author: GLICKSTEIN, Judge.

text:
    Erin Ruth ALBERTSON, etc., et al., Appellants, v. RICHARDSON-MERRELL, INC., etc., Appellee. Chad BURTCHAELL, etc., et al., Appellants, v. RICHARDSON-MERRELL, INC., etc., Appellee.
    Nos. 82-1951, 82-1952.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Rehearing Denied Dec. 23, 1983.

      Arthur W. Tifford, Miami, and Cohen & Kokus, Miami, for appellants.
    Leon H. Handley and Francis E. Pierce, III, Orlando, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order which dismissed an amended complaint with prejudice. We reverse and remand.

We are concerned at this juncture with only one defendant, John Shipley, who is the sole beneficiary of the trial court’s order; however, in order to provide a true picture projected within the four corners of the pleading, we quote therefrom rather liberally. '

2. The Defendant, RICHARDSON-MERRELL, at its division known as Mer-rell National Laboratories, at all times material to this Amended Complaint, manufactured the pharmaceutical drug known as “BENDECTIN”, outside of the State of Florida and promoted BENDEC-TIN and other drugs both outside and inside the State of Florida by a variety of means. The Defendant, MERRELL, also conducted and engaged in business within the State of Florida by maintaining and employing sales representatives, selling and delivering to pharmacies, drug stores, retail stores or other retail establishments located within the State of Florida its products, including BENDECTIN. It specifically conducted and engaged in business in such manner in Florida.
3. The Plaintiff, ERIN RUTH AL-BERTSON, (hereinafter referred to as the “Minor-Plaintiff”), is an infant and a citizen and resident of West Palm Beach, Florida^
6. Defendant, JOHN SHIPLEY, is an employee of MERRELL who, at all times relevant hereto, promoted its drug, BEN-DECTIN, in Palm Beach County, Florida, including specifically the area or part thereof known as West Palm Beach, Florida, by acting as a representative/employee of MERRELL commonly known as a “detailman”. In his capacity as a MER-RELL “detailman”, the Defendant, JOHN SHIPLEY, falsely made misrepresentations of a material nature to the physician(s) directly treating the Plaintiff, ROBIN ALBERTSON, after she conceived the Minor-Plaintiff, ERIN RUTH ALBERTSON, and, indirectly, the latter; alternatively the Defendant, JOHN SHIPLEY, failed to make material representations to the said physician(s) all as is more fully alleged hereinafter in paragraphs 9 and 10.
7. Defendant, Merrell, began marketing the drug BENDECTIN sometime in 1957. The drug was and is marketed exclusively for the treatment of nausea and vomiting in pregnancy. Nausea and vomiting associated with pregnancy is usually self-limiting and is usually relieved by drinking very hot or cold liquids and Coca Cola and eating crackers.
8. Before marketing BENDECTIN in 1957, MERRELL conducted no tests to determine if the drug caused birth defects in test animals. It conducted the first animal tests with BENDECTIN in 1962 in Dutch Belted white rabbits. The tests were performed by Robert Staples, one of MERRELL’s employees, who observed test results which suggested that BENDECTIN caused a dose-related increase in the number of deformities observed in the off-spring of the test animals.
9. MERRELL concealed Staples’ findings from the medical community and the Federal Food and Drug Administration (hereinafter referred to as the “FDA”). Instead, it submitted a rewritten version of the Staples study which omitted Staples’ conclusions and misstated the nature of the deformities he observed. MER-RELL also caused the rewritten Staples study to be published in the medical literature in a calculated attempt to promote an unfounded belief in BENDECTIN’S safety in the medical community while minimizing the true risks associated with the use of the drug.
10. Defendant, MERRELL, engaged in a pattern and practice of promoting BENDECTIN as safe for ingestion by women in early pregnancy while concealing the fact that spontaneous adverse reaction reports in its files contained a remarkable and disproportionately high percentage of limb defects when compared to other drugs taken by pregnant women. In furtherance of MERRELL’s scheme of concealment it misled inquiring physicians by falsely stating or implying that there had been no prior reports of birth defects associated with the use of BENDECTIN. The Defendant, JOHN SHIPLEY, promoted the drug BENDEC-TIN to the physician(s) treating the Plaintiffs, as aforesaid, by falsely misrepresenting material facts concerning the safety of BENDECTIN by stating that BENDECTIN was “absolutely safe” or words to that effect, well knowing that the safety vel non of BENDECTIN was not as he represented or, in the alternative, while he did not know the truth vel non of the safety of BENDECTIN. In addition the Defendant, JOHN SHIP-LEY, failed or refused, as the case may be, to represent to the physician(s) treating the Plaintiffs, as aforesaid, the true status as to the absence of the safety of BENDECTIN on developing embryos, including the Minor-Plaintiff, ERIN RUTH ALBERTSON.
11. On June 6,1977, Plaintiff, ROBIN ALBERTSON, consulted her physician who had been fraudulently misled by MERRELL and the Defendant, JOHN SHIPLEY, into believing that BENDEC-TIN was safe for use in early pregnancy. The physician prescribed BENDECTIN for ROBIN ALBERTSON for the treatment of nausea in the early stages of her pregnancy.
12. Plaintiff, ROBIN ALBERTSON, ingested BENDECTIN throughout the most of the first trimester of her pregnancy.
13. On January 29, 1978, Plaintiff, ROBIN. ALBERTSON, gave birth to Plaintiff, ERIN RUTH ALBERTSON, who had severe birth defects.
15. Defendant, MERRELL, developed, marketed and promoted BENDECTIN in the United States and the State of Florida exclusively for the treatment of “morning sickness” in pregnancy.
16. MERRELL, promoted and marketed BENDECTIN, materially and falsely misrepresenting that it was safe for use by women in early pregnancy and marketed BENDECTIN for use by such women although it knew, or in the exercise of reasonable diligence should have known, that BENDECTIN was terato-genic, that it caused birth defects, or, in the alternative, MERRELL had insufficient knowledge to represent to the medical community that BENDECTIN was safe for use by pregnant women during the first trimester of pregnancy. The Defendant, JOHN SHIPLEY, acted in concert with and aided and abetted MER-RELL in the promotion of BENDECTIN by affirmatively falsely misrepresenting in material part the safety of BENDEC-TIN or failing to represent its true vel non status as unsafe for early developing embryos, as is more fully alléged in paragraphs 9 and 10.
17. By marketing BENDECTIN solely for the indication of treating nausea and vomiting in pregnant women, MERRELL knew, or in the exercise of reasonable diligence should have known, that BEN-DECTIN would be routinely prescribed during the first trimester of pregnancy, a period when an embryo can be severly [sic] deformed by exposure to a terato-genic chemical, that is a chemical capable of causing birth defects.
18. In order to foster and perpetuate the belief that BENDECTIN was safe for use in early pregnancy and while touting its purported but unfounded safety, MERRELL caused false and misleading articles and advertisements to be printed in the medical literature; lied to or otherwise deceived physicians asking MER-RELL if there had been prior reports of birth defects associated with ingestion of BENDECTIN and otherwise sought to minimize any risks associated with BEN-DECTIN’s consumption.
19. Defendants, MERRELL and JOHN SHIPLEY, maliciously made misrepresentations and concealed material results concerning the animal and human experience of BENDECTIN from the medical community and the Plaintiffs’ treating physician.
20. Plaintiff, ROBIN ALBERTSON, or her physician, or other medical personnel acting as her agents, relied on MER-RELL’s and Defendant, JOHN SHIP-LEY,⅛ [sic] misrepresentations and the absence of information in the medical literature, which had been concealed by MERRELL that BENDECTIN caused birth defects.
21. The foregoing reliance was justified.
22. As a direct and proximate result of the culpable concealments and misrepresentations of MERRELL and Defendant, JOHN SHIPLEY, Plaintiff, ROBIN ALBERTSON ingested BENDECTIN which caused her child to be deformed.

While medical science toils in overcoming the tragedies visited by disease, all of society faces each day the interfacial illnesses of complacency and deception. We intend to address both by this opinion. In doing so, we are able to look again to the expressed wisdom of one of America’s greatest jurists, Cardozo, who wrote while still sitting on New York’s highest court:

A representation, even though knowingly false, does not constitute ground for an action of deceit unless made with the intent to be communicated to the persons or class of persons who act upon it to their prejudice. Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 187, 174 N.E. 441, 447 (1931).

This case fits precisely within the circle of protection described by the foregoing principle. A drug manufacturer’s detail man makes representations to a physician caring for a pregnant woman. It is obvious that the embryo must be protected in such circumstance; and it is, quite frankly, hard to consider seriously the arguments of the party against whom the allegations have been made. But for the complacency from which we all suffer, cynical might well be an apt description of the defendant’s legal position in suggesting immunity from judgment, given the assumption of truth to the allegations on motion to dismiss.

We have found no precedent or principle announced by Florida jurists in these factual circumstances which would conflict with our conclusion. We have held:

For fraud to be actionable, the following elements must be made to appear:
(1) a misrepresentation of material fact;
(2) [a] a knowledge of the representor of the misrepresentation, or
[b] representations made by the repre-sentor without knowledge as to either truth or falsity, or
[c] representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof;
(3) an intention that the representor induce another to act on it; and
(4) resulting injury to the party acting in justifiable reliance on the representation.

Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699, 706 (Fla. 4th DCA 1981), petition for review denied, 408 So.2d 1093 (Fla.1981). The foregoing does not require that the ingesting mother be the one with whom the misrepresentor directly communicates. There are examples in this state’s jurisprudence which support us. See Forbes v. Auerbach, 56 So.2d 895 (Fla.1952), affirmed, 67 So.2d 685 (Fla.1953), involving misrepresentation by one person of his financial condition to another, with the result that still another extend credit to the first person, and Strickland v. Muir, 198 So.2d 49 (Fla. 4th DCA 1967), in which there was misrepresentation of the first person’s financial condition by a second person at the instance of the first person, with a resultant reliance by a third person. While these examples are financial cases and one American president said that the business of this country is business, Ebenezer Scrooge ultimately heeded his late partner’s admonition that mankind should be his business.

It is eminently clear that Merrell’s and its detail man’s purpose in allegedly misinforming physicians about the safety of taking Bendectin was not to persuade physicians (unless they had morning sickness) to buy and ingest that preparation. Obviously they not only expected but desired these physicians to prescribe the drug for their pregnant patients to ingest. Any effect could hardly be said to stop with the mothers in light of the dependency of their embryos. While the universe of potential detrimental reliers may have been indefinite in number and the individuals making it up were not preidentifiable, nevertheless, the characteristics of the class were crystal clear. Appellant allegedly knew those characteristics and inferentially knew not only that such persons would rely but also that their dependent embryos would be affected as a result of such reliance.

One of the oldest cases holding there was a cause of action for fraud where a patient suffered harm because he used a prescription drug whose propensities the manufacturer knew but concealed from the medical profession is Wechsler v. Hoffman-La Roche, Inc., 198 Misc. 540, 99 N.Y.S.2d 588 (Sup.Ct.1950), affirmed as modified, 108 N.Y.S.2d 990 (1951). There, the patient died of the effects of the drug. The supreme court of Bronx County cited Ultra-mares as authority for its ruling that “[rjeliance upon fraudulent representations by persons who are not the direct addresses thereof but who may be intended or expected to learn of and act upon such representations will found an action in fraud and deceit.” Id. at 541, 99 N.Y.S.2d at 590. To defendant’s claimthat it would not be liable to the decedent because its representations were made to physicians and not to the decedent or persons of his class, the court replied that “one who misrepresents for his gain and benefit, at the expense of human life, should be answerable in fraud for all the reasonable and foreseeable consequences of his deception.” Id. As to a more direct nexus between the fraudulent representation and the victim, the court declared that the physician who prescribed the drug was acting on his patient’s behalf; therefore a fraud upon the physician was a fraud upon the patient. Id. The Wechsler court held that plaintiff also had a cause of action on a negligence theory.

A fraud theory also was asserted in Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex.1974). There the detail man had assured the plaintiff’s physician that the subject drug was not addictive when in fact the company did not know whether the drug was addictive or not. The Texas court held that this constituted a misrepresentation by the seller sufficient to subject the company to liability under Restatement (Second) of Torts § 402 B. See also Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex.1978).

Accordingly, we reverse and remand so that the plaintiffs can undertake their burden of proving the serious allegations made against the defendant.

HURLEY and WALDEN, JJ., concur.

      . This quotation is from the pleading in Albert-son v. Richardson-Merrell, Inc., Case No. 82-1951. Except for plaintiffs’ names, the amended complaint in Burtchaell v. Richardson-Merrell, Inc., Case No. 82-1952, is identical.

      . That section provides:
      402 B. Misrepresentation by Seller of Chattels to Consumer One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though
      (a) it is not made fraudulently or negligently,
      and
      (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.
      Restatement (Second) of Torts § 402 B (1965).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Iva WUMMER, Appellant, v. John G. LOWARY, an infant, by William Henry LOWARY, next friend and guardian, Appellee.
    No. 83-125.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Rehearing Denied Dec. 22, 1983.
    Jose G. Rodriguez, West Palm Beach, for appellant.
    Cynthia S. Greenhouse of Cohen, Scherer & Cohn, P.A., Lake Worth, for appellee.
   PER CURIAM.

Appeal was taken from the trial court’s order granting Lowary’s and denying Wummer’s summary judgment motion. We reverse.

Wummer refinanced one of her employee’s repossessed Camaro. She deducted the monthly payments from the employee’s paycheck and the employee maintained control over the car. Lowary was injured while a passenger in the Camaro. Suit was filed against Wummer as the owner of the vehicle.

Beneficial ownership carries with it liability for damages which arise from an automobile’s negligent operation. Harrell v. Sellars, 424 So.2d 881 (Fla. 1st DCA 1983); Hicks v. Land, 117 So.2d 11 (Fla. 1st DCA 1960); and, Cox Motor Co. v. Faber, 113 So.2d 771 (Fla. 1st DCA 1959). Wum-mer’s employee had sole possession of the auto. Wummer saw it for the first time after the accident occurred. She was not the beneficial owner of the Camaro. Accordingly, we reverse the order granting Lowary’s and denying Wummer⅛ motion for summary judgment.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    Kathleen A. FERRERO, Appellant, v. Frank A. FERRERO, Appellee.
    No. 82-2177.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Gersten & Vitale and Mark L. Deutsch, Miami, for appellant.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Finding that reasonable persons could differ as to the propriety of the trial court’s action, it follows that no abuse of discretion has been shown, and the judgment may not be disturbed. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1982). See Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980).

Affirmed.


text:
    Felipe A. RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2393.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the revocation of a probation upon the state showing of a subsequent unrelated conviction entered pursuant to a nolo contendere plea relying upon the reasoning contained in Bradford v. State, 435 So.2d 962 (Fla. 1st DCA 1983); and Maselli v. State, 425 So.2d 176 (Fla. 2nd DCA 1983), recognizing that these opinions are in conflict with Donaldson v. State, 407 So.2d 623 (Fla. 5th DCA 1981) (Cobb, J., dissenting).

Affirmed.


text:
    James Joseph GALLAGHER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2592.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.

      Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Ferguson v. State, 417 So.2d 639 (Fla.1982); Ray v. State, 403 So.2d 956 (Fla.1981); Clark v. State, 363 So.2d 331 (Fla.1978); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); Van Note v. State, 366 So.2d 78 (Fla. 4th DCA 1978); Jones v. State, 355 So.2d 198 (Fla. 3d DCA 1978); Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969).


text:
    Michael Steven NASH, Appellant, v. SUNSTREAM EQUIPMENT COMPANY and Aetna Casualty & Surety Company, Appellees.
    No. 82-2663.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Gerald E. Rosser, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Talquin Electric Cooperative, Inc., v. Amchem Products, Inc., 421 So.2d 1032 (Fla. 1st DCA 1983); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978); Ritter v. Jimenez, 343 So.2d 659 (Fla. 3d DCA 1977); Zerwal v. State Farm Mutual Automobile Insurance Company, 332 So.2d 645 (Fla. 3d DCA 1976); Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th DCA 1974); Somers v. Meyers, 171 So.2d 598 (Fla. 1st DCA 1965).


author: PER CURIAM. JORGENSON, Judge,

text:
    AMERICAN ATLANTIC LINES, Appellant, v. ROS FORWARDING, INC., Appellee.
    No. 83-42.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.

      Horton, Perse & Ginsberg and Edward Perse, Miami, for appellant.
    Gelb & Spatz and Carl Spatz, Miami, for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. The statute of frauds prohibits actions based on unwritten promises to pay the debts of third parties in the absence of any independent consideration running to the guarantor. § 725.01, Fla.Stat. (1981); Baya v. Price, 222 So.2d 258 (Fla. 3d DCA 1969); cf. Jim & Slim’s Tool Supply, Inc. v. Metro Communities Corp., 328 So.2d 213, 215 (Fla. 2d DCA 1976).

JORGENSON, Judge,

dissenting.

Because this is not a case where the nature of the oral contract can be determined with certainty, see Titan Agencies, Inc. v. Kornreich & Sons, 355 So.2d 457 (Fla. 3d DCA 1978), I respectfully dissent.

The plaintiff, American Atlantic Lines, an ocean cargo carrier, appeals a final summary judgment in favor of the defendant, Ros Forwarding, Inc., a freight forwarder, in a suit to enforce an oral contract for the cost of shipping a third party’s goods.

American alleged that its representative advised Ros that, because the shipper of the goods had no credit arrangement with American, American could not ship certain goods that had already been forwarded to American through Ros and loaded onto American’s vessel. Vandeventer, Ros’s employee, responded that Ros would not be responsible for the shipment and agreed that American should unload the goods. A short time later Vandeventer telephoned American’s representative and told him Ros would guaranty American the shipping charges. Based on this telephone conversation American re-loaded the goods and delivered them to their destination. American’s representative claims Vandeventer was told, and agreed, that American would be looking exclusively to Ros for payment. Vandeventer claims he only agreed to guaranty payment in the event the third party failed to pay American. Ros refused to pay American and asserted that the oral contract for payment was barred by Florida’s Statute of Frauds, § 725.01, Fla.Stat. (1981). The trial court agreed, granting final summary judgment in favor of Ros.

The central issue before the trial court was whether Vandeventer⅛ promise to pay the shipping costs to American was a guaranty and as such was collateral to the existing shipping contract between American and the shipper or whether the promise was “an original undertaking of the promisor himself supported by independent consideration flowing to him,” Jim & Slim’s Tool Supply, Inc. v. Metro Communities Corp., 328 So.2d 213, 215 (Fla. 2d DCA 1976); see Bensam Corp. v. Felton, 63 So.2d 278 (Fla.1953); Moore v. Chapman, 351 So.2d 760 (Fla. 1st DCA 1977); Troup Brothers, Inc. v. State of Florida, 135 So.2d 755 (Fla.2d DCA 1961).

