author: MILLS, Judge. ZEHMER, Judge,

text:
    Wayne and Vivian SMITH, Appellants, v. L.J. “Lu” HINDERY, Appellee.
    No. AS-389.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Rehearing Denied Aug. 27, 1984.

      Thomas J. Farkash, Gainesville, for appellants.
    W.G. Phillips, Gainesville, for appellee.
   CORRECTED OPINION

MILLS, Judge.

Wayne and Vivian Smith, husband and wife, appeal from an order granting forfeiture of their interest in a pickup truck pursuant to the Florida Contraband Forfeiture Act, Sections 932.701-932.704, Florida Statutes (1981). The Smiths contend that the pickup truck was held by the entireties and therefore was not subject to forfeiture by one spouse without the knowledge and consent of the other. We agree and reverse.

On 21 September 1982, Wayne Smith used the pickup truck registered in the names “Smith, Vivian L. or Wayne” to transport stolen cattle. He was subsequently arrested and charged with grand theft. On 18 March 1983, the trial court ordered forfeiture of the Smith’s interest in the truck. The parties stipulated that Mrs. Smith had no knowledge of and did not consent to her husband’s illegal use of the vehicle. They also stipulated that the Smith’s title to the pickup truck was held by the entireties. The facts adduced at trial clearly supported this legal conclusion.

Property held by the entireties cannot be forfeited by one spouse acting alone. Tingle v. Hornsby, 111 So.2d 274 (Fla. 1st DCA 1959). The conjunction used between the names of a husband and wife is not determinative of whether a tenancy by entirety exists. This is determined by facts. Norman v. Bank of Hawthorne, 321 So.2d 112 (Fla. 1st DCA 1975).

In Roger Dean Chevrolet, Inc. v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969), the Fourth District Court of Appeal held on the facts adduced that an automobile registered in the names “James or Susann G. Fischer” was entireties property and that the wife was entitled to replevin after the husband purported to sell the car to Roger Dean Chevrolet without her consent. We agree with this holding and find it is applicable to the facts in the case before us.

The trial court concluded that “the act” was mandatory and therefore it was required to forfeit the Smith’s pickup truck. Not so. Forfeiture statutes are not favored in law or in equity. Forfeiture statutes are intended to apply to those individuals who are significantly involved in criminal enterprise. Statute authorizing forfeiture is discretionary, not mandatory. In re 1969 Chevrolet Camaro, 334 So.2d 82 (Fla.1976). The trial court abused its discretion under the facts and the law of this case.

The Smiths further contend that they were denied a jury trial in violation of Article I, Section 22 of the Florida Constitution. That contention is without merit. The right to a jury trial is guaranteed by the Florida Constitution only in cases where that right existed at common law, not where a right and remedy were thereafter created by statute. Hathorne v. Panama Park Co., 44 Fla. 194, 32 So. 812 (1902). The Florida Contraband Forfeiture Act did not exist at common law, and there is therefore no right to a jury trial in a forfeiture proceeding under that Act.

Finally, it is contended that the Florida Contraband Forfeiture Act violates due process by allowing prejudgment seizure of property without notice or a hearing. We disagree. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

• A word of caution. Section 319.22(2), Florida Statutes (1979), was amended effective 1 January 1980 to provide that the use of the disjunctive “or” in a motor vehicle certificate of title or registration shall create a joint tenancy with each named owner having the absolute right to dispose of the title and interest in the vehicle upon signature endorsement of only one of them and that this provision shall apply if the co-owners are husband and wife. This statute is not applicable to this case because it is not retroactive. Our opinion would have reached a different result if the statute had been retroactive.

Affirmed in part, reversed in part, and remanded for entry of an order denying forfeiture.

SHIVERS, J., concurs.

ZEHMER, J., concurs specially with opinion.

ZEHMER, Judge,

concurring specially.

While I concur in the decision of the majority, I must explain in detail my reasons for doing so. My review of numerous recent decisions involving the Florida Forfeiture Contraband Act, sections 932.701-932.704, Florida Statutes (1981), reveals a definite shift in the direction of requiring mandatory forfeiture in all eases, with no discretion in the courts and prosecutors to excuse forfeiture in appropriate circumstances. This case presents an appealing example of the need for continuing to recognize and preserve such discretion.

The undisputed record in this case reveals that when this controversy arose Wayne and Vivian Smith had been married more than thirteen years, had two young children, and appeared to have been good citizens of their community. Neither has been convicted of any crime. On October 28, 1977, the 1978 Ford custom pickup truck here involved was purchased with financing through Vivian Smith’s credit union. Vivian and Wayne each contributed $500 to the down payment, but the balance of $7,642 was financed by Vivian and fully paid by her through payroll deductions. The vehicle was titled in 1977 in the name “Smith, Vivian L., or Wayne,” and was the only motor vehicle owned and used by the Smiths for transportation of themselves and their two children.

The unfortunate episode giving rise to this forfeiture proceeding occurred on September 21, 1982, when Wayne Smith allegedly used the truck for transportation of three stolen calves. After an investigation by the Alachua County Sheriffs office, Wayne Smith and others were arrested on charges involving the theft of three calves valued at $100 each. On October 7, 1982, the sheriff seized the truck under the forfeiture statute on the ground that it was used to transport the stolen calves. Wayne Smith’s participation in the alleged transaction was “minimal.” He fully cooperated with law enforcement officers and assisted them in the investigation and apprehension of the persons principally responsible. The victim wrote a letter to the sheriff recommending against prosecution of Smith and against forfeiture of his truck.

On October 27, 1982, the state attorney, exercising his prosecutorial discretion, entered into a “Deferred Prosecution” agreement with Wayne Smith and agreed to defer prosecution of charges for twelve months and then dismiss the charges if the conditions recited therein had been met by Smith. That agreement recites, in pertinent part:

It appearing that you are alleged to have committed offense(s) against the State of Florida referenced above and it further appearing after an investigation of said offense(s) and your background, that the best interests of justice will best be served by the following procedures:
THEREFORE,
On the authority of EUGENE T. WHIT-WORTH, as State Attorney for Alachua County, Florida, prosecution in this matter will be deferred for the period of twelve (12) months from the date hereof, and your bond(s) if any, returned now, PROVIDED you now agree to abide and do henceforth fully abide by the following terms and conditions during said period:
sfc ⅜ ⅜ ⅜ ⅜ ⅝
(9) SPECIAL CONDITIONS, if any: The defendant shall assist any and all agencies in the prosecution of any and all persons for this case 82-3581-CF including but not limited to appearing and testifying in all proceedings (depositions and trial).
The Defendant shall make complete restitution to the victim Rolling Hills Dairy INC. in the amount of $100.00 per heifer for a total restitution of $300.00. . Said restitution May [sic] be offset by restitution from other culpable individuals subsequently. In the event offset oc-currs [sic] in the future an appropriate amount will be determined by the parties and or the Court and will be paid to reimburse the Defendant Wayne Smith whom has initially accepted full financial responsibility.
The State of Florida, Assistant State Attorney Gordon Groland, recommends that the Alachua County Sherrifs [sic] Office drop any forfeiture proceedings which may be contemplated or pending against Mr. Wayne Smiths property (Truck) which may be connected with this case and return said property to Mr. Wayne Smith.
sjs * sfc * * *
If you comply with these conditions during the period of deferred prosecution, the charge(s) referred to above will be dismissed. (Emphasis supplied.)

