). Section 921.161(1), Florida Statutes (1979), provides as follows:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for ail of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence. (Emphasis supplied.)

Appellant contends he is entitled to credit for time in treatment center confinement and confinement in the Jacksonville Community Correctional Center pursuant to the above statute. We do not consider that the treatment centers can properly be classified as confinement in the county jail, and thus the statute does not require that credit be given for such time. We recognize that this ruling as to treatment centers conflicts with the ruling of the Second District Court of Appeal in Johnson v. State, 334 So.2d 334 (Fla.2d DCA 1976). We respectfully disagree with that ruling.

We consider that the Jacksonville Community Correctional Center is an adjunct of the Duval County Jail and that appellant is entitled to credit for the time he was confined there.

Appellant contends, and the state agrees, that there is no longer any provision in Florida law for a sentence to be “at hard labor.” We, likewise, agree. See Jabbour v. State, 353 So.2d 202 (Fla.3d DCA 1977).

We have considered appellant’s other point on appeal and find it to be without merit.

We remand with directions that the trial court give appellant credit on his sentence as above specified and that the words “at hard labor” be stricken. The judgments and sentences are in all other respects affirmed.

SHIVERS, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    John BRODERICK, Appellant, v. CALDER RACE COURSE, INC., and St. Paul Fire & Marine Insurance Company, Appellee.
    No. YY-11.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Rehearing Denied Oct. 13, 1981.
    Gerald T. Nolan of Nolan & Usdan, Fort Lauderdale, for appellant.
    George A. O’Brien, Miami Shores, for ap-pellee.
   PER CURIAM.

There is not competent substantial evidence to support the deputy commissioner’s finding that appellant’s work was not of such a nature that it constituted unusual strain or overexertion. From the record, it is apparent that the heart attack suffered by appellant is compensable under the standards pronounced by the Supreme Court in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962).

REVERSED.

McCORD and SHIVERS, JJ., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    CNA INSURANCE COMPANY, Appellant, v. TRAVELERS INSURANCE COMPANY, U.S. Gypsum and Richard E. Haynes, Appellees.
    No. YY-172.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    John C. Taylor, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    Lloyd C. Leemis of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for ap-pellees.
   PER CURIAM.

REVERSED. Sunshine Truck Plaza/Camp Oil Co. v. Tucker, 395 So.2d 265 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


author: THOMPSON, Judge.

text:
    Kirk ANTHONY, Appellant, v. ALACHUA COUNTY COURT EXECUTIVE and The Honorable Osee R. Fagan, as Administrative Judge for the Criminal Felony Division of Alachua County, Florida, Appellees.
    No. YY-442.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Thomas W. Kurrus and Bill Salmon, Gainesville, for appellant.
    Bruce Barkett, Asst. Atty. Gen., Tallahassee, for appellees.
   THOMPSON, Judge.

On this appeal from an Order denying a Motion to Quash Juror Subpoena, the appellant contends that a portion of § 40.013(4), Fla.Stat. (1979), violates the Equal Protection Clause of the Fourteenth Amendment. We agree and hold that a portion of this statute in unconstitutional.

The appellant is a 29 year old widower and the father of a 3 year old boy. The appellant does not work, but he attends school and spends 21 hours a week away from home as a student. In late 1980, he received a notice to appear for jury service. The appellant requested to be excused on the basis of § 40.013(4), Fla.Stat., which provides in part that “mothers who are not employed full time with children under 15 years of age, upon request, shall be excused from jury service.” His request was denied.

The appellant filed a Motion to Quash Juror Subpoena, invoking § 40.013(4), Fla. Stat., and alleging that but for his sex, he would qualify for excusal from jury service. A hearing was held, and the trial court issued an Order denying the appellant’s motion. The appellant subsequently reported for jury service.

Initially, we note that the appellees have raised numerous arguments questioning whether this court may properly review the constitutionality of § 40.013(4), Fla.Stat. We have carefully considered those arguments and we have determined that the constitutional issue is properly before us.

In Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Supreme Court stated that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 197, 97 S.Ct. at 457 (Brennan, J., plurality). Based on the briefs and the oral arguments in this case, the parties implicitly agree that the only sufficiently important and valid governmental objective herein is to ensure that the civil obligation of jury service will not interfere with child-rearing responsibilities. However, § 40.013(4), Fla.Stat., fails to either validly serve or achieve this purpose because the statute does not extend its benefits to fathers and their children.

The statute’s underinclusive scope is not based upon “clear differences between the sexes. . . . ” Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 1209, 67 L.Ed.2d 437 (1981) (Stewart, J., concurring). See, e. g., id. 101 S.Ct. at 1204-06 (Rehnquist, J., plurality); Rostker v. Goldberg, - U.S. -, 101 S.Ct. 2646, 2655-58, 69 L.Ed.2d 478 (1981). Instead, the statute is premised upon impermissible sexual stereotypes. See, e. g., Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-78, 43 L.Ed.2d 688 (1975). As the Supreme Court stated in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), “a father, no less than a mother, has a constitutionally protected right to the ‘companionship, care, custody, and management’ of ‘the children he has sired and raised...,’” and the child-rearing responsibilities of men can be just as great as for women. Id. at 652, 95 S.Ct. at 1235 (citation omitted). Additionally, the fact that there may be many more women than men in a home child-care situation does not save § 40.013(4), Fla.Stat., from constitutional attack — such “predictive empirical relationships” have not justified other gender-based statutes. See Craig, 429 U.S. at 202, esp. n. 13, 97 S.Ct. at 459, esp. n. 13; Wiesenfeld, 420 U.S. at 645, 95 S.Ct. at 1232.