The question of whether an oral promise is direct or collateral is one of fact. Hilkmeyer v. Latin American Air Cargo Expediters, 94 So.2d 821 (Fla.1957); Sanders v. Hodges, 109 Fla. 391, 147 So. 571 (1933); Maresh Sheet Metal Works v. N.R.G. Ltd., 304 N.W.2d 436 (Iowa 1981). Because of the conflicting evidence on this issue, giving rise to different reasonable inferences, it was error to grant summary judgment in Ros’s favor. See Hilkmeyer; Titan; see also Hudson v. Ashley, 411 A.2d 963 (D.C. 1980) (trial court erred in directing verdict on whether oral promise was a promise to pay the debts of another).

Even if the trial court had been correct in determining that the oral promise was a guaranty, because of the “leading object” rule it still would have been error to grant summary judgment in favor of Ros. See 2 A. Corbin, Corbin On Contracts §§ 366 — 95 (1950). The reason for the inclusion of guaranty contracts within the Statute of Frauds is to protect the guarantor who receives no direct benefit from his promise. Such a promisor should be bound only by the exact written terms of his promise. See Davis v. Patrick, 141 U.S. 479, 12 S.Ct. 58, 35 L.Ed. 826 (1891); 3 S. Williston, A Treatise on the Law of Contracts § 452 (1960). Where the promisor makes his promise not for the benefit and accommodation of another but makes it for his own benefit or concern, the “leading object” rule removes a promise of guaranty from within the statute of frauds. See 2 A. Corbin, supra. In Emerson v. Slater, 22 How. 28,16 L.Ed. 360, 365 (1859), the Supreme Court held:

[Wjhenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.

The determination of the intent of the guarantor is one of fact, see Hudson, which would preclude the granting of summary judgment in favor of Ros even if its promise were a guaranty.


author: DANIEL S. PEARSON, Judge.

text:
    E.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-173.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Deborah Beale’s house was burglarized on the night of August 6,1982. Beale testified that entry had been made by removing the jalousie windows of the Florida room and that a television set, silver necklaces, some meat and two dollars in cash had been taken. When Beale discovered the August 6 burglary, she suspected that the appellant may have been the culprit because, at one time before August 6, she had seen him in possession of a gold necklace which had been stolen from her house on an earlier occasion.

In September 1982, the appellant was arrested on an unrelated charge. After validly waiving his Miranda rights, the appellant, having been asked whether he had been involved in any other criminal activity in Dade County, acknowledged that he had committed several burglaries. E.M. later identified Deborah Beale’s house as one of the houses he had burglarized and told the interrogating officer that he had entered Beale’s home through a jalousie window. The officer was unable to say whether the jalousie window about which the appellant spoke was one in the rear, front or side of the Beale home. Notwithstanding that the Beale home had been burglarized at least one time prior to August 6 and that the appellant’s confession of having burglarized the Beale home did not in any way refer to the date of the burglary, the appellant was charged with the August 6 burglary and the related theft and brought to trial on those charges.

The evidence against the appellant consisted solely of the foregoing facts. Predictably, at the conclusion of the case, the appellant moved for a judgment of acquittal contending that the evidence failed to exclude all reasonable hypotheses of his innocence of the August 6 burglary. The trial court denied the motion, found the appellant guilty as charged, and adjudicated him to be delinquent. This appeal ensued. We reverse.

The only proof adduced by the State which even arguably connected E.M. with the burglary in question is E.M.’s confession to the officer that he had at some unstated time burglarized the Beale home. Although such proof is certainly consistent with the State’s theory that the appellant committed the August 6 burglary, it is equally — indeed, perhaps more — consistent with the reasonable hypothesis, completely supported by Beale’s testimony that before August 6 she had seen the appellant in possession of a gold necklace that had been stolen from her home previously, that E.M.’s confession related to this earlier burglary, and that he had burglarized the Bea-le home sometime prior to the August 6 burglary. There is not the slightest detail in E.M.’s confession which is inconsistent with this hypothesis of innocence — he was not asked about nor did he state the date of the burglary of Beale’s home, the items stolen during the burglary, or even the exact point of entry. This being the state of the record before us, the evidence against E.M., including his “confession,” is entirely circumstantial and does not, as it must, McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956), exclude the utterly reasonable hypothesis that E.M. committed a burglary of Beale’s home prior to August 6, a crime other than that for which he was on trial. Where, as here, there is nothing more than circumstances which, at most, raise a suspicion that the accused committed the crime, we are not at liberty to uphold a finding of his guilt. See Horton v. State, 91 So.2d 304 (Fla.1956); Smoak v. State, 87 So.2d 513 (Fla.1956); J.L.J. v. State, 367 So.2d 699 (Fla. 2d DCA 1979).

Accordingly, the adjudication of delinquency is reversed with directions to discharge the appellant.

Reversed with directions.

      . Beale was equally suspicious of another man who had mowed Beale’s lawn and had been to her home at least three times before August 6. She suspected this man, because shortly after the August 6 burglary, she found a pack of Newport cigarettes on the ground directly un-demeath the point of entry, a place that was neither readily accessible to a mere passerby, nor one where lawn mowing would occur. Beale knew that this man smoked Newport cigarettes, and she had never seen E.M. smoke.


author: HUBBART, Judge.

text:
    Wallace WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-803.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Bennett H. Brummer, Public Defender and Michael W. Strickland, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill and Jack B. Ludin, Asst. Attys. Gen., for appellee.
    Before HUBBART and NESBITT and DANIEL S. PEARSON, JJ.
   HUBBART, Judge.

The defendant Wallace Williams appeals his convictions and sentences for aggravated battery and two counts of robbery. He contends that: (1) the sentences imposed in this case were so disproportionate to the crimes committed as to constitute cruel and unusual punishment prohibited by the federal and Florida constitutions, (2) the court erred in overruling a defense objection to a comment by the prosecuting attorney in final argument to the jury, and (3) the defendant was deprived of due process of law based on a communication between the jury and a corrections officer during jury deliberations. We find no merit in these contentions and affirm.

First, the prison sentences imposed in this case for aggravated battery (15 years) and the two counts of armed robbery (120 years each) are within the statutory máximums authorized by Florida law for convictions on the above crimes in this state. Alvarez v. State, 358 So.2d 10 (Fla.1978); §§ 784.045, 812.13(2)(a), Fla.Stat. (1981). In addition, it was permissible for the trial court under Florida statutory law to impose consecutive sentences for these above crimes, § 921.16(1), Fla.Stat. (1981), as well as to retain jurisdiction to review any possible parole release of the defendant for a period of one-half the total prison sentences imposed in this case, i.e., for a period of 127½ years. § 947.16(3), Fla.Stat. (1982). In effect, then, the defendant has been sentenced in this case to prison for his natural life with a possibility of parole release at any time during his lifetime if approved by the parole commission and the trial court. See Alvarez v. State, supra. Given the defendant’s prior criminal record and the viciousness of the crimes of violence and threatened violence committed in this case, we have no trouble in concluding that these sentences were not so disproportionate as to constitute cruel and unusual punishment proscribed by the federal and Florida constitutions. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); also compare Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L;Ed.2d 637 (1983). Indeed, the trial court carefully set forth its reasons for retaining jurisdiction to approve any parole release of the defendant, as required by Section 947.16(3)(a), Florida Statutes (1982), which reasons more than adequately justify the constitutionality of the sentences imposed herein, to wit:

“This Court, pursuant to Florida Statute 947.16 enters the following delineation of facts and findings in order to support or retain jurisdiction for one-half of the entire sentence.
Number one: The Defendant has been convicted of armed robbery with a deadly weapon and armed robbery with a firearm and aggravated battery, all violent crimes against the people of the State of Florida.
Number two: In the past, the Defendant had three prior robbery convictions and a ten-year sentence.
Number three: That the present facts as described by Irvan McLeash in his testimony properly described details of the present crime.
I borrow from the language of Mr. McLeash who states in relevant part that he saw the Defendant enter with a gun in his right hand, that he looked straight at the Defendant and observed him, that the Defendant, Wallace Williams, pointed a gun at Mr. Wilson and demanded money while saying to the victim, Irvan McLeash, ‘Get him too,’ that Williams handed the gun to the Co-Defendant who then pointed it at Mr. McLeash, that Williams then proceeded to obtain money from Mr. McLeash, that Mr. Williams proceeded to take a pipe and beat Mr. McLeash with a pipe striking him right in the head and once in the shoulder.
During the course of these events, the Defendant said, T love it;’ that the victims Irvan McLeash and Robert Wilson were not participants in these crimes and were innocent victims.
That’s finding number four.
Number five: The Defendant has showed by his conduct in this trial as well as his prior conduct, a total disregard for the criminal justice system.
Number six: That all prior efforts of rehabilitation of the Defendant have failed.
Number seven: That a firearm and a deadly weapon were both used during the commission of this crime.
Number eight: The Defendant has shown no remorse whatsoever with statements which this Court believes such as: T love it,’ and, ‘Get him too.’
Number nine: That the Defendant is intelligent and alert and capable of understanding his actions.
Number ten: There is a likelihood, if not prevented, the Defendant will continue to commit crimes against the people of the State of Florida.
It is, therefore, the conclusion of this Court that the Defendant is a danger to society.” (R. 317-19).