Wayne Smith complied with the conditions of the agreement.

Notwithstanding the state attorney’s agreement and recommendation, the sheriff filed a complaint on December 1, 1982, seeking forfeiture of the truck and alleging as the basis therefor:

Wayne Smith was arrested on a charge of grand theft, a felony in violation of Chapter 812, Florida Statutes, as a result of his participation in the larceny of cattle, and said vehicle, which had been used in hauling the stolen cattle, was seized upon Smith’s arrest.

Both Vivian and Wayne Smith answered, denying the alleged grounds and asserting various defenses. The matter was tried upon the parties’ stipulation of evidence, supplemented by affidavits of Vivian and Wayne Smith. The stipulation stated in part:

1. That Vivian Smith is an innocent owner as defined and contemplated under the Florida Forfeiture Statute, Florida Statute § 932.701, 932.702, 932.-703, and 932.704, and as defined and contemplated in the recent Third Court of Appeal opinion In Re: 1979 Lincoln Continental Brown v. City of Miami, 405 So.2d [249] (Fla., 3rd DCA, 1981).
⅝ Sfc sfc }⅜ ⅜!
6. It is agreed that Wayne Smith knew or should have known after a reasonable inquiry that the calves transported in the Ford Pickup vehicle which is the subject vehicle of this forfeiture action were or were likely to have been stolen and thus said vehicle was being employed or was likely to be employed in the criminal activity of the ultimate larceny of said calves.
7. It is agreed that the Ford Pickup vehicle which is the subject vehicle of this forfeiture action was owned by Vivian and Wayne Smith as husband and wife and thus said vehicle was property owned by the marriage legally defined as property held by Vivian and Wayne Smith as tenants by the entireties. (Emphasis added.)

The trial court ordered forfeiture pursuant to sections 932.701-932.704, Florida Statutes. Although obviously concerned about the equities militating against forfeiture in this case, the trial court concluded that the Smiths did not have a legally sufficient defense because sections 932.701-932.704, mandated forfeiture and left no discretion in the state attorney, the sheriff, or the court to excuse or deny forfeiture in these circumstances. The trial court expressly declined to follow Roger Dean Chevrolet, Inc. v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969), although admitting such decision was on point, because it felt compelled to follow the later decision in In re 1979 Lincoln Continental, 405 So.2d 249 (Fla. 3d DCA 1981).

There are several reasons why the applicable forfeiture statute (§§ 932.701-932.-704, Fla.Stat.) should not be construed to mandate forfeiture in every case and deprive the trial court and responsible state officials of all discretion. Construction of the statute must begin with certain time-tested principles of law in mind.

Forfeitures are considered harsh exac-tions and, as a general rule, are not favored; hence, forfeiture statutes must be strictly construed in favor of those against whom the penalty is imposed. General Motors Acceptance Corp. v. State, 152 Fla. 297, 11 So.2d 482 (1943); Hotel and Restaurant Commission v. Sunny Seas No. One, 104 So.2d 570 (Fla.1958); In re 1969 Chevrolet Camaro, 334 So.2d 82 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1103 (Fla.1976); In re 36' Uniflite “Pioneer I, ” 398 So.2d 457 (Fla. 5th DCA 1981); In re Forfeiture of one 1975 Ford, 426 So.2d 44 (Fla. 2d DCA 1983); 39 Fla.Jur.2d, Penalties and Forfeitures, §§ 5, .6. Forfeiture statutes are intended to apply to individuals who are significantly involved in a criminal enterprise or operation. Griffis v. State, 356 So.2d 297 (Fla.1978); In re 1969 Chevrolet Camaro, supra. Accordingly, the statutory provisions that exempt from forfeiture the interests of owners or lien-holders who neither knew nor should have known that the property would be used for illegal purposes. The Florida act, unlike the federal forfeiture act, seeks to protect innocent property owners from forfeiture of their property, even though it may have been used in a specified criminal enterprise. In re 36' Uniflite “Pioneer I, ” supra; One 1973 Cadillac v. State, 372 So.2d 103 (Fla. 2d DCA 1979); Metropolitan Dade County v. Garcia, 375 So.2d 45 (Fla. 3d DCA 1979). The court, as well as the seizing official, has the power to release a seized vehicle to an innocent owner. Metropolitan Dade County v. Garcia, supra.- Cf, In re Forfeiture of Alcoholic Beverages Seized from Saul’s Elks Club, 440 So.2d 65 (Fla. 1st DCA 1983).

Analysis of sections 932.701 through 932.704, in light of these principles, necessarily leads to the conclusion that the ultimate decision to order forfeiture of vehicles after seizure thereunder is discretionary, not mandatory. The predecessor to the present statute, section 943.43, Florida Statutes (1979), provided that if a vehicle has been or is being used for certain described criminal purposes, such vehicle “shall" be seized and “may be forfeited.” This statutory language means “authorizing forfeitures is discretionary, not mandatory.” In re 1969 Chevrolet Camaro, 334 So.2d 82, 83 (Fla. 3d DCA 1976). The operative language of the present forfeiture statute is similar: a motor vehicle which has been or is being used for certain illegal purposes “shall be seized” (§ 932.703(1)); the state attorney “ shall promptly proceed against” such motor vehicle “and may have” such motor vehicle “forfeited” (§ 932.704(1)). A close reading of the language of the present forfeiture statute reveals that the word “shall” is used throughout to mandate certain acts, while the word “may” is used to denote discretionary acts and duties. In each such instance, the use of “shall” requires stated action without the exercise of discretionary judgment by the prosecuting official or the court, while the use of “may” described actions that involve the exercise of discretionary judgment or the selection of one among several alternate courses of action. Just as the juxtaposition of the words “shall” and “may” in section 943.43 was construed to mean that forfeiture is discretionary, the similar use and juxtaposition of these words in sections 932.703 and 932.704 likewise requires the same construction. Therefore, a vehicle used in activities covered by the statute must in all cases be seized, but whether the seized vehicle may ultimately be forfeited to the state or the seizing authority is a matter of discretion left to the prosecutors and the courts.