Based on the preceding analysis, we hold that § 40.013(4), Fla.Stat., is unconstitutional insofar as it provides that “mothers, who are not employed full time with children under 15 years of age, upon request, shall be excused from jury service.” Our holding has no effect upon that portion of § 40.-013(4), Fla.Stat., which allows “expectant mothers” to be excused from jury service upon request.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.


text:
    ALACHUA GENERAL HOSPITAL, INC., Petitioner, v. ZIMMER USA, INC., Respondent.
    No. ZZ-188.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Charles B. Carter of Jones & Langdon, P. A., Gainesville, for petitioner.
    A. Graham Allen of Freeman, Richardson, Watson, Kelly & Livermore, P. A., Jacksonville, for respondent.
   PER CURIAM.

By Petition for Writ of Certiorari, Ala-chua General Hospital (Hospital) seeks review of a non-final circuit court order requiring the Hospital’s investigator to answer certain questions, propounded to him on deposition, regarding information obtained during the course of his investigation of a hospital fire. The investigation was conducted through the office of the Hospital’s defense counsel, in anticipation of possible litigation arising out of the incident. Indeed, there was a wrongful death action filed against the Hospital by the estate of a patient who died in the fire. That suit was eventually settled, and the Hospital subsequently instituted the present action against Zimmer USA, Inc., (Zimmer).

The Hospital contends that the questions propounded to its investigator, Mr. Smith, involve information which constitutes work product and is therefore protected from discovery, unless Zimmer proves that it has need of the materials in the preparation of its case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Rule 1.280(b)(2) Fla.R.Civ.P. In its order granting Zimmer’s Motion to Compel, the lower court specifically found that the information sought does not constitute work product, nor is it privileged. We disagree, and accordingly quash the order of the circuit court.

It is clear that communications, reports, memoranda, etc., prepared in anticipation of litigation and passing between a client and his attorney, and/or their employed investigators, are work product. An investigator cannot properly be required, in a discovery deposition, to reveal the contents of such communication or reports relating to the circumstances of the incident or his investigation thereof, absent proof of the adverse party’s need and inability to obtain the materials without undue hardship. See Goldstein v. Great Atlantic and Pacific Tea Company, 118 So.2d 253, 255 (Fla. 3rd DCA 1960). However, the question of whether or not work product retains its qualified immunity after the initial litigation for which it was prepared has terminated, has not before been addressed by a Florida court.

The Federal courts have, on numerous occasions, directly addressed this question while construing Rule 26(b)(3), Federal Rules of Civil Procedure, which is substantially similar to Rule 1.280(b)(2), Florida Rules of Civil Procedure. There is a three-way split of authority on this issue. Some Federal courts have held that work product is protected only in the litigation for which it was prepared, while others have concluded that work product retains its qualified immunity, but only when the subsequent litigation is “closely related” to the previous, terminated litigation. However, the weight of modern authority clearly provides that work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related. This view is based upon the rationale of the landmark United States Supreme Court decision, Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); wherein the principle originated that materials prepared by an attorney in anticipation of litigation should enjoy qualified protection from discovery. The United States Supreme Court incorporated this principle in Rule 26(b)(3), Federal Rules of Civil Procedure, in 1970. However, neither the rule nor the Hickman decision state whether or not the work product doctrine applies to materials prepared in anticipation of previous, terminated litigation. The Eighth Circuit in In re Murphy, 560 F.2d 326 (8th Cir.1977), concluded that it does. In articulating the rationale of Hickman, the Murphy court pointed out that:

The primary purpose of the work product privilege is to insure that an attorney is not inhibited in his representation of his client by the fear that his files will be opened to scrutiny upon demand of an opposing party. Counsel should be allowed to amass data and commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client. The work product privilege would be attenuated if it were limited to documents that were prepared in the case for which discovery is sought.

Id. at 334.

Similarly, in Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973), cert. denied, 420 U.S. 997, 97 S.Ct. 1438, 43 L.Ed.2d 680 (1975), the Fourth Circuit noted that:

While, of course, the court in Hickman was addressing itself to material obtained by an attorney incident to the litigation then in progress, the rationale is scarcely less applicable to the case which has been closed than to one which is still being contested. The decision was not in any manner based upon the rights or posture of the litigants vis-a-vis each other. Such a basis was expressly disavowed. Rather, the thrust of the decision was the qualified protection of the professional effort, confidentiality and activity of an attorney which transcends the rights of the litigants, (footnotes omitted).

Id. at 483. The court in Duplan further pointed out that such a rule will in no way frustrate the ends of justice since, if the party seeking discovery can demonstrate the need and undue hardship specified in the rule, the court will order production of the materials. Id. at 485.

The Murphy and Duplan cases, and the others following this rationale, are well reasoned, persuasive, and in keeping with the spirit of the Hickman decision. Applying this line of cases to the present case, it is clear that the information obtained by Mr. Smith in his investigation of the Hospital fire was work product as to the initial wrongful death litigation, and retains its qualified immunity as to the present litigation. This privilege, of course, would be subject to a showing by Zimmer that the materials in question are needed in preparation of its case, and that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. No such showing has been made in the court below.

The order of the circuit court granting Zimmer’s Motion to Compel is QUASHED, and this case is REMANDED to the trial court for further proceedings consistent with this opinion.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . United States v. IBM Corp., 66 F.R.D. 154 (S.D.N.Y.1974); 71 F.R.D. 376 (S.D.N.Y.1976); Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D. 117 (M.D.Pa.1970); Hanover Shoe, Inc. v. United Shoe Mach. Co., 207 F.Supp. 407 (M.D.Pa.1962); Tobacco & Allied Stocks, Inc. v. Transamerica Corp., 16 F.R.D. 534 (D.Del.1954).

      . Midland Investment Co. v. Van Alstyne, Noel & Co., 59 F.R.D. 134 (S.D.N.Y.1973); Hercules, Inc. v. Exxon, 434 F.Supp. 136 (D.Del.1977); Philadelphia Electric Co. v. Anaconda Am. Brass Co., 275 F.Supp. 146 (E.D.Pa.1967).