Second, the prosecutor’s argument to the jury was not a legally improper argument; we think the jury was perfectly capable of evaluating the argument for what it was and would not have been inflamed by it. The prosecutor compared defense counsel’s argument in closing to that of a “squid” attempting to cloud the water. Not all proper arguments need be cogent ones; indeed, as here, they may even be regarded as dubious or unpersuasive by some. We trust that juries can sort out the cogent from the unpersuasive in argument by counsel, and conclude that no error was committed in allowing the prosecutor herein to make this argument. A prosecutor’s jury argument need not rise to the level of the giants of our profession in order to be proper under the law. See Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

Finally, we see no error in the innocuous jury communication complained of herein in which a corrections officer told the jury during its deliberations that it would have to wait until the trial judge returned to court before a jury question could be answered. State v. Hunter, 358 So.2d 50 (Fla. 4th DCA), cert. denied, 364 So.2d 886 (Fla.1978). Moreover, the defendant waived any such error by failing to object below after he was apprised of said communication. Castor v. State, 365 So.2d 701 (Fla.1978); State v. Prieto, 439 So.2d 288 (Fla. 3d DCA 1983).

The final judgments of conviction and sentences imposed herein are accordingly

Affirmed.


text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-864.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Ullman & Ullman and Michael W. Ull-man, North Miami Beach, for appellant.
    Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

Since the bail bond in question was written prior to October 1, 1982, the amendments to Sec. 903.28 which became effective on that date are not applicable. Accredited Surety and Casualty Co., Inc. v. State, 383 So.2d 308 (Fla. 2d DCA 1980) (bail bond is contract); Lumbermens Mutual Casualty Co. v. Ceballos, 440 So.2d 612 (Fla. 3d DCA 1983) (statute in effect when contract is entered into controls). Under the thus-controlling prior version of the statute, Sec. 903.28, Fla.Stat. (1981), the trial court correctly denied the surety’s motion for remission. Crompton v. State, 78 So.2d 692 (Fla.1955); Leach v. State, 293 So.2d 77 (Fla. 1st DCA 1974).

Affirmed.


text:
    George L. FORM and Helen C. Form, his wife, etc., et al., Appellants, v. Raphael STEINHARDT, Appellee. Raphael STEINHARDT, Appellant, v. George L. FORM and Helen C. Form, his wife, etc., et al., Appellees.
    Nos. 83-1059, 83-1074.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and John J. O’Brien, Miami, for appellants in No. 83-1059 and appellees in No. 83-1074.
    Hal P. Dekle, Tulsa, Okl., Schwartz, Klein, Steinhardt, Weiss & Weinstein, P.A., Miami, and Raphael Steinhardt, North Miami Beach, James V. Johnstone, Miami, for appellee in No. 83-1059 and appellant in No. 83-1074.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed.


author: MILLS, Judge. MILLS, Judge.

text:
    Faye DAUGHARTY, Appellant, v. John F. DAUGHARTY, II, Appellee.
    No. AS-332.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    Rehearing and Motion to Vacate Denied Dec. 20, 1983.

      William H. Maness of Maness & Kacher-gus, Jacksonville, for appellant.
    Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, P.A., Jacksonville, for appellee.
   MILLS, Judge.

After ordering partition of the parties’ marital home, the trial court entered an order which awarded attorney’s fees to the former husband pursuant to Section 64.081, Florida Statutes (1981), but which refused to award attorney’s fees to the former wife. The trial court found that the former wife’s attorney did not render services “of benefit to the partition” because he raised numerous frivolous defenses and filed several frivolous motions in opposition to the partition action initiated by the former husband. We agree with that finding and approve the trial court’s denial of fees to the former wife.

We also find no error in the trial court’s failure to apportion the fees awarded in proportion to the interest of each former spouse in the partitioned property. Ordinarily, the trial court must so apportion any fees awarded. McQueen v. Forsythe, 55 So.2d 545 (Fla.1951); Adler v. Schekter, 197 So.2d 46 (Fla. 3d DCA 1967). In this case, however, the former wife was the successful bidder at the partition sale, and the parties had stipulated that the successful bidder would be responsible for the payment of all attorney’s fees. That stipulation should govern. Greene v. Galloway, 332 So.2d 52 (Fla. 1st DCA 1976).

Finally, contrary to the former wife’s contentions, we do not find the amount of the fee awarded excessive under the circumstances of this case.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING AND MOTION TO VACATE OPINION DENIED

MILLS, Judge.

Appellant objects to the Court’s statement in its decision that “[t]he trial court found that the former wife’s attorney did not render services ‘of benefit to the partition’ because he raised numerous frivolous defenses and filed several frivolous motions in opposition to the partition action initiated by the former husband.” Appellant contends that this Court’s statement is not supported by the record. Untrue. We quote from the trial court’s order from which appellant takes this appeal:

There has been no action taken in this entire matter by Faye Daugharty or her attorney which was “of benefit to the partition.” The Court finds that quite to the contrary the record of this proceeding is swollen to a ridiculous degree with frivolous documents and legal paper filed by the Defendant in her attempt to hinder the partition, including motions, memoranda, the setting of hearings, rehearings and appeals. The fruitless delay tactics employed by the Defendant in this action wasted more than one hundred (100) hours of the time of the Plaintiff’s attorney and of this Court, and did not at any time clarify in the slightest the rights of the parties in the property, and did not at any time raise any justiciable issue of law or fact.
This Court finds that the tactics employed by the wife in this cause were vexatious, groundless, stalling tactics and in no way could they be construed as being “of benefit to the partition”, and this Court feels that under such circumstances to attempt to compensate the lawyer for the Defendant for these tactics, that were not of benefit to either the property or to the parties, would be a gross abuse of this Court’s discretion. It is incongruous that the attorney for the delaying party should in any manner be rewarded for the utilization of such dilatory tactics.

There was competent substantial evidence supporting the trial court’s finding.

Appellant contends the Court incorrectly construed the stipulation entered into by the parties’ attorneys when it stated, “[i]n this case, however, the former wife was the successful bidder at the partition sale, and the parties had stipulated that the successful bidder would be responsible for the payment of all attorney’s fees. That stipulation should govern.” Again, untrue. The Court found that the trial court’s construction of the stipulation accorded with logic and reason. The trial court stated in its order appealed, “[i]t is the further finding of this Court that the Stipulation entered into between the parties was' entered into so that the question of attorneys’ fees would be the responsibility of the party who purchased the property at the sale conducted by the Clerk of the Court.”

Appellant’s attorney states that this Court’s decision, in effect, charges him with malpractice. Once again, untrue. This is his characterization of his actions. This Court made no such charge, makes no such charge, and has no such issue before it.

The other matters urged by appellant are not discussed here because they lack merit and do not warrant discussion. The matters responded to by the Court are of equal import but were discussed because of their implications. The Court would be remiss if it failed to point out that the motion for rehearing filed by appellant clearly and totally violates the provisions of Rule 9.330.

As was stated by the Queen in Hamlet, “The lady doth protest too much, methinks.” Or as was stated by Boswell in his Life of Johnson, “I do not love a man who is zealous for nothing.”

Appellant’s motions for rehearing and to vacate are denied.

THOMPSON and WIGGINTON, JJ., concur.


author: OTT, Chief Judge.

text:
    Raymond Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 82-2155.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Raymond Lee Smith pled nolo contendere to grand theft in the second degree, specifically reserving his right to appeal the trial court’s denial of his motion to dismiss based on entrapment. He also claims error in the imposition of certain conditions of probation.

According to the motion to dismiss, the Tampa Police Department deployed a decoy at Kennedy Boulevard and Bernard Avenue in Tampa on January 13, 1982. The police decoy was dressed in old clothes and acted sick or drunk. He had $150 protruding from a pocket. Defendant was not a suspect or a target of the decoy. However, at 9:20 p.m., he approached, the decoy and removed the money from the decoy’s pocket. Defendant was immediately arrested.

The trial court correctly denied defendant’s motion for dismissal on the ground that the use of a police decoy in the manner described above is entrapment as a matter of law. See State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983), petition for review granted, No. 63,451 (Fla.1983); State v. Goldstein, 435 So.2d 352 (Fla. 2d DCA 1983). But see State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982); State v. Holliday, 431 So.2d 309 (Fla. 1st DCA 1983), petition for review granted, No. 63,832 (Fla.1983).

Conditions of probation 10 and 17 relate to payment of attorney’s fees and court costs. In Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982), this court concluded that such costs can properly be recovered from an insolvent defendant. However, the record does not indicate that the court entered its order with the notice and hearing required by section 27.56(7), Florida Statutes (1981). Accordingly, the order assessing attorney’s fees and costs is hereby VACATED and the case is REMANDED for a hearing consistent with these matters. See Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983); Benton v. State, 440 So.2d 493 (Fla. 2d DCA 1983).

We find no error in imposition of the remaining conditions of probation.

AFFIRMED as modified.

SCHEB and DANAHY, JJ., concur.


author: RYDER, Acting Chief Judge.

text:
    Michael W. KINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-345.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.

      Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Michael W. Kinney appeals his convictions and sentences for attempted first degree murder, robbery with a weapon, and grand theft. Kinney contends the trial court erred in denying his motion to suppress and in sentencing him as a habitual offender with respect to the first degree murder and grand theft convictions. We find no merit in Kinney’s first contention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, we must vacate the enhanced sentences because neither the written judgment nor the sentence indicates Kinney was found to be a habitual offender, and the record, including the sentencing hearing, does not sufficiently show Kinney was properly determined to be a habitual offender in accordance with section 775.084, Florida Statutes (1981).