This conclusion is buttressed by well-established rules of statutory construction recognizing that the word “shall” may be construed to be used in the same sense as “may,” i.e., denoting permissible rather than mandatory conduct, especially when used in prescribing action to be taken by a court and giving the word “mandatory” effect would infringe upon the court’s inherent discretion over remedies to be awarded. Rich v. Ryals, 212 So.2d 641 (Fla.1968). See also, Lomelo v. Mayo, 204 So.2d 550 (Fla. 1st DCA 1967).

Since the Florida forfeiture statute does not deprive a trial court of all discretion to grant or deny such relief, the trial court here erred as a matter of law in holding that it could not consider appellants’ defenses or recognize and give effect to the state attorney’s agreement. The trial court’s construction of the statute, if allowed to stand, would impermissibly permit the legislature to invade the province of the judiciary by depriving the court of authority to exercise its inherent power over the granting of judicial relief. Cf., Rich v. Ryals, 212 So.2d 641 (Fla.1968) (statute using “shall” construed to be permissive because “the Legislature is without authority to mandate a court of equity to issue an injunction” in stated circumstances. Id., at 643). Just as a state attorney has broad discretion to pursue or drop the prosecution of criminal charges against a particular defendant in the quest for the arrest and conviction of the principal actors in the criminal enterprise, so also must the prosecutor have a similar discretion to forego forfeiture if doing so will aid him in that quest. Thus, applying a permissive construction to the forfeiture statute in this case is all the more important because Wayne Smith was induced to assist the state attorney in apprehending and prosecuting the principal criminal actors and to enter into the “Deferred Prosecution” agreement by the prosecuting attorney’s agreement and recommendation on behalf of the state of Florida that the Alachua County Sheriffs office drop the forfeiture proceedings against the Smiths’ pickup truck. Unless the forfeiture statute is given a permissive, rather than mandatory, construction, the state’s representation and agreement with Smith was absolutely meaningless because it was contrary to the law. Obviously, the state attorney believed sufficient discretion existed under the statute to drop the forfeiture proceedings under these circumstances; and since the statute must be so construed, the prosecutor’s agreement can be honored by the courts of this state.

The trial court’s order is also properly reversed for refusing to recognize that Vivian Smith’s interest in the Ford pickup was not subject to forfeiture because she owned the truck as a tenancy by the entire-ties and her interest could not be transferred or alienated by her husband without her consent. The appellee sheriff stipulated with the Smiths that the pickup truck was owned and held by them as tenants by the entireties. Since this case was tried solely on the stipulation of the parties, that matter was not open to dispute, despite the use of the word “or,” rather than “and,” in the Smiths’ vehicle title registration.

Personal property, including a motor vehicle, may be owned jointly by a husband and wife as tenants by the entireties. Roger Dean Chevrolet v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969); Winters v. Parks, 91 So.2d 649, 651 (Fla.1956); 12 Fla.Jur.2d, Cotenancy and Partition, § 13. In Murray v. Sullivan, 376 So.2d 886, 889 (Fla. 1st DCA 1979), this court stated the general rule regarding the incidents of ownership by the entireties:

It is settled law in this state that since an estate by the entireties is vested in husband and wife as one person, neither spouse can sell, forfeit, or encumber any part of the estate without the consent of the other_ (Emphasis added.)

Recognizing an exception to this general rule where one spouse with full knowledge constitutes the other spouse his or her agent, this court further held in Murray:

We hold that before such exception to the general rule is applicable to effectuate a transfer by only one spouse of an estate by the entireties that the evidence must be clear and convincing that such transfer does not (1) adversely affect the interest of the other spouse and (2) is done with the full knowledge, assent and acquiescence of such other spouse.

Id.

Although an estate by the entireties is traditionally created by transferring title to the purchaser as husband and wife as tenants by the entireties if the essential elements of unity of possession, interest, and control are present and the parties are legally married, an estate by the entireties in personal property is created without that traditional language being used so long as the surrounding facts and circumstances show the requisite intent of the parties to create an estate by the entireties. In re Lyons Estate, 90 So.2d 39 (Fla.1956); Winters v. Parks, 91 So.2d 649 (Fla.1956); 12 Fla.Jur.2d, Cotenancy and Partition, § 12. Accordingly, in Roger Dean Chevrolet v. Fischer, supra, the court stated, “The record abounds with extrinsic evidence showing the intent of the husband and wife to own the said automobile as entireties property” even though the vehicle “was registered in the names of J.L. Fischer or Susan G. Fischer”; accordingly, the attempted assignment of title by the signature of Mr. Fischer only, without his wife’s knowledge and consent, was held invalid and Mrs. Fischer was granted re-plevin of the automobile from the assignee dealer. 217 So.2d at 356, 358.

At the time the Smiths acquired and titled their pickup in 1977, they could lawfully use the alternative word “or” in the title description and legally take ownership of the vehicle as tenants by the entireties. Roger Dean Chevrolet, supra, was the highest Florida appellate decision on this question at that time, and under that decision an estate by the entireties could clearly be created by titling the vehicle in the name of “Smith, Vivian L. or Wayne.” In both Winters v. Parks, supra, and In re Lyons Estate, supra, the Supreme Court held that the governing factor was the intent of the parties to create an entire-ties as shown by evidence of all surrounding facts and circumstances; use of the word “or” was not controlling but only evidence to be considered with all other evidence on the issue of intent. Since the appellee sheriff stipulated to the existence of the requisite intent in this case, it was patent error for the trial court not to honor that stipulation.

The trial court explains in support of its order that the legislature amended section 319.22(2), Florida Statutes, in 1979 (Laws of Florida, Ch. 79-333), to provide for the first time that use of the disjunctive word “or” in a motor vehicle certificate of title or registration shall create a joint tenancy with each named owner having “the absolute right to dispose of the title and interest in the vehicle” upon signature endorsement of only one of them and that “this provision shall apply even if the coowners are husband and wife.” But this amendment did not become effective until January 1, 1980. The amendment was not expressly made retroactive to ownership and title registration of motor vehicles acquired prior to its effective date. In the absence of explicit retroactive language, the statute must be given prospective effect only — especially if the effect of retroactive application would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction. Fleeman v. Case, 342 So.2d 815 (Fla.1977); Thayer v. State, 335 So.2d 815 (Fla.1976); Dept. of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla.1977); 30 Fla.Jur., Statutes, § 51.