      . In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d. 933 (6th Cir. 1980); In re Murphy, 560 F.2d 326 (8th Cir. 1977); United States v. Leggett & Platt, Inc., 542 F.2d 655 (6th Cir. 1976) cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975); United States v. Am. Tel. & Tel. Co., et al., 86 F.R.D. 603 (D.C.Cir.1979); United States v. O. K. Tire & Rubber Co., 71 F.R.D. 465 (D.Idaho 1976); SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D.Conn.), appeal dismissed, 534 F.2d 1031 (2d Cir. 1976); Burlington Industries v. Exxon Corp., 65 F.R.D. 26 (D.Md.1974).


text:
    Richard Galer NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. AB-274.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Rehearing Denied Oct. 13, 1981.

      Alex D. Finch, Clearwater, for appellant.
    Jim Smith, Atty. Gen. and Lawrence Ka-den, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals from the trial court’s denial of his motion for reconsideration of sentence or to set aside judgment and allow a plea of not guilty to be entered. Appellant entered a plea of nolo contendere to possession of more than 20 grams of cannabis. At the plea hearing, the following colloquy took place between appellant and the trial judge:

THE COURT: Now I’ve discussed this matter with Mr. Antonacci and with your lawyer, and I have agreed that any period of incarceration that’s required in this case will be served at the county jail, but that’s the only thing that this court has agreed. Do you understand that?
DEFENDANT: Yes, sir.
THE COURT: Now, with the understanding that this may result in your incarceration in the Leon County jail for a period of up to one year —
DEFENDANT: Yes, sir.
THE COURT: —are you — are you sure this is what you want to do?
DEFENDANT: Yes, sir.

After receiving the presentence investigation report, however, the trial judge sentenced appellant to three years in prison. Because the trial judge could not uphold his portion of the agreement, he should have allowed appellant to withdraw his plea. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978); Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979). Therefore, we reverse and remand to the trial court to impose sentence in accordance with the agreement or to vacate the judgment and allow appellant to withdraw his plea.

REVERSED.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


text:
    Ronald SANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-811.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.

      Bennett H. Brummer, Public Defender and Charlene Carres, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Ronald Sands appeals from a final judgment of conviction and sentence entered in the trial court, finding him guilty of two count of attempted manslaughter with a firearm and one count of the unlawful possession of a firearm while engaged in a criminal offense.

On appeal, Sands contends he was entitled to a directed verdict because of expert testimony which supported his plea of insanity, notwithstanding lay testimony that he acted in a normal manner at the time of the commission of the crime charged. We disagree.

It was within the province of a jury to disregard the expert testimony and to rely solely on the testimony of the lay witnesses. Therefore, the trial court was correct in rejecting the motion for directed verdict. Byrd v. State, 297 So.2d 22 (Fla.1974); Davis v. State, 319 So.2d 611 (Fla. 3d DCA 1975); McClain v. State, 327 So.2d 106 (Fla. 1st DCA 1976); Cozart v. State, 399 So.2d 1097 (Fla. 1st DCA 1981). The State concedes error, at least in the sentencing on the unlawful possession of a firearm count while engaged in a criminal offense. We agree. See: State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Therefore, for the reasons above stated, the convictions on the two counts of attempted manslaughter with a firearm are affirmed. The adjudication on the possession of a firearm while engaged in a criminal offense is affirmed, but the sentence thereon is hereby vacated and set aside. The sentences on the two counts of attempted manslaughter appear to be in violation of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) and are therefore vacated and the matter is returned to the trial court for resentencing, in accordance with the pronouncements in Villery.

Affirmed in part, reversed in part, and remanded to the trial court with directions.

      . There were three experts who testified; two were in agreement that the defendant was suffering from pathological alcohol intoxication and the third was of the opinion that the defendant was suffering from schizoid and psychotic tendencies. Therefore, even the experts were not in agreement as to what was the nature of the alleged illness.

      . No double jeopardy claim was made in the trial court. See: Hines v. State, 401 So.2d 878 (Fla. 3d DCA 1981).


author: FERGUSON, Judge.

text:
    Bert RUDICK, Appellant, v. Charlene June RUDICK, Appellee.
    No. 80-2101, 81-774.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.

      Albert Wilensky, Miami, Gary M. Cohen, North Miami Beach, for appellant.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Jerome H. Shevin, Miami, for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   FERGUSON, Judge.

Bert Rudick appeals from a final order dated October 2, 1980 in which the trial court rejected Rudick’s defense of accord and satisfaction and directed him to pay $1,011.00 to his former wife, appellee Charlene Rudick, as the balance due for payment of the wife’s attorney’s fees and, in addition, assessed $3,682.34 for costs. This court consolidated a second appeal by Bert Rudick from a non-final order holding him in contempt for non-payment of the sums held owing in the October 2, 1980 order. We reverse.

The dispositive issue on appeal is whether there was satisfaction of the agreement between appellant and appellee as to payment of fees and costs when appellee cashed appellant’s checks marked balance in full payment.

On July 10, 1979, the trial court entered a judgment holding appellant liable for $6,000.00 of the wife’s attorney’s fees. The amount of appellant’s liability for costs was left unresolved. Appellant attempted to satisfy the judgment by payments of $100.00 per month. This method was unsatisfactory and a new agreement was entered into with respect to payment of attorney’s fees and amount of costs.

In a letter dated August 28, 1979, counsel for appellee wrote to counsel for appellant confirming the agreement reached through correspondence and telephone conferences whereby Bert Rudick would pay the counsel for appellee a sum of $3,000.00 expected to be generated by amending the 1976 joint tax return of Bert and Charlene Rudick and to pay an additional sum of $4,500.00 to appellee. Such payments were agreed to “constitute a full and complete discharge of all Bert Rudick’s fees and costs, including all of same that have been incurred supplemental to the entry of the Court’s Final Judgment of Dissolution of Marriage.”