Accordingly, the three convictions and sentence for robbery with a weapon are affirmed. The sentences for attempted first degree murder and grand theft are vacated, and the trial court is directed on remand to impose either standard sentences for those two convictions or appropriate enhanced sentences only after a determination pursuant to section 775.084 that Kinney is indeed a habitual offender.

AFFIRMED in part, REVERSED in part.

DANAHY and SCHOONOVER, JJ., concur.


text:
    Mark J. BOTTIE, Appellant, v. STATE of Florida, Appellee.
    No. 83-606.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dismissed without prejudice to defendant’s right to file a motion for posteonviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Reginald D. CHESTER, Appellant, v STATE of Florida, Appellee.
    No. 83-727.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    John R. Parkhill, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks reversal of his conviction for robbery. He urges as support for his position the failure of the trial judge to instruct the jury on the lesser included offense of petit theft. In State v. Bruns, 429 So.2d 307. (Fla.1983), this same issue was before the court which held that “[f]unda-mental trial fairness requires that a defendant being tried for robbery should be permitted to have an instruction on a lesser included offense upon timely request.” (Emphasis supplied.) In this case, there was neither a request for such an instruction, nor an objection made for the lack of such an instruction.

We therefore affirm.

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Eugene SPURLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-730.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Jerry Hill, Public Defender, Bartow, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence. However, the portions of the trial court’s order requiring appellant to pay $10 pursuant to section 960.20 (Crimes Compensation Trust Fund), and $4 pursuant to sections 943.25(4) and 943.25(8) (Law Enforcement Training and Correctional Officer Training Trust Funds) are stricken since the trial court adjudged appellant insolvent prior to trial and appointed the public defender to represent him. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983) (question certified).

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ, concur.


author: SCHEB, Judge.

text:
    Kimberlee Anne FINDLEY, Appellant, v. Steven Lynn FINDLEY, Appellee.
    No. 83-1407.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Jerry C. Cobb, Clearwater, for appellant.
    Herman B. Blumenthal, III, Seminole, for appellee.
   SCHEB, Judge.

Appellant challenges a nonfinal order denying her motion to dismiss her former husband’s petition for modification of child custody. She also attacks the trial court’s order granting the husband’s motion to enforce his rights of visitation with the children. She contends that under the guidelines of the Florida Uniform Child Custody Jurisdiction Act (UCCJA), sections 61.1302-61.1348, Florida Statutes (1981), the trial court erred in assuming jurisdiction over the cause. We agree and reverse.

A final judgment of dissolution of the parties’ marriage was entered August 21, 1980, by the Circuit Court in Pinellas County. The wife was awarded custody of the parties’ two minor children, and the husband was given reasonable rights of visitation. The final judgment contemplated that the wife might remove the children from this state. The trial court also specifically retained jurisdiction of the action “to enforce ... or to modify the same as equity may demand.” Shortly after entry of the final judgment, the wife and children left Florida. In August 1981 they moved to Illinois, where the children have been attending primary school. The husband has continued to reside in Florida.

On July 7, 1983, pursuant to the former wife’s petition, an Illinois court entered an order establishing the Florida dissolution judgment and temporarily suspending the husband’s visitation rights. That court specifically found that it had jurisdiction to make a child custody determination under UCCJA. The husband made a special appearance in the Illinois proceeding but took no appeal from the court’s final judgment. The court’s order found:

1. That the Petitioner and the two minor children of the parties have been residents of Olney, Richland County, Illinois since August, 1981.
2. That the Petitioner and the two minor children of the parties have significant and substantial contacts with the State of Illinois in that both minor children were born in the State of Illinois, both minor children resided in the State of Illinois until 1977, the children have attended school in the State of Illinois for the past two school years, the children attend church in the State of Illinois, the children are involved in a number of extracurricular activities in the State of Illinois, the maternal grandparents of the minor children and other relatives reside in the State of Illinois, and the children are presently being treated by a pediatrician and clinical psychologist in the State of Illinois.
3. That there is in the State of Illinois substantial evidence concerning the minor children’s present and future care, protection, training and personal relationships.
4. That this Court has jurisdiction to make a child custody determination, as that phrase is defined in Ill.Rev.Stat., Ch. 40, § 2103.02, pursuant to Ill.Rev.Stat., Ch. 40, § 2104.

On April 20,1983, after being served with a summons in the Illinois action, the husband filed a petition in the Circuit Court in Pinellas County seeking to modify the custody arrangements. The wife moved to dismiss that suit for lack of jurisdiction and filed with the court certified copies of the documents from the Illinois proceedings. The husband then moved to enforce his visitation rights under the Florida judgment of dissolution. The court ruled that it had jurisdiction and granted the husband’s motion to enforce his rights of visitation. This appeal by the wife ensued.

The issue before us is whether the trial court erred in not deferring to the jurisdiction previously exercised by the Illinois court.

In Matteson v. Matteson, 379 So.2d 677 (Fla. 2d DCA 1980), the Circuit Court in Pinellas County granted a final judgment in 1975. The final judgment awarded custody of the two minor children to the husband. A few months later custody was awarded to the wife by joint stipulation. She and her children then moved to the State of New York and continued to reside there. Difficulties arose between the parties, and in 1978 the husband obtained an order from the Circuit Court in Pinellas County modifying the final judgment and awarding him permanent custody of the two children. The wife subsequently obtained an order granting her temporary custody from a New York court pursuant to UCCJA. The New York order restrained the husband from enforcing the Pinellas County Circuit Court order. The wife appealed the final order rendered in Pinellas County. We held that the fact that the original divorce decree and subsequent modification were obtained in Florida was not sufficient to vest jurisdiction in the Florida court on the issue of custody. Judge Hobson, writing for the court, noted that where Florida was no longer the children’s “home state,” that these facts were not sufficient to satisfy section 61.-1308(l)(b)l, which requires “significant connection” between the State of Florida and the children and at least one parent.

The husband seeks to distinguish our holding in Matteson. He points out that in the case now before the court the trial court had expressly retained jurisdiction to enforce or modify the custody and visitation provisions. This, he notes, is a factor which does not appear in our opinion in Matteson. We do not find this to be a legitimate distinction because a trial court has the right to consider modification of custody and visitation rights without an express reservation of jurisdiction as long as those items were ruled on in the final judgment. Wells v. Ward, 314 So.2d 138 (Fla.1975). To accept the husband’s position would mean that despite the legitimate relocation of children to another state, the parties would be relegated to litigating custody and visitation problems in the state where the original judgment was entered. Provincialism of this type is contrary to the intent of the UCCJA. § 61.1304, Fla.Stat. (1981).

Here, as in Matteson, the children have an established home in another state, and it is there that the courts have access to their school and medical records as well as information concerning their home life. Moreover, from a practical standpoint, enforcement of matters concerning custody and visitation can be better accomplished for all concerned where the children reside. See § 61.1304(3), Fla.Stat. (1981). Clearly, Illinois is the state which is in the best position to decide this case in the interest of the children. See Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980). But see Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980).

The Illinois court has already shown a willingness to assume responsibility in this matter. As such, the Florida court should have declined jurisdiction after determining that the Illinois court was exercising jurisdiction substantially in conformity with the UCCJA. § 61.1314, Fla.Stat. (1981). See Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), review dismissed, 427 So.2d 736 (Fla.1983); Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979).

Accordingly, we hold that the trial court in Pinellas County erred in denying the appellant’s motion to dismiss and in granting the husband’s motion to enforce rights of visitation under the 1980 final judgment.

REVERSED.

OTT, C.J., and BOARDMAN, J., concur.


text:
    Erling INGVALDSEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-642.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Rehearing Denied Dec. 28, 1983.
    Shamim A. Mirza, Hialeah, and Harold Heller of Truett & Watkins, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Bruce M. Lee and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant contends the trial court erred in admitting certain exhibits into evidence because they contained items of evidence that allegedly were planted. However, appellant did not properly preserve this point in the trial court and makes this assertion for the first time on appeal. He argues that the failure to properly preserve the error for appeal resulted from incompetent counsel. The question of the competency of his counsel may only be reviewed by the trial court upon a motion under Florida Rule of Criminal Procedure 3.850.

After a careful review of the record, we conclude that the points properly raised by appellant do not constitute error. Therefore, we affirm the conviction and sentence without prejudice to the appellant to seek post-judgment relief pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

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


author: HURLEY, Judge.

text:
    Leamon T. COX, Appellant, v. STATE of Florida, Appellee.
    No. 82-2351.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

We are asked to decide whether the trial court impermissibly restricted cross-examination of a key prosecution witness and, if so, whether the error requires reversal. We answer both questions in the affirmative.

Leamon Cox was charged with attempted first degree murder of his “common-law wife” Lois. Additionally, he was charged with possession of a firearm while engaged in a felony offense. During cross-examination of Mrs. Cox, the defense attempted to show that Mrs. Cox had filed a civil suit to divide their personal property and adjudicate the custody of their son. The state objected on grounds of relevancy. Initially,, the trial court limited its ruling by excluding any reference to a recent contempt hearing. Later, however, the court expanded its ruling and prohibited any reference to the pending civil suit. This caused defense counsel to retract his question in the presence of the jury. Thereafter, during closing argument, the prosecutor contended that, aside from her injuries, Mrs. Cox had no interest in the outcome of the case.