Vivian Smith perfected a vested right when she acquired the pickup truck in 1977 as a tenancy by the entireties, and that right could not be sold, forfeited, or encumbered without her knowledge and consent. Murray v. Sullivan, supra. Giving retroactive effect to the 1979 amendment of section 319.22(2) so as to permit forfeiture of the truck based on her husband’s activities without her knowledge and consent clearly deprives her of that vested property right. Such a construction and application of the statute cannot be permitted because it would raise serious constitutional issues concerning the deprivation of vested property rights. See, generally, 10 Fla.Jur.2d, Constitutional Law, §§ 289-292, 296.

Nevertheless, the trial court ordered forfeiture of Vivian Smith’s interest based on the general rule that guilty knowledge of a co-owner of the vehicle is sufficient to require forfeiture regardless of the innocence of the other co-owner, citing In re 1979 Lincoln Continental, 405 So.2d 249 (Fla. 3d DCA 1981). But the Lincoln Continental case is inapposite even though the vehicle there involved was titled in the names “Robert Brown or Mae Frances Brown.” The Lincoln Continental opinion does not discuss any claim of ownership by the Browns as tenants by the entireties; rather, Mrs. Brown rested her case solely upon the argument that she was unaware of the criminal purpose for which the automobile was employed. Regarding this contention, the court held:

The trial judge could probably have found that Mrs. Brown’s self-serving, uncorroborated, and highly dubious recounting of the circumstances under which she entrusted the vehicle to her supposedly estranged husband did not carry the affirmative burden, newly imposed upon an owner by the 1980 Florida Contraband Forfeiture Act, to establish that she ‘neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.’

405 So.2d at 250 (footnotes omitted). The court bolstered this conclusion by stating:

Secondly, the prevailing law, with which we agree, is that each of the named parties is deemed the 'owner’ of property titled in the alternative, as was the vehicle in question, so that the undisputed guilty knowledge of Robert Brown is sufficient to justify forfeiture even if the ‘other owner,’ Mrs. Brown, were shown to have been entirely innocent.

405 So.2d at 250. As authority for this statement, the court cited three decisions, one each from Delaware, Texas, and Arizona, without any discussion of Florida law applicable to tenancies by the entireties and without any discussion of whether the forfeiture statutes in the three states followed the federal statute penalizing innocent parties or followed the Florida statute providing for the protection of innocent co-owners. Nor did the court discuss whether the rule of co-ownership should be applied to the exclusion of all prosecutorial discretion or consideration of defenses such as those urged in this case.

Since the appellee sheriff has stipulated to Vivian Smith’s absolute innocence, we are not confronted in this case with the dubious quality of the wife’s profession of innocence that was involved in the Lincoln Continental case. And since the appellee sheriff also stipulated that Vivian Smith owned the vehicle as a tenancy by the entireties, we are not concerned with the rule applicable to a guilty co-owner where no tenancy by the entireties is shown to exist.

Certainly the courts of our state have discretion under the Florida statute to order forfeiture of a contraband vehicle that is truly owned by the guilty party but is titled in another for the purpose of avoiding forfeiture. Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982). The courts have the power to pierce through other contrived arrangements designed to improperly prevent forfeiture of vehicles carrying proscribed contraband. By the same token, however, the courts of this state also have discretion to deny forfeiture where a true owner (the person paying for and principally operating the vehicle) is “innocent” within the meaning of the Florida statute. The intent of the Florida forfeiture statute to protect a true “innocent owner” requires that such discretion be exercised to deny forfeiture in this case.

In summary, the trial court erred in its construction of the forfeiture statute as mandating forfeiture and precluding the court in the exercise of its discretion to deny forfeiture in this case. The judgment of forfeiture must be reversed and the case remanded with directions that the seized vehicle be returned to the appellants.

APPENDIX

“ORDER GRANTING FORFEITURE”

This is a forfeiture proceeding brought by the Sheriff of Alachua County under the provisions of Sec. 932.701 et seq. F.S. against a 1978 Ford Pickup Truck titled of record in the name of ‘Smith Vivian L or Wayne’. Wayne Smith was arrested by the Sheriff and charged with larceny of cattle ‘... and said vehicle, which had been used in hauling the stolen cattle, was seized upon Smith’s arrest.’

The issues raised by the record title owners are:

1. As a matter of equity the Court should not allow a forfeiture here because of:

a. Basic unfairness to Vivian Smith.

b. The State Attorney has deferred prosecution of Wayne Smith for the felony, restitution has been made in full, and the victim is satisfied and doesn’t wish to exact further punishment.

2. The owners are husband and wife, the truck is actually entireties property, and is, therefore, not subject to forfeiture under the rule of Roger Dean Chevrolet, Inc. v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969). The pertinent facts are not in dispute, but the parties disagree as to the applicable law. Both Vivian and Wayne Smith testified that they intended to create an estate by the entireties and that Vivian actually had a greater interest in the property than Wayne because she made more payments on the truck.

The Court is quite sympathetic with the Smiths, but, as we instruct juries, sympathy has no place in a decision such as this. The Legislature by the terms of the forfeiture statutes in question mandate action by the appropriate agency attorney and mandate the decision of the Court when the requirements of the statutes are met. Had the Legislature intended to permit the courts to exercise discretion as to whether contraband would be forfeited, or whose contraband should be forfeited, it could have so stated.

If this Court were bound by Roger Dean Chevrolet, supra, the forfeiture would not lie, but that case was contrary to already established law when it was pronounced by the Fourth District Court of Appeal, and no other Florida appellate court decision has aligned with it. See Winters v. Parks, 91 So.2d 649 (Fla.1956); In re Lyons’ Estate, 90 So.2d 39 (Fla.1956). The enactment by the Legislature in 1979 Chapter 79-333 (now Sec. 319.235 F.S.) relating to the ownership and transfer of title to vehicles only recited correctly what the law on the subject already was, notwithstanding the Roger Dean Chevrolet abberation. While there may be some legitimate dispute between the spouses as to the correct status of the title, as between others, whether good faith purchasers or not, where title to personal property is registered in the mame [sic] of two or more parties in the alternative by using the word ‘or’, as in this case, neither should be permitted to complain when the other transfers or encumbers the title.

More recently and correctly the Third District Court of Appeal addressed this exact question In re Lincoln Continental, etc., 405 So.2d 249 (Fla. 3rd DCA 1981) and stated;

‘... the prevailing law, with which we agree, is that each of the named parties is deemed the “owner” of property titled in the alternative, as was the vehicle in question, so that the undisputed guilty knowledge of Robert Brown is sufficient to justify forfeiture even if the “other owner,” Mrs. Brown, were shown to have been entirely innocent.’ p. 250

Notwithstanding this Court’s disagreement with Roger Dean Chevrolet, supra, I would be bound to follow it, since I must follow decisions of other District Courts of Appeal in the absence of a First District Court of Appeal decision in conflict. Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982). On the same principle, this Court will follow the more recent precedent in In Re Lincoln, supra.