On September 27, 1979, counsel for appel-lee wrote to counsel for appellant agreeing to certain changes with respect to time for payment of the tax refund and credits for payments received to date. Counsel for appellee further suggested that the agreed-to changes be incorporated by reference into the prior agreement as set forth in the letter of August 28, 1979.

On October 12, 1979, counsel for appellee acknowledged receipt from Bert Rudick of payment toward his “obligation to pay our attorney’s fees of $6,000.00. . . and his agreement to pay an additional $1,500.00 toward costs in exchange for our not proceeding with the hearing and ruling ... on the costs issue,” as follows:

1.$100 — dated July 27, 1979.
2. $100 — dated August 15, 1979.
3. $100 — dated September 17, 1979.
4. $4,689.00 — dated October 9, 1979.
The above amounts total $4,989.00, leaving a balance due toward your client’s obligation for fees and costs of $2,511.00.
At this time we are awaiting Mrs. Ru-dick to come into our office and sign the amended 1976 tax return, as per her prior indication that she would do so and we are awaiting receipt of her 1977 individual tax return.

On October 19, 1979, counsel for appellee advised counsel for appellant that Mrs. Ru-dick decided not to sign the 1976 tax return which had been prepared by appellant’s accountant pursuant to the agreement. Mrs. Rudick claimed that she refused to sign on the advice of a private accountant that she might become criminally liable if she signed.

On October 20, 1979, counsel for appellee cashed the four checks received from appellant. Appellant had written on each of the three checks for $100, “legal fee” and on the check for $4,689.00 wrote, “$300 paid, $2,511 Tx. Refund; balance of all fees & costs.” Appellee’s attorneys endorsed the checks for deposit only to their firm account. There was no reservation of right written on the check or other notation indicating this was only a partial payment.

On November 20, 1979, appellee filed a motion for ruling on assessment of costs against appellant resulting in the October 2, 1980 order above.

A defense of accord and satisfaction involves a two-step process of proof that (1) the parties mutually intended to effect settlement of an existing dispute by entering into a superseding agreement, see, e. g., United States Rubber Products, Inc. v. Clark, 145 Fla. 631, 200 So. 385 (1941); Hannah v. James A. Ryder, Corp., 380 So.2d 507 (Fla. 3d DCA 1980), and (2) there was actual performance with satisfaction of the new agreement which acted to discharge the debtor’s prior obligation, see, e. g., Hannah v. James A. Ryder, Corp., supra.

A superseding agreement may take the form of either an executory accord which requires actual performance before the original obligation of the parties is satisfied or a substituted agreement which results in immediate discharge of the original claim. See Montagna v. Holiday Inns, Inc., 269 S.E.2d 838 (Va.1980), citing, Restatement of Contracts, §§ 417-19; 6A Corbin, Contracts, §§ 1268-92 (1962); 15 S. Williston, Contracts, §§ 1838 — 48 (3d ed. 1972); Annot. 94 A.L.R.2d 504 (1964). If the claim is disputed or unliquidated, the presumption should be that there is a substituted agreement rather than an executory contract of accord; if the obligations are liquidated, it will generally be presumed that the creditor did not intend to surrender his prior rights unless and until the new agreement is actually performed. J. Calamari and J. Perillo, Contracts, § 21-6 (1977).

Based on the above facts and law, we find that Bert and Charlene Rudick mutually intended to effect a settlement of an existing dispute by entering into an ex-ecutory accord providing that payment by Bert Rudick of $7,500.00 would satisfy his liability to Charlene Rudick for attorney’s fees and costs. See, e. g., United States Rubber Products v. Clark, supra; Hannah v. James A. Ryder, Corp., supra.

Because we find the parties intended to reach an accord, we must next consider the issue of satisfaction. Here, appellant has performed as required by the agreement. He had the tax return prepared at his expense according to the provisions in the agreement, and paid the additional sums agreed to. It was clearly understood by all parties that payment under the agreement required that appellant sign the amended tax return. Yet with full knowledge that appellee had breached the terms of the accord by failing to sign the prepared tax returns — and thereby lost receipt of funds generated by the tax return — attorneys for appellee cashed the three checks for $100.00 which had previously been held in escrow and, at the same time, cashed the check for $4,689.00 which was clearly marked as payment in full for legal fees and costs. Appellee did not note any reservation of right on the checks or indicate that the checks were accepted only in partial payment of the accord. We find that under circumstances of this case, cashing the checks had the effect of acknowledgment by appellee that Bert Rudick had fully performed pursuant to the terms of the accord. The cashing of the checks resulted, therefore, in satisfaction of the accord. Because there was an accord and satisfaction, appellant is precluded from suing either on the original claim or on the accord. See, e. g., Yelen v. Cindy’s Inc., 386 So.2d 1234 (Fla. 3d DCA 1980), pet. for rev. dismissed, 394 So.2d 1154 (Fla.1980) (circumstances and conditions under which appellant received and cashed check established compromise in settlement); Hannah v. James A. Ryder, Corp., supra at 510 (noting common law rule with respect to cashing check purporting to full payment); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978), cert. dismissed, 365 So.2d 714 (Fla.1978) (check cashed in full and final payment for all goods, services and claims was accord and satisfaction). Cf. McGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976) (upon cashing defendant’s check, plaintiff who failed to perform condition of settlement agreement estopped from asserting original claim).

Because we find appellant’s defense of accord and satisfaction valid, we also reverse as to the order of contempt.

Reversed.

      . We note that there is no competent evidence in the record that Mrs. Rudick would, in fact, be criminally liable if she executed the tax forms.


text:
    BEACH ENTERPRISES, INC., a Florida Corporation, Appellant, v. LA-GAR, INC., a Florida Corporation, Appellee.
    Nos. 80-185, 80-1271.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 15, 1981.
    David F. Holmes of Law Offices of Alan Jay Braverman, P. A., Fort Lauderdale, for appellant Beach Enterprises, Inc.
    Robert M. Sturrup of Sturrup & Della-Donna, P. A., Fort Lauderdale, for appellant, Sanken, Inc.
    Martin G. Brooks of Martin G. Brooks, P. A., Hollywood, for appellee.
   PER CURIAM.