It is fundamental that “[a]ll witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice or interest.... This is especially so where a key state witness is being cross-examined.” Jones v. State, 385 So.2d 132, 133 (Fla. 4th DCA 1980); accord Mendez v. State, 412 So.2d 965 (Fla.2d DCA 1982); Blair v. State, 371 So.2d 224 (Fla.2d DCA 1979); Brown v. State, 362 So.2d 437 (Fla. 4th DCA 1978). Furthermore, “the existence of a civil suit by a witness against a criminal defendant is relevant to show such potential bias in the criminal trial.” Webb v. State, 336 So.2d 416, 418 (Fla.2d DCA 1976); see also Lombardi v. State, 358 So.2d 220 (Fla. 1st DCA 1978); Stradtman v. State, 334 So.2d 100 (Fla.3d DCA 1976), aff’d, 346 So.2d 67 (Fla.1977); Bessman v. State, 259 So.2d 776 (Fla.3d DCA 1972). Consequently, it is clear that the trial court erred in restricting cross-examination.

The more difficult question is whether the error is harmless. At trial it was undisputed that Mr. Cox shot his wife and, thus, the inquiry focused on his state of mind— whether the shooting was premeditated, the act of a depraved mind or the result of an uncontrolled outburst of emotion and passion. Mrs. Cox was the only eyewitness to the entire episode; she alone viewed each moment of the event and heard every word of conversation. Thus, Mrs. Cox’s testimony was crucial to the jury’s classification of the offense and any impermissible limitation on her cross-examination must be strictly scrutinized. See Kirkland v. State, 185 So.2d 5 (Fla.2d DCA 1966). Her testimony, if believed and accepted in its entirety, would have supported a verdict of guilty of attempted first degree murder. The defendant’s version, on the other hand, would have permitted conviction of a lesser offense. In fact, the jury opted for a lesser offense and returned a verdict of guilty of attempted second degree murder. We cannot know, however, whether the jury would have returned the same verdict had there been full cross-examination. Under these circumstances, we cannot say that the error in question was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967).

Accordingly, the judgment of conviction is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

DELL, J., and SIMONS, STUART M., Associate Judge, concur.


text:
    Kenneth Earl THIRSTY, Appellant, v. STATE of Florida, Appellee.
    No. 82-2551.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. However, we strike from the order finding appellant guilty of violations of probation those findings referring to failure to report, failure to pay costs of supervision and unlawful possession of a jack and batteries as unsupported by the evidence.

AFFIRMED AS MODIFIED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    GREATER PALM BEACH SYMPHONY ASSOCIATION, INC., a Florida corporation, and Ethel Stone, Appellants, v. Barbara HUGHES, Frederick Hughes, American Motorists Insurance Company, Fireman’s Fund Insurance Company, and Aetna Fire Underwriters Insurance Company, Appellees.
    No. 82-2583.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., West Palm Beach, and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellants.
    Dennis A. Vandenberg of Brennan, Mc-Aliley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellee, American Motorists.
    Fredrick Hughes and Barbara Hughes, pro se.
   BERANEK, Judge.

The plaintiffs, Greater Palm Beach Symphony and Ethel Stone, appeal an order dismissing, with prejudice, all counts in their complaint against American Motorists Insurance Company. We affirm in part and reverse in part.

The plaintiffs initially sued Barbara and Frederick Hughes. The complaint was amended several times and in the fourth amended complaint the plaintiffs sued the Hughes and three different insurance companies alleging, among other things, libel and slander. The plaintiffs’ complaint was in the alternative; two counts alleged libel and slander with no specific intent, and two counts alleged the acts were committed •with malicious intent. Eventually, the court dismissed these counts: III, IV, V, and VI as against American Motorists Insurance Company, finding that no coverage existed under its policy.

The insurance policy in question is a personal catastrophe liability policy. It expressly provides coverage for libel and slander. However, it excludes coverage for “an act committed or directed by a covered person with intent to cause personal injury or property damage.”

The trial court determined that all the counts in the plaintiffs’ complaint were libel per se. Because the law governing libel per se presumes that the statements were made with malicious intent, the court concluded the policy’s intentional tort exclusion negated coverage. The court thus dismissed the complaint against the carrier with prejudice. We reject this reasoning.

In Employers Commercial Union Insurance Company v. Kottmeier, 323 So.2d 605 (Fla. 2d DCA 1975), a physician was sued by an anesthesiologist for slander. The physician’s insurance policy specifically provided coverage for libel and slander except if published maliciously. The trial court found that the policy provided coverage for the alleged slander. The Second District Court of Appeal affirmed and held that a slanderous statement was covered by the policy unless the statement was made with a specific intent to harm which is equivalent to actual malice. In reaching this conclusion, the court followed the rule that even though an act which causes injury was intentionally done, liability coverage will not be excluded under an intentional injury exclusion clause unless the insured acted with specific intent to cause injury. Phoenix Insurance Company v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974); Cloud v. Shelby Mutual Insurance Company, 248 So.2d 217 (Fla. 3d DCA 1971).

The same issue was considered in Federal Insurance Company v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1107 (Fla.1980). Federal Insurance appealed a final summary judgment which determined it was required to defend and provide coverage for certain aspects of an-action for slander brought against its alleged insured. The insurance policy was similar to the policy in this case in that it specifically provided coverage for libel, slander, and defamation but expressly excluded coverage for any intentional acts committed by the insured. The complaint alleged that all acts were done with malice. On appeal, the third district court found coverage was negated by the allegations of the complaint and reversed the summary judgment against the carrier. However, in a later appeal in the same case, Mackin v. Applestein, 404 So.2d 789 (Fla. 3d DCA 1981), the court implied that had the plaintiff pled alternatively, a cause of action within the coverage may have been stated in those counts where “malicious intent” was not alleged. This statement is consistent with the Kottmeier decision.

In the instant case, two counts (IV and VI) contain the actual allegation that the slander and libel were committed with malicious intent. Counts III and V do not contain that allegation. Therefore, we hold that the trial court erred in granting the motion to dismiss Counts III and V since it prematurely decided that, as presented in the complaint, all the statements were made with such a malicious intent as to negate coverage. On the contrary, the only issue that should have been resolved at this point was whether or not the complaint stated a cause of action which was within the scope of the liability coverage. Employers Commercial Union Insurance Company v. Kottmeier, supra. In accordance with the Kottmeier rationale we hold that coverage will only be negated by actual malice which will require a showing of specific intent to harm. Further actual malice or specific intent to harm are factual matters which should not have been decided on motion to dismiss. We affirm the dismissal of Counts IV and VI and reverse as to Counts III and V. Further, American Motorists Insurance Company has a duty to defend under the same theory enunciated in Employers Commercial Union Insurance Company v. Kottmeier, supra.

AFFIRMED IN PART; REVERSED IN PART, and REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY and HERSEY, JJ., concur.


text:
    Maria T. POPEJOY, etc., Appellant, v. Gerald D. GREGER, et al., Appellees.
    No. 83-135.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Rehearing Denied Dec. 23, 1983.
    Kevin A. Malone of Krupnick & Campbell, P.A., Fort Lauderdale, and Richard A. Barnett, Hollywood, for appellant.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appel-lees.
   PER CURIAM.

This is an appeal from the dismissal with prejudice of plaintiffs’ fifth amended complaint. The complaint was in two counts, but on appeal we are asked to reverse only as to Count II. We take the issue as presented in the briefs and thus do not consider Count I. Count II is based on the legal theory of “negligent entrustment.” We hold that the injured party herein was not a third party within the rationale of Boland v. Suncoast Rent-A-Scooter, 439 So.2d 916 (Fla. 2d DCA 1983); Jowanowitch v. Florida Power & Light Company, 277 So.2d 799 (Fla. 4th DCA 1973); and Cashell v. Hart, 143 So.2d 559 (Fla. 2d DCA 1962). The trial court was thus correct in rejecting the theory of liability and, after five attempts, in dismissing with prejudice.

AFFIRMED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Hooshang KADIVAR, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 83-625.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Rehearing Denied Jan. 4, 1984.
    R.M. Bernhardt, P.C., Atlanta, Ga., for appellant.
    Joseph W. Lawrence, II, Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

Appellant is a medical doctor whose license has been revoked because of sexual episodes involving patients who were either hospitalized or at his medical office on the occasions in question. He has raised no fewer than thirteen points on appeal, none of which justifies reversal. Accordingly, we affirm.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


text:
    Bernard Lee VANN, Appellant, v. STATE of Florida, Appellee.
    No. 83-655.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals from the revocation of his probation. An affidavit of violation of probation was filed alleging five different violations. While not raised by either party, the verbal pronouncement of the trial court found the defendant guilty of violating only two conditions of his probation while the written order found him guilty of violating all five conditions. The matter will thus be remanded to the trial court so that the written order may be made to conform to the oral pronouncement. Chester v. State, 355 So.2d 509 (Fla. 2d DCA 1978); Baldasare v. State, 363 So.2d 612 (Fla. 2d DCA 1978).

On appeal, the defendant raises two issues: (1) a hearsay argument and (2) an argument based on insufficient evidence regarding ability to pay. We have reviewed the matter and find no error under the hearsay point. We find it unnecessary to address the second argument because the trial court did not orally find defendant guilty as to the failure to pay allegation.

The matter is thus remanded to the trial court for further proceedings in accordance with this opinion.

AFFIRMED IN PART AND REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Elijah Isaac WALLS, Appellant, v. STATE of Florida, Appellee.
    No. 83-980.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, e.g., State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA 1981); Milton v. State, 140 Fla. 617, 192 So. 219 (1939); Williams v. State, 437 So.2d 133 (Fla.1983); Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), affirmed, 457 U.S. 31,102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Delap v. State, 440 So.2d 1242 (Fla.1983).