      . The victim’s letter stated:
      On September 20 and 21, 1982, I was the victim of a Grand Theft of three (3) heifers from the Rolling Hills Dairy, Inc., Route 2, Box 23, Archer, Florida, 32618. I wish to commend the Alachua County Sheriff’s Office, and in particular Investigator Daniel Pascuc-ci, for prompt and diligent efforts in assisting me and solving the theft.
      Having made the original Complaint, I will certainly follow through with any and all actions necessary to assist in the prosecution of any and all individuals accused in the theft; however, I also think it appropriate that I inform the Alachua County Sheriff’s Office of my understanding of the particular individual, Wayne Smith, who is also one of the accused co-defendants of the theft.
      It is my understanding that the involvement of Mr. Smith is very minimal, and occurred at the instigation of a co-defendant, Mr. Crawford. Mr. Smith has, to my knowledge, worked very closely with law enforcement in attempting to gather and develop information to try to further solve the crime and locate the cows which were stolen. Mr. Smith has also provided me with complete and full restitution in the amount of $300.00 for the loss of the three heifers at $100.00 per heifer.
      Based on my knowledge and understanding of Mr. Wayne Smith’s background of no priors and his status as a solid, working member of the community, and based upon Mr. Smith’s acceptance of full and complete responsibility and making full and complete restitution on his own, even though his involvement appears to be very minimal, it would be my respectful recommendation that law enforcement not prosecute Mr. Smith any further and that his truck, which has been seized and is currently subject to forfeiture, be returned to him.

      . The full text of the "Order Granting Forfeiture” is copied in the appendix to this opinion.

      . For example, section 932.703 mandates that ’ contraband articles "shall be seized”; all rights, interest, and title thereto "shall immediately vest in the state upon seizure ... subject only to perfection of title rights and interests in accordance with this act”; neither replevin nor any other action to recover the property “shall be maintained” except as provided herein; a motor vehicle in which contraband articles are found “shall be contraband subject to forfeiture"; certain facts “shall be presumed”; "no property shall be forfeited ... if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity”; "no bona fide lienholder's interest shall be forfeited” under certain conditions; and if such conditions are shown “such lienholder’s interest shall be preserved by the court.”
      Section 932.704 mandates that the state attorney "shall" promptly proceed against contraband articles, etc.; any final order of forfeiture entered by the court "shall" perfect the state's right and interest in and title to the forfeited property which "shall" relate back to the date of seizure; the state attorney "shall give notice of the forfeiture proceedings”; "shall” publish notice, which notice "shall” be mailed and published. according to certain time schedule, and "shall” describe the property, etc.; the seizing agency "shall be obligated” to diligently search for the owner, etc.; if the property is to be sold after forfeiture, the head of the law enforcement agency “shall" cause notice of sale to be made; and the proceeds thereof “shall” be applied and deposited as stated in the statute; upon such sale, the state "shall ” issue title certificates; and certain reports "shall" be kept and submitted.

      . For example, section 932.704 uses the word "may" to de'scribe the following obviously discretionary acts: The state attorney, "or such attorney as may be employed by the seizing agency,” shall promptly proceed "against the contraband article,” etc.; such attorney “may have such contraband article" or motor vehicle "forfeited to the use of” the seizing agency; the state attorney, or "such attorney as may be employed” shall give notice of forfeiture; in lieu of sale of forfeited property, the agency head, "whenever he deems it necessary or expedient, may salvage the property,” etc.; the proceeds of any sale of forfeited property shall be deposited in a certain fund which "may be expended only upon appropriation” by certain bodies for described purposes (obviously intending that all such funds are not mandated to be expended).


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Henry LAMBERT and School Board of Marion County, Florida, Appellants, v. H. Leon ROGERS, etc.; Carole Parrish, etc.; Lamar Luffman, J.L. Collum, Nathan Gilman and James Ergle constituting the School Board of the Marion County School District, Appellees.
    No. 83-686.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.

      Steven H. Gray, of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellant Henry Lambert.
    Gary C. Simons, of Savage, Krim, Si-mons, Fuller & Ackerman, P.A., Ocala, for appellant School Board of Marion County, Florida.
    Wayne C. McCall, of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appel-lee H. Leon Rogers, as Superintendent of the Marion County School Dist.
    No Appearance for appellees, Carole Parrish, Lamar Luffman, J.L. Collum, Nathan Gilman and James Ergle.
   SHARP, Judge.

Lambert, a principal in the Marion County School District, and the Marion County School Board (School Board), appeal from a non-final order of the circuit court which enjoined them from conducting a hearing pursuant to section 120.565, Florida Statutes (1983), to determine whether Lambert had a one or a three year contract of employment with the School Board. Rogers, the elected superintendent of the school district, filed the suit pursuant to the Declaratory Judgments Act, Chapter 86, Florida Statutes (1983), seeking to halt the administrative hearing because he claims the School Board lacks jurisdiction to determine Lambert’s employment status. We disagree and quash the injunction.

In April of 1979, Lambert was employed by the School Board as a principal of Vanguard High School in Ocala, Florida, for a three year term. The Board acted on a group of other three year contracts at the time Lambert’s was approved. They were all expressly stated as being for a three year term, although apparently Lambert was reappointed annually during each of the three years of the term of the first contract.

However, in April of 1982, when a group of contracts including Lambert’s were approved by the School Board, there was no express notation as to their length of terms. In January of 1983, Rogers gave Lambert a written one year contract and in February he notified Lambert that he would not recommend Lambert for reappointment after June of 1983.

Lambert took the position that he had been employed for a three year term and that he could not be terminated by the School Board unless it proceeded to dismiss him for cause after a- hearing pursuant to sections 231.36(1) and (6), Florida Statutes (1983). He filed a petition for declaratory statement and requested a hearing under section 120.57, Florida Statutes (1983), to determine his rights under his contract of employment. In essence, Lambert requested a statement as to whether the School Board’s rules regarding termination of employment during the term of the contract apply, or whether the rules regarding non-renewal of expiring contracts apply. The School Board published a notice of petition for declaratory statement and hearing on March 18, 1983, setting the hearing date for April 5, 1983.