The judgment dated October 15, 1979 (Case No. 80—185) and the order dated June 16, 1980 (Case No. 80-1271) are severally affirmed. Appellant Sanken, Inc., a corporation, which filed a “joinder in appeal” in Case No. 80-1271, was not a party to this action and its rights, if any, have not been adjudicated by the judgment of October 15, 1979, or the order of June 16, 1980, which are, respectively, the subject of these two appeals.

AFFIRMED.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Leonard Gregory JOHNSON, Appellee.
    No. 80-754.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 14, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Stephen R. Keroff of Keller & Keroff, P. A., West Palm Beach, for appellee.
   LETTS, Chief Judge.

Involved here is the search of an unoccupied aircraft which first landed at the airport at 2:30 a. m. and then taxied to a private flight service area where it was parked, partially blocking ramp access. Five men exited the plane and shortly thereafter left in a taxi cab. An employee of the private flight service saw smoke coming from the landing gear and because of the plane’s position and because of the risk of fire, the employee called two deputy sheriffs assigned to airport security who, upon arrival, saw said employee using a fire extinguisher on the smoking gear from which an electrical type burning smell was emanating. In addition they noticed that one of the interior lights of the plane was on and a decision was made to enter the aircraft for the sole purpose of making sure that the master electrical switches were off, to obviate fire or explosion. The first deputy, upon opening the door to the unlocked cockpit, observed in plain view numerous bales from which came a strong odor of marijuana. In fact the plane was loaded with 12,000 pounds of cannabis and 36,000 quaaludes. The trial judge granted a motion to suppress the search. We reverse.

Without extended legal discussion and citations, it is obvious that the deputy could have immediately seized the plain-view contraband. Indeed the trial judge, in his order granting the motion to suppress, agreed citing Castle v. State, 305 So.2d 794 (Fla. 4th DC A 1974). However, the trial judge was of the opinion that the deputy in fact did not immediately seize the contraband, but instead participated in a departmental decision to set up a surveillance of the plane hoping to catch any of the five suspects who might return. Obviously mechanism could have been set in motion during the delay to obtain a warrant, but this was not attempted.

As it turned out, this surveillance was to no avail and since none of the suspects returned, the police later conducted a war-rantless detailed search of the plane. By the trial judge’s view of it:

“they could have readily obtained a search warrant based on the probable cause given them by [the first deputy on the scene], but consciously chose not to do so. They had plenty of time to obtain a warrant — the plane would not depart due to the surveillance. As it was they waited six and one-half hours before they conducted the search. They chose the time to make the search — they could have waited even longer. As the hours ticked away, the defendants’ constitutional right against a warrantless search and seizure became viable and inviolate.”

To support this conclusion the trial judge relied on Hornblower v. State, 351 So.2d 716 (Fla.1977). However, while Hornblower certainly confirms the general rule, that if time to get a warrant exists, the enforcement agency must use that time to obtain one, Hornblower also notes that an exception to that rule is “plain-view situations which remove the need for a warrant.. . . ”

Applying the above quoted language from Hornblower to the present situation, it appears to us that this was a plain-view situation which did remove the need for a warrant. Certainly, as the trial judge himself conceded in the order, there was nothing wrong, under the circumstances, with the deputy climbing up and entering into the plane. Upon doing so he plain-viewed, and plain-smelled bales of marijuana, and this being so it would appear to us that the requirement of a warrant was obviated no matter how long they kept the plane under surveillance. In other words, recognizing the initial plain-view exception, the mere passage of time, during which the police surrounded the scene and continued surveillance in plain-view of the contraband hoping to catch the suspects, did not in and of itself destroy and cancel out the exception.

The testimony is that as soon as the two deputies smelled and saw the bales, the crime scene detective arrived followed by three or four others all of whom set up around the airplane and waited in ambush to see if anybody returned. In this respect one of the officers was asked the following question at the hearing:

Q “You wouldn’t let them take the airplane away, would you?”
A “No Sir.”

It is perfectly obvious that from the time the officers arrived and surrounded the contraband they had in effect seized it and were not about to let it be taken away. The only thing they failed to do was cata-logue it and physically remove it. They did not leave the scene with the thought of returning later to re-inspect the plane and its contents. They actively and continuously surrounded the contraband and lay in wait hoping that the suspects would return so that they could nab them as well as the contraband. Such delay in the actual physical inventory and transportation of the contraband does not appear to bely a seizure and certainly is not sufficient to negate the plain-view exception which existed in this situation. To this end we believe Castle v. State, supra, supports our view. To be sure, in Castle, as the trial judge noted here, there was the additional factor that the suspects had abandoned the boat before it was searched, whereas abandonment of the instant plane could not be presumed. However the holding of Castle was to the effect that the mere passage of time did not invalidate the warrantless search because the fire chief remained continuously on the scene for two hours. We agree.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE HEREWITH.

DOWNEY and BERANEK, JJ., concur.

      . We note and find important, the factual distinction in Hornblower where the police left the scene and later returned.


text:
    STATE of Florida, Appellant, v. Timothy William ARDAGNO, Anthony Ragno and Mark Steven Trina, a/k/a Mark Steven Traina, Appellees.
    No. 80-1491.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 14, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    D. Robert Silber, Fort Lauderdale, for appellees Ardagno and Trina.
    Charles L. Jaffee, Fort Lauderdale, for appellee Ragno.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981) and remanded for further proceedings.

REVERSED AND REMANDED.

MOORE, HERSEY and HURLEY, JJ., concur.


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

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF WISCONSIN, etc., Appellant, v. DADE FEDERAL SAVINGS & LOAN ASSOCIATION, etc., Appellee.
    No. 80-968.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.