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, et al., Dennis Kline, et al., Appellees.
    No. 83-1384.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    John H. Beach, Gen. Counsel, and Linda Gurfein Miklowitz, Dept, of Transp., Tallahassee, for appellant.
    Robert E. Austin, Jr., Leesburg, for ap-pellees-Northwestern Nat. Ins. Co., et al.
    Philip E. DeBerard, III, Stuart, for appel-lees-Dennis Kline, et al.
   PER CURIAM.

Affirmed on the authority of Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983).

HERSEY, HURLEY and WALDEN, JJ., concur.


text:
    William Jay BUCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1963.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    William Jay Buck, pro se.
    No appearance on behalf of appellee.
   PER CURIAM.

AFFIRMED. See Alvord v. State, 396 So.2d 184 (Fla.1981); Kish v. State, 253 So.2d 889 (Fla. 3d DCA 1971); Foster v. State, 400 So.2d 1 (Fla.1981); and Meeks v. State, 382 So.2d 673 (Fla.1980).

HERSEY, GLICKSTEIN and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Jonathan Barclay SMITH, Appellee.
    No. 83-82.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    William B. Moffitt of Moffitt, Keats & Jones, Alexandria, Va. and G. Russell Petersen, Vero Beach, for appellee.
   DOWNEY, Judge.

The State of Florida appeals an order granting appellee’s motion to suppress evidence. We reverse.

Around midnight, a traffic controller at the Vero Beach airport received a search request from Miami regarding aircraft 1036M, flying from Puerto Rico to Orlando. Shortly thereafter, the controller received a request for landing instructions from aircraft that identified itself as 1041M, but the plane did not appear. Later the same plane, which had mistakenly landed at Ft. Pierce, requested landing instructions again and this time landed in Vero Beach. While still on the runway the aircraft turned off its lights, but turned them on again once it reached the aircraft parking area. Under the lights of the parking area, the controller could see the aircraft number, which turned out to be 1036M, rather than 1041M. The pilot inquired about purchasing fuel and was advised that none was available until morning. Upon receiving a call from a Custom’s Agent the controller suggested a law enforcement check of the aircraft was indicated.

Appellee, the pilot of the aircraft referred to, parked the plane and departed for the night. Thereafter, the police arrived at the airport, discussed the foregoing facts with the controller, and then viewed the aircraft. With the aid of flashlights, several of them peered through the plane windows and observed bales wrapped in greenish-black plastic and secured with masking tape. Believing the plane to contain contraband, they staked out the plane for the night. Around 7:00 a.m. appellant arrived, entered the terminal, and was arrested. Using appellant’s keys, the police searched the plane and found that the bales contained marijuana.

The trial judge granted appellee’s motion to suppress the contraband because he found: 1) the police did not have probable cause to make a search, 2) even if they did have probable cause, they had adequate time to obtain a warrant but failed to do so, and 3) there were no exigent circumstances to obviate the warrant requirement because the plane was secured by the police.

We respectfully suggest that all three bases for the order of suppression are erroneous.

In Adoue v. State, 408 So.2d 567 (Fla.1981), the supreme court upheld the search of an aircraft under circumstances similar to those present in the instant case. In the present case, law enforcement personnel were lawfully present in the area surrounding the aircraft, and did not violate appel-lee’s fourth amendment rights by looking through the aircraft’s windows with the aid of flashlights. Given the suspicious circumstances surrounding the arrival of appellee’s aircraft, this investigatory activity was entirely reasonable. Through the windows, several officers testified that they observed wrapped bales, which they believed contained marijuana based on their prior law enforcement experience.

In Adoue, the police officers testified that through the window they were able to see a green leafy substance protruding from a tear in one of the bundles. The court held that this “open view” observation of contraband rendered the subsequent warrantless search of the aircraft’s cabin constitutional under the doctrine of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also Ensor v. State, 403 So.2d 349 (Fla.1981). Moreover, the court held “[t]he fact that the plane was parked and had been secured by the police does not render the Carroll exception to the warrant requirement inapplicable.” Adoue, supra, at 571.

In contrast to Adoue, law enforcement personnel observing the packages in appel-lee’s aircraft could not actually see the contents thereof, through a tear or otherwise. What was in view were bales wrapped in greenish-black plastic secured with masking tape. We hold that under the circumstances the observation of these bales in open view was sufficient to support a warrant-less search of the aircraft and bales therein. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

In Albo v. State, 379 So.2d 648 (Fla.1980), a detective looked through the windshield of a motor home, which he had cause to believe was a stolen vehicle.

He noticed thirty-five to forty bales stacked in the middle and rear portions of the motor home. The bales were square and wrapped in burlap and black plastic. Mastaler testified that through his two and one-half years experience in narcotics investigations and undercover purchases, he knew the bales to be marijuana. Albo, supra, at 649.

The bales in fact contained marijuana, and the driver was arrested. The court held that sufficient probable cause was established for a reasonable man to conclude that an offense was being committed. We conclude that the officers’ observation of bales in appellee’s aircraft, which based on their experience was consistent with marijuana packaging, constituted an open view of contraband as was present in Adoue. See Rizzo v. State Ex. Rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981).

In view of the foregoing, the evidence should not have been suppressed, thus mandating a reversal of the order and a remand for further proceedings.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


author: JOANOS, Judge. NIMMONS, Judge,

text:
    STATE of Florida, Appellant, v. Boyce E. GLOSSON, Matthew A. Bronza, Robert C. Brooke, James P. Sheridan, Howard T. Smith, and Frances Lorraine Gonzalez, Appellees.
    No. AO-431.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1983.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellant.
    Robert G. Duval of Bergstresser & Duval, Miami, for appellee Boyce E. Glosson.
    Harvey Robbins, North Miami, for appel-lees Matthew A. Bronza, Robert Brooke and James Sheridan.
    Harvie S. Duval of Greenfield & Duval, North Miami, for appellees Harold T. Smith and Frances Lorraine Gonzalez.
   JOANOS, Judge.

The State of Florida appeals the trial court’s dismissal of the two-count information charging appellees with possessing between 100 and 2,000 pounds of cannabis and conspiring to traffic more than 100 pounds of cannabis because of prosecutorial misconduct. We agree that there was prosecutorial misconduct requiring dismissal and affirm.

Appellees were arrested after their alleged involvement in a marijuana transaction in which Norwood Lee Wilson (Wilson), acting as an agent for the Levy County Sheriff’s Department, was involved. In this case, Wilson ¡ set up the alleged transaction through Janet Moore, an acquaintance of appellees Gonzalez and Smith. Wilson was the seller, Gonzalez and Smith allegedly found buyers. Motions to dismiss based upon entrapment and prosecutorial misconduct were filed and denied. Further motions to dismiss prompted a hearing at which the state stipulated that entrapment had been asserted by each defendant; that Wilson had an oral agreement with the Levy County Sheriff, which was known and carried out under the State’s Attorney’s supervision; that Wilson was to receive 10% of all civil forfeitures as a result of the criminal investigations; that the contingent fee would be paid out of civil forfeitures going to the Levy County Sheriff’s Department; that Wilson must testify and cooperate in the prosecution to collect the contingent fee; that this was such a case; and that successful prosecution was unattainable without Wilson’s testimony. The trial court found as a matter of law that the state was guilty of prosecutorial misconduct inherently violative of constitutional due process.

The state argues, among other things, that appellee’s due process defense is bottomed on the notion that the governmental involvement in the case has rendered its witnesses inherently incredible and that the evaluation of the credibility of a witness is for the jury, not the judge.

While a witness’s credibility is normally evaluated by the jury, we do not see this as merely a question of credibility to be left to the jury. The state has admitted its involvement in a scheme whereby an individual is promised payment contingent upon his successfully making criminal' cases against others to whom he is to sell cannabis provided by the Levy County Sheriffs Department. The state admits also that it has no case without Wilson’s testimony. This “payment to make cases against criminal defendants” arrangement deprives the defendants of due process. See Williamson v. United States, 311 F.2d 441 (5th Cir.1962). The circumstances of this case are not a situation where the state merely seeks evidence of criminal activity but is more akin to the manufacturing of criminal activity by the state. We cannot tolerate such behavior under our system of constitutional protections.

Inherent in the state’s citation to State v. Eshuk, 347 So.2d 704 (Fla. 3rd DCA 1977), is the argument that United States v. Joseph, 533 F.2d 282 (5th Cir.1976), removes this case from the Williamson ambit by there being no particularly named defendants as the targets of the agent’s attempts to produce evidence. The Joseph opinion focused on the targeting of defendants before the crime was committed as the factor requiring reversal in Williamson. While Joseph narrowed the Williamson holding to cover only operations directed at named defendants, there are greater similarities between Williamson and this case than were present in Joseph. In Williamson, as here, a paid informant was used to set up the illegal transaction. The Williamson opinion points out that the agent made the purchases himself, produced the evidence against the defendants and was paid for his catch — a wrongdoing precluding the use of its fruits. Williamson at 444-445. In Joseph, the paid informant merely introduced undercover police to sellers of controlled substances, with the court pointing out that the case did not hinge on the informants’ testimonies. Here, the state stipulated that it had no case without Wilson. The similarities of the agent’s direct involvement in the illegal transaction, payment only upon successful prosecution based upon the agent’s testimony and cooperation in the investigation, and the importance of the paid agent’s testimony in producing evidence against the defendants bring this case within the ambit of Williamson and distinguish it from Joseph.

Accordingly, the trial court is AFFIRMED.

LARRY G. SMITH, J., concurs.

NIMMONS, J., dissents with written opinion.

NIMMONS, Judge,

dissenting.