Rather than seeking to intervene in the administrative proceeding, Rogers sought to have it halted so that the question of Lambert’s contract status would be determined by the circuit court rather than by the School Board. No testimony was taken prior to issuance of the injunction. Rogers merely argued that the question posed to the School Board was one of law and beyond its jurisdiction to decide, and that irreparable harm would occur if he recommended another principal to replace Lambert as he was legally required to do under section 230.23(5)(a), Florida Statutes (1983). The replacement or his recommendation could create rights to the position for which there might be duplicate liability.

We question whether this record is sufficient to justify the issuance of an injunction. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946); Swenson v. Lofton, Case No. 83-2517 (Fla. 2d DCA May 25,1984) [1984 F.L.W. 1165]; Department of Professional Regulation v. Fernandez-Lopez, 407 So.2d 286 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981) (Irreparable harm was not shown by bare pleading and mere liability for damages was not a cause for an injunction.) But beyond that, we think the circuit court improperly halted an administrative proceeding that was expeditiously headed toward resolving the issues between the parties. Before any court can conclude that the School Board will exceed its powers by offering Lambert a contract without the superintendent’s initial recommendation, under section 230.-23(5)(a), the initial question of the length of Lambert’s contract with the School Board must be answered. Until the administrative procedure is complete, it is prematurely brought for resolution or appeal to the courts. Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980).

If the School Board decides this is a one year contract, the court should not assume it will act without Rogers’ recommendation. If it decides it is a three year contract, then Rogers may accept that determination and not recommend a successor or he may appeal the agency’s action.

Generally, where adequate administrative remedies are available, it is improper to seek relief in the circuit court. Absent some extraordinary circumstances, when an administrative proceeding is already pending involving the same issues brought to the circuit court in a declaratory judgment action, and the administrative procedures are adequate to resolve the dispute, the court should not intervene. Griffin v. St. Johns River Water Management District, 409 So.2d 208 (Fla. 5th DCA 1982); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978).

The record in this case establishes no exception to the general rule. Gulf Pines Memorial Park, Inc. v. Oak Lawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); Communities Financial Corporation v. Florida Department of Environmental Regulation, 416 So.2d 813 (Fla. 1st DCA 1982). We do not find the School Board lacks general authority to answer the question posed to it by Lambert; nor does the Administrative Procedure Act fail to provide a remedy which is adequate and timely; nor has the School Board embarked on a patently unconstitutional course of conduct, pursuant to an unconstitutional rule or statute. See Junco v. State Board of Accountancy, 390 So.2d 329 (Fla.1980).

Accordingly, we quash the injunction and remand with directions to dismiss the declaratory action.

REVERSED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . The School Board has adopted rule 6GX42-1.-34, which formulates procedures for handling requests for declaratory statements, as prescribed by the APA. Lambert complied with all of the requirements of the rule.

      . We think rule 28-5.207 of the Florida Administrative Code gives the superintendent the right to intervene in these proceedings. It provides: “Persons other than the original parties to a pending proceeding who have a substantial interest in the proceedings, and who desire to become parties may petition the presiding officer for leave to intervene.” Although the School Board’s Rule 6GX42.134(2) does not provide for intervention, we think model rule 28-5.207 continues to compliment the School Board’s rule where, as in this case, it has not adopted a comprehensive set of procedural rules.

      . See Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977).

      . §§ 120.52(1 l)(c) & .68(1), Fla.Stat. (1983); see Greene v. School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984).

      . Communities Fin. Corp. v. Florida Dep't of Envtl. Regulation, 416 So.2d 813 (Fla. 1st DCA 1982); State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). The determination of whether a particular controversy should be decided by the circuit court or by the administrative agency, is in essence, not a question of power and jurisdiction, but rather one of policy. Gulf Pines Memorial Park, Inc. v. Oak Lawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978).

      . State Dep't of Envtl. Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982).

      . Department of Transp. v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); Willis.

        .See Department of Professional Regulation v. Fernandez-Lopez, 407 So.2d 286 (Fla. 3d DCA 1981); Metropolitan Dade County v. Dep’t of Commerce, 365 So.2d 432 (Fla. 3d DCA 1978).


author: DAUKSCH, Judge. COWART, Judge,

text:
    James O. O'BRIEN, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1087.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Rehearing Denied Aug. 23, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from convictions for conspiracy to Traffic in Cannabis, Trafficking in Cannabis and Unlawful Possession of a Firearm during the Commission of a Felony.

Appellant has raised four points on appeal. We shall quote and discuss each in order. We have no comment regarding the writings in the special concurrence, except to say that nothing even close to what may be the point in the special concurrence was raised by the parties or briefed. No special concurrence is of precedential value, especially where it is not on the subject matter of the appeal.

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING ALL OF THE DEFENDANT’S WITNESSES FROM TESTIFYING, WITHOUT MAKING AN ADEQUATE INQUIRY INTO WHETHER THE DEFENDANT’S TARDY COMPLIANCE WITH THE RULE GOVERNING AN EXCHANGE OF WITNESS LISTS WAS A SUBSTANTIAL VIOLATION WHICH RESULTED IN HARM OR PREJUDICE TO THE STATE.

Appellant’s trial counsel failed to comply with Florida Rule of Criminal Procedure 3.220(b)(3) because he did not timely file a list of defense witnesses within seven days of receipt of the state’s list of witnesses. Defense counsel should be discouraged from doing that. Under appropriate circumstances sanctions should also be imposed against defense counsel, or even the defendant in some cases. Here the trial judge excluded all defense witnesses from giving testimony. Although it is within the judge’s discretion to exclude witnesses that most extreme sanction should never be imposed except in the most extreme eases, such as when purposeful, prejudicial and with intent to thwart justice. Anderson v. State, 314 So.2d 803 (Fla. 3d DCA 1975); Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972); Kruglak v. State, 300 So.2d 315 (Fla. 3d DCA 1974); Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982). No sanction should be imposed, least of all the most extreme, without an adequate hearing to determine the cause and effect of the failure to disclose. Richardson v. State, 246 So.2d 771 (Fla.1971); Neimeyer v. State, 378 So.2d 818 (Fla. 2d DCA 1979); Bradford v. State, 278 So.2d 624 (Fla.1973); Briseno v. State, 449 So.2d 312 (Fla. 5th DCA 1984). Because the trial judge failed to conduct an adequate Richardson hearing we reverse the convictions and remand this matter for a new trial. For further guidance, we have examined the record and can see there was not enough prejudice to the state for the judge to have excluded the witnesses in this case. The witnesses were disclosed before trial and there is some indication the state was aware of them in quite sufficient time to prepare for them.

POINT II

THE TRIAL COURT ERRED IN IMPOSING JUDGMENT AND SENTENCE FOLLOWING THE JURY’S RETURN OF A GUILTY VERDICT FOR A NON-EXISTENT CRIME.