      Ted R. Brown of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Fred M. Peed of Peed & King, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from entry of summary final judgment on two counts of a complaint which was based on appellee’s failure to collect taxes pursuant to a sales and servicing agreement between the parties dated December 15, 1972.

Orlando Federal Savings and Loan sold a motel construction note and mortgage to appellant. Orlando Federal and appellant entered into the sales and servicing agreement whereby Orlando Federal agreed to service the loan for appellant. Appellee Dade Federal Savings and Loan acquired, through merger, Orlando Federal and assumed its obligations. Under the terms of the servicing agreement, it was represented to appellant that “the terms of the mortgage have in no way been changed” and that “the premiums. . on the policies of fire and hazard insurance. . . plus taxes. . . next due on the mortgaged property...” would be collected monthly and escrowed by ap-pellee.

In November of 1972, following completion of the motel and prior to the sale of the loan to appellant, the senior vice-president for mortgage loans with Orlando Federal, at the request of the mortgagors, agreed not to require escrow of additional monies for 1973 real estate taxes. When the 1973 tax bill which amounted to $32,550.00 was received, appellee discovered that insufficient funds existed in the escrow account to pay the bill. In January, 1974, appellee attempted to collect the 1973 taxes from the mortgagors but was unsuccessful.

In February, 1974, the mortgagors were delinquent in their payments and appellant requested information on the loan. Appel-lee notified appellant by letter that:

Through a mutual agreement the lower escrow was established with a commitment from the owners to make any additional payment in April, 1974.

On February 14, 1978, appellant filed suit for breach of the servicing agreement because of appellee’s failure to collect the 1973 taxes. The complaint was amended on April 17, 1979, by adding counts for breach of warranty and fraud.

On motion for summary judgment, the court held that the counts for fraud and breach of warranty were barred by the statute of limitations.

The first question is whether the four-year statute of limitation for fraud expired prior to appellant’s filing of the action for fraud.

In eases of fraud, the statute of limitations ordinarily begins to run with the discovery of the fraud. Tullo v. Horner, 296 So.2d 502 (Fla. 3d DCA 1974). Section 95.-11(5)(d), Florida Statutes (1973), stated:

An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud....

“Discovery. . .of the facts” as used in this section is defined by an objective, not subjective standard and means knowledge of facts which would have been discovered in the exercise of due diligence. Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969). See also Codding v. Phillips, 296 So.2d 554 (Fla. 3d DCA 1974). As stated in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), under Florida law, a party is charged with knowledge of facts which would have been discovered in the exercise of due diligence for purposes of determining when a cause of action for fraud accrues. The court in Hudak went on to explain, however, that while the law of fraud does not endorse a “hear no evil, see no evil approach,” neither does it require that an aggrieved party have proceeded from the outset as though he were dealing with thieves. 499 F.2d at 1002.

Appellant first alleged a count for fraud in its amended complaint filed on April 17, 1979. The trial court found that appellant, by the exercise of due diligence, should have discovered that the agreement to waive the 1973 tax escrow predated the sale of the mortgage and that the four-year statute of limitations barred suit on this claim in 1979.

Appellant suggests two bases mandating reversal of the trial court. First, it argues that the servicing agreement made appellee an agent of appellant and created a fiduciary relationship, imposing a duty on appel-lee to disclose.

Appellee was clearly appellant’s agent pursuant to the agreement and as such had the duty to make full disclosure to appellant of all material facts relevant to the agency and this duty did not terminate when the employment ended. See Connelly v. Special Road and Bridge District, 99 Fla. 456, 126 So. 794 (1930); Hershey v. Keyes Co., 209 So.2d 240 (Fla. 3d DCA 1968). Under this principal, when appellant’s vice-president wrote to Orlando Federal’s vice-president on April 3, 1974, requesting complete information on the loan, Orlando Federal had the duty to make full disclosure, including explication regarding the escrow waiver.

Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), which supports such a conclusion, also discussed the theory of fraudulent concealment. Fraudulent concealment, the court declared, will toll the statute of limitations where plaintiff shows: (1) successful concealment of the cause of action, and (2) the use of fraudulent means to achieve that concealment. 333 So.2d at 37.

Nardone was a medical malpractice action wherein the court explained that:

[A]lthough generally the fraud must be of such a nature as to constitute active concealment to prevent inquiry or elude investigation or to mislead a person who could claim a cause of action, we do recognize the fiduciary, confidential relationship of physician-patient, imposing on the physician a duty to disclose; but, this is a duty to disclose known facts, and not conjecture and speculation as to possibilities .... Where an adverse condition is known to the doctor or readily available to him through efficient diagnosis, he was a duty to disclose and his failure to do so amounts to a fraudulent withholding of the facts, sufficient to toll the running of the statute. (Emphasis added.)

333 So.2d at 39.

Nardone discussed the “confidential, fiduciary relationship” of a physician and patient. Here, a fiduciary relationship existed between appellant, as principal, and appel-lee, as agent. Appellee was aware of the adverse fact (that the escrow waiver was agreed to prior to December 15, 1972) but failed to disclose this when appellant wrote on April 3, 1974, requesting complete information on the loan. Under Nardone this could constitute a fraudulent withholding of the facts.

Appellant also deposed Orlando Federal’s vice-president on April 27, 1976, and inquired as to the date of the waiver agreement. A complete answer would have placed appellant in a position to timely assert its claim but such was not forthcoming. This inquiry would indicate due diligence on the part of appellant and the incomplete answer could constitute fraudulent concealment which tolled the statute of limitations. See 333 So.2d at 37.