I respectfully dissent.

The facts upon which the defendants’ Fla.R.Crim.P. 3.190(c)(4) motions to dismiss were presented to the court were stipulated by the State and defendants as follows:

1. The defense of entrapment has been asserted by each of the defendants charged by information in this case.
2. The State’s chief witness in this matter, Norwood Lee Wilson, entered into an oral contract with the Sheriff of Levy County, Florida.
3. The above-mentioned contract was entered into with full knowledge, concurrence and carried out under the investigative supervision of the State Attorney’s Office of the Eighth Judicial Circuit.
4. The conditions of this contract with Norwood Lee Wilson was for Wilson to receive ten percent of all civil forfeiture proceedings filed as a result of the criminal investigations which he initiated and in which he participated.
5. The contingency fee was to be paid out of civil forfeitures going to the Levy County Sheriff’s Department.
6. Norwood Lee Wilson is required to testify and cooperate in the prosecution of the criminal cases filed as a result of the investigations which he initiated and in which he participated in order to collect the contingent fee.
7. This case is one of the aforementioned cases.
8. The successful prosecution of this case cannot be accomplished without the testimony, participation, and cooperation of Norwood Lee Wilson.

These are the facts upon which the trial court determined as a matter of law that the defendants were entitled to dismissal.

Neither the trial court’s dismissal order nor this Court’s majority opinion relies upon the defense of entrapment. The dismissal was predicated entirely upon alleged prose-cutorial misconduct which was deemed to have violated the defendants’ due process rights. I can well understand the need for recognition of a defense of entrapment available to one who is lured by law enforcement authorities into committing a crime which he otherwise had no intention of committing. However, I submit that the learned trial judge erred in relying upon this rare due process defense, a kind of “super entrapment” defense presumably available to even those up to their ears in predisposition.

In the past 20-odd years, our criminal justice system has witnessed the development of an amazing assortment of procedural rights and remedies which have little or nothing to do with the determination of guilt or innocence. I fear the majority’s decision will become an unintended contribution to the “extra baggage” which has rendered our system ineffective in dealing with crime, and particularly with respect to drug trafficking, an erosive influence on the very fabric of our society.

For the purposes of their successful due process defense, the defendants do not even deny their guilt. Instead, regardless of the degree of culpability and predisposition which the state may be prepared to prove at trial, the defendants seek discharge because the law enforcement officials engaged in conduct which they regard as unfair. Assuming that the officials exceeded the bounds of propriety or, for that matter, even engaged in illegal conduct, the result should not be that admittedly guilty defendants go free. This Court has so recognized in a similar situation. In Lawrence v. State, 357 So.2d 424 (Fla. 1st DCA 1978), the undercover agent sold the defendants a pound of marijuana. The defendants appealed the trial court’s denial of their motion to dismiss on the grounds of “unconscionable misconduct, abuse of prosecutorial discretion and violations of due process and equal protection.” In affirming, we stated:

It is important to note that appellants do not rely upon the defense of entrapment. Whether or not agent Weaver’s conduct is protected by F.S. 893.09(5) we need not determine. Clearly each of the defendants were guilty of unlawful possession of marijuana and they do not claim to have been entrapped. Neither does the record reveal that the state has infringed upon their constitutional rights. As stated in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976):
“ * * * if the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law. * * ⅜ ” (Citations omitted: 96 S.Ct. at page 1650).

357 So.2d at 424, 425.

I believe the majority has gone astray in relying upon Williamson v. United States, 311 F.2d 441 (5th Cir.1962), particularly in view of the subsequent expressions by both the Supreme Court in Hampton and our court in Lawrence.

The majority’s decision will, in my view, pave the way for even more pre-trial evi-dentiary sideshows in which the beleaguered trial judge will be called upon to determine whether, during the investigation, the law enforcement officials, prosecutors and their agents engaged in conduct which might be regarded as unconscionable — and this, even though the defendant was not entrapped into committing the crime. Resourceful counsel will undoubtedly find new and imaginative ways of attempting to demonstrate how their clients have been victims of misconduct in the investigative stage, and substantial time will have to be spent by trial judges in disposing of these new pretrial proceedings, an exercise which has nothing to do with guilt or innocence.

I would leave to the jury, after adequate instructions on the well-recognized principles of the law of entrapment, the question of the defendants’ guilt or innocence.

      . There was no majority opinion in Hampton v. United States, supra. The above referred quote is from the plurality opinion announcing the judgment of the Court.


text:
    Steven Wayne ELLIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-2480.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.
    John E. Karvonen of Piper, Esteva, Kar-vonen & Lewis, St. Petersburg, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.1983); See Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979) and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979).

RYDER, A.C.J., DANAHY, J., and CLARKE, Thomas L., Jr., Associate Judge, concur.


text:
    Troy Phillip VILLAR, Appellant, v. STATE of Florida, Appellee.
    No. 82-2399.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 11, 1984.

      Harry Gulkin of Varón, Bogenschutz, Williams & Gulkin, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant appeals his conviction of second degree murder on two grounds, both related to admissibility of evidence. We affirm. Evidence of a collateral crime was admissible in this case as it was relevant to negate appellant’s theory of self-defense. See Williams v. State, 110 So.2d 654 (Fla.1959). Furthermore, we find no error in the admission of appellant’s oral statements made at the detention center. Although his parents were notified that appellant had been arrested, they were not told of the interrogation. Notification under Section 39.03(3)(a), Florida Statutes (1981), is merely to advise the parents of a juvenile’s whereabouts. Even if there had been no notification, this failure is not controlling. Admission of a juvenile’s statements depends upon their voluntariness considered in the light of the totality of the circumstances. Doerr v. State, 383 So.2d 905 (Fla.1980), Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981).

.AFFIRMED.

LETTS and HERSEY, JJ., concur.


author: PER CURIAM. ANDREWS, ROBERT LANCE, Associate Judge,

text:
    STATE of Florida, Appellant, v. Cleo D. LeCROY and Jon M. LeCroy, Appellees.
    No. 82-60.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.

      Jim Smith, Atty. Gen., Tallahassee, Stewart J. Bellus and Marlyn J. Altman, Asst. Attys. Gen., West Palm Beach, for appellant.
    James L. Eisenberg of Green, Eisenberg and Cohen, West Palm Beach, for appel-lee — Cleo D. LeCroy.
    Michael Dubiner of Dubiner & Blumberg, West Palm Beach, for appellee — Jon M. Le-Croy.
   OPINION ON REHEARING

PER CURIAM.

Pursuant to Rule 9.030(a)(2)(A)(v) of the Rules of Appellate Procedure, we certify to the Supreme Court of Florida as a matter of great public interest the following question:

Where statements made by appellants when measured by traditional factual tests are found to have been given voluntarily and without coercion or inducement, they may nonetheless be rendered legally involuntary and therefore subject to being suppressed under Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966) where, immediately following the reading of the Miranda warnings, the following statement is also read:
This statement is taken primarily in order to refresh your memory at the time you may be called to testify, if and when this matter goes to court.

Additionally, we emphasize that the .38 calibre pistol has not been suppressed as to Cleo LeCroy as it was Jon LeCroy⅛ statement which led to its discovery. Thus, the trial court properly suppressed it only as to Jon LeCroy.

With these modifications we adhere to our original opinion, 435 So.2d 354, and deny rehearing.

HERSEY and GLICKSTEIN, JJ., concur.

ANDREWS, ROBERT LANCE, Associate Judge, concurs specially with opinion.

ANDREWS, ROBERT LANCE, Associate Judge,

concurs specially.

I, once again, feel compelled to voice what I perceive to be an abbreviated chronology of the facts in this appeal.

From the very outset of the investigation into these particular murders, the individual law enforcement officers, and as a group, acted with a high degree of professionalism in their approach to the solving of this crime.

At each encounter with Appellees, Cleo and Jon LeCroy, including Cleo’s oral or informal statement to Officer Browning, the rights of Appellees were methodically protected. After obtaining Cleo’s oral or informal statement, all the facts of the case were known, the terrible truth had been exposed. There was nothing else to discover, no admissions, no intangible or tangible evidence. The only thing left to do in the investigation was the physical act of going to Miami to reduce to official possession the murder weapons Cleo had told Officer Browning could be found there.

This mechanical act of traveling to Miami was accomplished in two automobiles, one containing Jon LeCroy, the other containing Cleo LeCroy, both accompanied by Palm Beach Law Enforcement Officers.

The act of Officer Browning in obtaining State’s Exhibit (3) was an after thought or as this writer has described it — a ritualistic formality. There was not a single iota of evidence flowing from the reduction to tape of Cleo LeCroy’s prior valid oral confession. It was no more nor less than the attempted preservation of Cleo’s voluntary and knowing prior oral statements freely given after proper advisement of his Constitutional Rights.

If there is to be any prophylactic effect in this case, it is as I have stated in my dissent, to prevent the use of the tape (State’s Exhibit 3) at trial — but, nothing else is required — not the suppression of legally obtained evidence in order to inculcate upon those charged with the enforcement of the law, the error of using the improper language, as used in Knowles v. State, 407 So.2d 259 (Fla. 4th DCA 1981) and here; it would be too great a price for society to pay.

I concur in the denial of the Motion for Rehearing, not because I feel that it is without merit, but because I am confident that the Supreme Court will accept certification and place the vehicle of justice back on its proper path, so that its ultimate destination may be reached.

Should my confidence in the Supreme Court be dampened, by the refusal to accept this certified question; I would Grant the Appellant’s Motion for Rehearing.