It was alleged the defendant “conspire^) ... with another person or persons.” The jury was instructed that should it find that appellant conspired with one Mike Imperial then he was guilty of the conspiracy count. This cannot be so because Mike Imperial was the police officer in the case who was acting in the discharge of his duty. One cannot conspire alone, obviously, and because the policeman was not really a part of a conspiracy (a combination of persons to accomplish an illegal purpose) but was trying to catch drug purchasers, appellant was alone in his illegal pursuit. King v. State, 104 So.2d 730 (Fla.1958). We reverse this conviction.

POINT III

THE TRIAL COURT ERRED IN APPLYING THE THREE (3) YEAR MANDATORY MINIMUM PROVISIONS OF SECTION 775.087(2), FLORIDA STATUTES (1981) TO THE DEFENDANT’S SENTENCE FOR UNLAWFUL POSSESSION OF A FIREARM DURING A FELONY.

Section 775.087(2), Florida Statutes (1981) provides that any person who is convicted of certain listed felonies should be sentenced to a mandatory three years in prison. Unlawful possession of a firearm is not one of them. Should appellant be convicted again he should be sentenced accordingly.

POINT IV

THE TRIAL COURT ERRED IN IMPOSING CUMULATIVE THREE-YEAR MANDATORY MINIMUM SENTENCES. '

Appellant is correct. See Palmer v. State, 438 So.2d 1 (Fla.1983).

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Sometimes a criminal felony offense is such that one of its elements requires the existence of another separate felony offense. The required felony is commonly called the background or “underlying offense” or “underlying felony” to distinguish it from the felony offense requiring it. Some such offenses requiring by their definitions the existence of another “underlying” felony offense are the felony murder offenses described in section 782.-04(l)(a)2. and (3) and (4), Florida Statutes, and the weapon and firearm offenses described in sections 790.07(1) and (2), Florida Statutes.

In State v. Pinder, 375 So.2d 836 (Fla.1979), the supreme court followed Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and other federal cases construing the federal double jeopardy clause and held that since proof of the underlying felony was indispensable to proof of a felony murder the two offenses were in substance “the same offense” within the meaning of the double jeopardy clause and, therefore, a defendant could not constitutionally be convicted and punished for both the felony murder and the underlying felony. In Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), this court recently followed Pinder. Also see Enriquez v. State, 449 So.2d 845 (Fla. 3d DCA 1984).

Appellant was convicted of the firearm offense (a violation of § 790.07(2), Fla. Stat.) and of the “underlying felony” (trafficking in cannabis in violation of § 893.-135(l)(a)l, Fla.Stat.). An alternative disposition of appellant’s point four on appeal would result from a finding of fundamental error in the trial and conviction for both of these offenses if they are in substance “the same offense” within the meaning of the constitutional double jeopardy clauses.

In State v. Gibson, 452 So.2d 553 (Fla.1984), the supreme court held that a defendant could be convicted and punished for both the firearm offense (§ 790.07(2), Fla.Stat.) and the underlying felony. In footnote 6 in Gibson the supreme court observed that the recent amendment of section 775.021(4), Florida Statutes, specifically adopted the Blockburger rule as the test for determining whether statutory offenses with common constituent elements are separate offenses (authorizing separate prosecutions, trials, convictions and sentences) or “the same offense” within the constitutional double jeopardy prohibition against being twice placed in jeopardy for “the same offense.” As noted in that footnote and the following footnote, the amendment made it clear that the legislature intended that section 775.021(4), Florida Statutes, be construed to be in align with the Blockbur-ger construction of the constitutional double jeopardy clauses. Also, as noted in footnote 6 in Gibson, this view ratifies the constitutional construction of the double jeopardy cases holding that felony murder and the underlying felony are “the same offense” within the contemplation of the double jeopardy prohibition because the essential constituent elements of the underlying felony are wholly included within the essential elements of the felony murder. See State v. Pinder, supra, and Snowden v. State, supra.

One of the issues in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), quashed, 456 So.2d 419 (Fla.1984), was the double jeopardy question relating to the constitutionality of a conviction for the offense of use of a firearm in commission of a felony (firearms offense) (§ 790.07(2), Fla.Stat.) and also a conviction for its underlying felony. There were three possible views in Baker, only one of which can be correct. The majority in Baker followed its interpretation of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), and held that Baker could be convicted of both the firearm offense (§ 790.07(2), Fla.Stat.) and the underlying felony but could be sentenced for but one offense (this is, in effect, also the holding in Marshall v. State, 413 So.2d 872 (Fla. 3d DCA 1982), and Burke v. State, 415 So.2d 753 (Fla. 3d DCA 1982)). The dissent in Baker agreed that Baker could be constitutionally convicted of both offenses but argued Baker could also be sentenced for both offenses under the legislative intent embodied in section 775.021(4), Florida Statutes. Before the supreme court holding to the contrary announced in Gibson, in this case the writer would have suggested that there was error in application of theory to the specific case in the view of the dissent in Baker v. State (page 62, Part III, 1112), and that both the majority and dissent in Baker were in error and that the third alternative in Baker, and the correct view, was that when a “main” offense requires the commission of an underlying felony (as in felony murder and in the weapon and firearm offense (§§ 790.07(1) and (2), Fla.Stat.), then the main offense necessarily includes, as an essential constituent composite or “group” element, all of the essential constituent elements of the “underlying” offense, and those two offenses are in legal substance and constitutional contemplation, “the same offense” and that the double jeopardy clauses of the state and federal constitutions prohibit a person from being put in jeopardy (i.e., from being charged, tried, convicted or sentenced) for both such offenses. See Bell v. State, 437 So.2d 1057 (Fla.1983). This view and the fact that the statutory firearm offense (§ 790.07(2), Fla.Stat.) necessarily always includes all of the essential elements of the essential underlying felony which was committed, or attempted, by use of the firearm, appears to be the proper conceptual basis for the recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits convictions of the firearm offense (§ 790.07(2), Fla.Stat.) and its underlying felony, see Jackson v. State, 436 So.2d 1101 (Fla. 4th DCA 1983); Bogard v. State, 451 So.2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So.2d 677 (Fla. 4th DCA 1984). If by Gibson the Florida Supreme Court has foreclosed its consideration of the problem, then it is perhaps too late, but to be consistent with the rationale of Blockburger, Pinder and Bell, and with the ancient traditional judicial construction of the double jeopardy clause, the supreme court should have approved Jackson, Bo-gará and Alvarez and disapproved Baker, Marshall and Burke and held that under constitutional double jeopardy as well as under section 775.021(4), Florida Statutes, as amended, a person could not be charged, prosecuted, tried, convicted or punished for both the statutory firearm offense (§ 790.-072, Fla.Stat.) and its underlying felony. The practical difficulties with such a constitutional holding can be easily overcome by the legislature by statutes, such as section 775.087, Florida Statutes, which merely enhance the punishment for any (underlying) felony committed or attempted by use of a firearm, rather than by attempting to make the extra factual elements relating to the use of a firearm in commission of the (underlying) felony a separate offense from the (underlying) felony as is done by section 790.07, Florida Statutes. The double jeopardy clauses are concerned with the evil of multiple exposures to the jeopardy involved in criminal charges, prosecutions, trials, convictions and sentences as to two criminal charges which are, in substance one and “the same offense.” However, the double jeopardy clauses are not concerned with the amount or degree of punishment that the legislature may permit or require to be imposed after conviction for one offense for which a person has been put in jeopardy but once.