Numerous cases indicate that the question whether one by exercise of reasonable diligence should have known he had a cause of action against a defendant is one of fact which should be left to the jury. See, e. g., Rosen v. Sparber, 369 So.2d 960 (Fla. 3d DCA 1979); Walker v. Dunne, 368 So.2d 640 (Fla. 2d DCA 1979); Green v. Bartel, 365 So.2d 785 (Fla. 3d DCA 1978); Schetter v. Jordon, 294 So.2d 130 (Fla. 4th DCA 1974). In Green, the court stated:

Whether the plaintiff discovered, or by due diligence should have discovered, the existence of the cause of action at some time more than two years prior to the date of the filing of her complaint was a question of fact [citations omitted] and it has been held that genuine issues relating to such questions of fact are to be determined by the trier of facts, and are not to be resolved on summary judgment.

365 So.2d at 788.

Disputed questions of material fact exist which should be determined by the jury, such as whether there was a fraudulent concealment and whether appellant exercised due diligence.

The second question is whether the five-year statute of limitations expired prior to appellant’s filing of the action for breach of warranty.

The servicing agreement provided:

Seller-Servicer represents and warrants as to each such mortgage offered for sale under this Agreement that: the terms of the mortgage have in no way been changed or modified.

The statute of limitations for causes of action based on breach of an express warranty begins to run when plaintiff discovers or should have discovered, the breach of the express warranty. See, e. g., Kelly Tractor Co. v. Gurgiolo, 369 So.2d 992 (Fla. 3d DCA 1979); Rowell v. All, 352 So.2d 905 (Fla. 1st DCA 1977).

This indicates that the analysis previously discussed applies and appellee’s failure to disclose the date of the waiver agreement, in response to appellant’s request on April 3, 1974, for complete information on the loan and the vice-president of Orlando Federal’s failure to inform appellant in his 1976 deposition when specifically asked could have the effect of tolling the statute of limitations on this count until 1979, when the date was ultimately discovered.

We REVERSE and REMAND for trial.

ORFINGER and COBB, JJ., concur.

      . The letter did not indicate that the “mutual agreement” occurred before the sale of the loan to appellant on December 15, 1972.

      . Section 95.11, Florida Statutes (1975), provides:
      Actions other than for recovery of real property shall be commenced as follows:
      (3) Within four years—
      (j) A legal or equitable action founded on fraud.

      . Prior to January 1, 1975, section 95.11(5)(d) provided a three-year statute of limitations for fraud. It is not disputed by either party that the four-year period is the applicable statute of limitations.

      . Appellee contends that any duty to disclose arising out of a fiduciary relationship ceased as of January, 1974 when the servicing agreement was terminated, but Connelly refutes this.

      . Section 95.11(2)(b), Florida Statutes (1979), provides a five-year statute of limitations for actions based on written contracts.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Johnny RAULERSON, Eston Buchanon, and Calvin Carson Stracke, Appellees.
    Nos. 81-47 to 81-49.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellees.
   SHARP, Judge.

The State appeals from the trial court’s granting three defendants’ (Buchanon, Rau-lerson and Stracke) motions to dismiss the criminal charges against them because it ruled the material undisputed facts failed to establish a prima facie case of guilt against them. Fla.R.Crim.P. 3.190(c)(4). The criminal charges related to conspiracy and solicitation to smuggle marijuana and trafficking in cannabis. The State contended it should be allowed to prove the identity of the smuggled material by circumstantial evidence, and by the testimony of a State’s witness who could identify the material by its distinctive odor, although he had never before been in the presence of marijuana.

The stipulated facts showed that the defendants were involved in some kind of smuggling operation. At approximately 11:30 p. m., a United States customs pilot began following a particular Piper Aztec from the Bimini area to Palm Beach, and lost radar contact with it near Fellsmere, Florida. The pilot saw in an open field on the ground two trucks, one of which was blinking its lights. He radioed this information to the Indian River County Sheriff’s Department. Two sheriff’s deputies saw two trucks departing from the field as reported and followed one of them, which proved to be the empty decoy. Later the Piper was found abandoned in the field. It had no seats, and was fitted with an illegal additional nose tank.

Hearndon, the State’s witness, was approached by Stracke to assist in some kind of clandestine aircraft landing operation. He was paid $500 in advance. His job was to look out for automobiles while the plane was being unloaded. On the night in question, he went to the field and there observed the presence of Buchanon, Rauler-son, Stracke, and two other men. He helped unload from the plane approximately eighteen (18) white laundry bags containing material with a strong unusual odor. As they were unloading the plane one of the men remarked, “What are we going to do with 1000 pounds of marijuana?” Hearndon helped Stracke hide the bags in a turkey feeder on a farm near Fellsmere. The next day they were moved to a horse trailer and the trailer was taken away. A few days later Hearndon received $4,100 in cash from Stracke.

No chemical residue of marijuana was found in the plane or on the trucks, and obviously the eighteen (18) white laundry bags were not available to the State to prove its case. The State argued it could make a prima facie case against the defendants by showing all the circumstances of the aircraft landing and unloading, including the remark about marijuana. Also the State proposed it could show the contents of the laundry bags had the distinctive odor of marijuana. Although Hearndon never before had any contact with marijuana, he could identify its odor again, by selecting it from an assembled group of other materials with which he likewise was unfamiliar.

A “(c)(4)” motion challenges whether or not the proofs relied upon by the State establish a prima facie case of guilt against the defendant. All inferences that arise from the undisputed facts must be taken in the light most favorable to the State’s case. State v. Upton, 392 So.2d 1013 (Fla.5th DCA 1981). The issue here is whether or not the undisputed facts prima facie identified the contents of the white laundry bags as marijuana.

We agree with our sister court that it is not necessary for the State to prove the identity of contraband as marijuana by chemical or scientific proof. In Turner v. State, 388 So.2d 254, 257 (Fla. 1st DCA 1980), the court stated:

Instead, we approve the opinion in Moore v. United States, 374 A.2d 299, 302 (D.C.App.1977), stating that, in addition to the scientific tests, other facts tending to show the identity of the substance, such as its appearance and smell and circumstances under which it was seized, are probative and can meet the State’s burden of proof.

In Turner, the witnesses who identified the substance as marijuana had experience with it, and were familiar with its odor and appearance.

In this case, Hearndon had no previous experience or contact with marijuana. However, it is well known that marijuana, even when it is not being burned, has a distinctive odor. Further, some individuals have a keen sense of smell, and they can identify places or objects by recalled odors. For purpose of this “(c)(4)” motion, we must assume Hearndon has this kind of ability, and that he will select the scent of marijuana as that which emanated from the laundry bags he handled.

Although Hearndon’s identification of the scent of marijuana alone might be insufficient to establish a prima facie case against the defendants, the other circumstances strongly suggest marijuana was aboard the aircraft. All of the characteristic hallmarks of a smuggling operation were present. No material other than marijuana is covertly transported into Florida in such a fashion. The courts do not have to shut their eyes and ears to the realities of the manner in which Florida is being inundated by this illegal commerce in marijuana. Further, a clear inference from the remark of one of the persons unloading the plane identified the cargo as marijuana. That alone should have sufficed to withstand a “(c)(4)” motion. State v. Upton, 392 So.2d 1013 (Fla.5th DCA 1981).

REVERSED AND REMANDED.

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

      . The notice of appeal also included an order suppressing evidence, however, the State apparently abandoned that issue and we do not address it in this opinion.

      . The three cases were consolidated on appeal because they involved the same record and issues.

      . E. Bloomquist, Marijuana: The Second Trip 8 (rev.ed.1971).

      . See Washington Post, March 13, 1981, § A, at 2, Col. 1.


text:
    Larry Louis LOMBARDI, Appellant, v. STATE of Florida, Appellee.
    No. AB-393.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.
    Larry Louis Lombardi, in pro. per.
    No Appearance for appellee.
   PER CURIAM.

We have treated appellant’s notice of appeal as a Petition for Writ of Certiorari. The petition is denied.

SHAW and THOMPSON, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Ken KILPATRICK and Cherie Kilpatrick, Appellants, v. STATE of Florida, Appellee.
    No. AC-176.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.

      Philip J. Padovano, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This is an appeal from the trial court’s order withholding adjudication of appellants’ guilt and placing them on probation after their pleas of nolo contendere to possession of narcotic paraphernalia and possession of a controlled substance. The pleas preserved the appellants’ right to appeal the trial court’s denial of their motion to suppress, which the parties stipulated was dispositive of the case. We reverse.

At the motion hearing, police officer Ron Steverson testified that on August 20, 1980, he received a confidential tip that appellants had marijuana plants growing at their residence. He stated that because the tip was insufficient to support a search warrant, he proceeded to the farm of appellant Ken Kilpatrick’s father Dillon Kilpatrick, on which appellants lived, to talk to Dillon, whom he knew, about the information he had received. He stated that he left the public road and entered the farm on a private road looking for Dillon’s house. He passed a brick home and a trailer (the trailer was Dillon’s home) without stopping to ask for directions, thinking, he explained, that Dillon lived farther back on the property. He proceeded on down the private road for about one-half mile when he came to another trailer (appellants’) and saw marijuana plants growing outside the trailer. He stated that he then went back down the road to radio another policeman, who later came to the scene, and that Dillon drove up to appellants’ trailer about one-half hour later. Ken Kilpatrick arrived subsequently, and after confronting him with his discovery of the marijuana and arresting him, Steverson obtained Ken’s consent to search the trailer wherein he found a pound of marijuana and drug paraphernalia.

Appellants contend that the war-rantless seizure of marijuana at their trailer was not justified under the “plain view” exception to the search warrant requirement since Steverson did not make his observation from a place where he had a lawful right to be. They argue that they had a reasonable expectation of privacy at their trailer, one-half mile inside of private property, and that they were entitled to be free from unreasonable government intrusion. We agree. Steverson, without a warrant, entered this private property where he had been told marijuana was growing to see Dillon Kilpatrick in furtherance of investigation of the tip he had received. Not knowing where Dillon’s residence was located, he passed a brick house and a trailer where Dillon lived without making any inquiry but proceeded on back into the private property for about a half mile until he came to the second trailer where the marijuana was growing.

The circumstances of this case are analogous to those in State v. Morsman, 394 So.2d 408 (Fla. 1981), in which the Supreme Court held that citizens have a reasonable expectation of privacy in their backyards. There, an officer, having received information from a neighbor that marijuana was growing in the defendant’s backyard, knocked on the front door and received no answer. He then proceeded to the backyard where he saw the plants in “plain view.” The court rejected the plain view argument since the plants were not visible from the street or from a neighbor’s yard. Steverson’s act of driving one-half mile down a private road through private property after passing two dwellings along the way is equivalent to an officer going directly to the backyard of a house without even knocking first at the first door to make his inquiry. Steverson, under the circumstances when he arrived at the trailer, was at a place where Ken Kilpatrick had a reasonable expectation of privacy, and, therefore, his observation of the marijuana plants was the result of an invalid search and the fruits thereof should have been suppressed.

Appellee’s contention that Ken had no standing to question the validity of the search because he did not own the farm is without merit. The trailer where the marijuana was found was his residence. The cases relied upon by appellee on the standing question are cases which ruled that one does not have standing to question a search of another’s residence or another’s personal property. Appellant had standing to question the validity of a search of his own residence and the curtilage thereof. Compare Mixon v. State, 54 So.2d 190 (Fla. 1951).

Appellants also contend that the consent to search their trailer was not freely and voluntarily given due to the unconstitutional taint resulting from the illegal seizure of the growing plants outside the trailer. We agree. Steverson obtained Ken’s consent as a direct result of the illegal arrest which was predicated upon the fruits of the unconstitutional search. Therefore, under the facts of this case, the consent did not relieve the search of its unconstitutional taint. Bailey v. State, 319 So.2d 22 (Fla. 1975).

REVERSED.

ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.