Because of the holding in Gibson I reluctantly concur with the result in this case.

      . See, e.g., Platt v. State, 449 So.2d 891 (Fla. 2d DCA 1984).

      . The effect of this alignment is that if a defendant can be constitutionally tried for an offense because such offense is substantively different from some other similar or related offense (as determined by the so-called Blockburger test), then section 775.021(4), Florida Statutes, mandates that a sentence be imposed upon a conviction for such offense. If the alignment and construction of the statute and the constitution is true and correct, the converse of this proposition must also be true and correct, i.e., if a defendant cannot be sentenced under section 775.021(4), Florida Statutes, for an offense, then he cannot be constitutionally convicted for that offense. Obviously also if a defendant cannot be constitutionally tried and convicted for an offense he cannot be lawfully sentenced for that offense. The supreme court in Bell v. State, 437 So.2d 1057 (Fla.1983), seemed to recognize that it was untenable to hold (as some had construed Hegstrom, infra, to hold) that a defendant could be constitutionally tried and convicted for an offense but could not be legally sentenced for committing it.

      . See 425 So.2d 36 at 62 n. 46, conceding the plausibility of the view that the whole underlying felony is one composite element of the firearm offense (§ 790.07(2), Fla.Stat.) which causes the underlying felony to be, in substance, a true lesser included offense of the firearm offense and causes double jeopardy to bar prosecutions for both offenses.


author: PER CURIAM.

text:
    Thomas J. GRADY, Bishop of the Diocese of Orlando, his Successors in Office and Assigns, a Corporation Sole, Appellant, v. B.B. McCORMICK ROOFING COMPANY, a Florida Corporation, and G.A.F. Corporation, a Foreign Corporation, Appellees.
    No. 83-1457.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Rehearing Denied Aug. 22, 1984.
    John M. McCormick and C. Andrew Coomes, Orlando, for appellant.
    William Trickel, Jr., of Ober, Kaler, Grimes & Shriver, Orlando and Roann Nichols of Ober, Kaler, Grimes & Shriver, Baltimore, Md., for appellee G.A.F. Corp.
    Michael D. Jones, Winter Springs, for appellee, B.B. McCormick Roofing Co.
   PER CURIAM.

AFFIRMED.

See Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983).

COBB, C.J., FRANK D. UPCHURCH and SHARP, JJ., concur.


text:
    Juan ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-582, 83-583.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Rehearing Denied Sept. 10, 1984.
    Hutner & Abramson and Stuart Abram-son, Coral Gables, and Bennet Lapidus, Miami, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Having carefully considered the record in this consolidated criminal appeal, the briefs, and the arguments of counsel, we conclude that the errors raised as issues on appeal are either harmless errors, United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Drake v. State, 441 So.2d 1079 (Fla.1983); Palmes v. State, 397 So.2d 648 (Fla.1981), or were not preserved for appellate review by contemporaneous objection below. Sims v. State, 444 So.2d 922 (Fla.1983); Wilson v. State, 436 So.2d 908 (Fla.1983); Steinhorst v. State, 412 So.2d 332 (Fla.1982).

Affirmed.


text:
    James E. SIMMONS, Sr., as Personal Representative of the Estate of Ella G. Simmons, deceased, Appellant, v. BAPTIST HOSPITAL OF MIAMI, INC., et al., Appellees.
    No. 83-937.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Rehearing Denied Sept. 7, 1984.
    High, Stack, Lazenby, Palahach & Laca-sa and Philip J. Cole and Charles Stack, Coral Gables, for appellant.
    Joe N. Unger, Thompson, Parenti & Falk, Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered upon a jury verdict for the defendants in a medical malpractice case. The plaintiff contends on appeal that he was denied the substance of a fair trial when the trial court permitted defense counsel, over proper objection, to cross examine two of his essential medical witnesses so as to elicit (1) that one such witness’ medical offices had suffered a fire, that the witness had filed suit against his insurance company to collect on his fire loss, and that the insurer was defending the case on the basis that an arson had been perpetrated; and (2) that the other witness, in a deposition taken in an unrelated case which was not contradictory to any of his trial testimony, had attempted to justify his failure to pass the Florida medical examination by stating that eighty percent of those who took the medical exam when he did were foreign-born, “brown skinned people,” who had crammed six months for the exam, when he had no such time to devote to such study. We entirely agree and reverse for a new trial.

First, the claimed errors were properly preserved for appellate review. The plaintiff strenuously objected to the offending questions both on specific grounds and on grounds which were apparent from the context in which they were made. See § 90.104(l)(a),'Fla.Stat. (1983); moreover, after the trial court ovérruled plaintiff’s objections thereto, it was unnecessary to move for a mistrial. See Simpson v. State, 418 So.2d 984, 986 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Bullard v. State, 436 So.2d 962, 963 (Fla. 3d DCA 1983), pet. for review denied, 446 So.2d 100 (Fla.1984). Second, the probative value of the evidence, even if marginally relevant, was entirely outweighed by its unfairly prejudicial character; moreover the evidence did not constitute proper impeachment and should not have been admitted below. See Hitchcock v. State, 413 So.2d 741, 744 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982); Gelabert v. State, 407 So.2d 1007, 1010-11 (Fla. 5th DCA 1981); Schwab v. Tolley, 345 So.2d 747, 754 (Fla. 4th DCA 1977); §§ 90.403, 90.609, 90.610, 90.614, Fla.Stat. (1983). Third, the admission of this evidence greatly prejudiced the plaintiff as it inferred that one of its crucial medical witnesses was a possible arsonist of his own medical office, and that another of its crucial medical witnesses was a disgruntled racist who blamed his failure to pass the Florida medical exam on overly-ambitious “brown-skinned” foreigners who had more time than he did to study for the exam. We think these unfair character assassinations could have done nothing but inflame the jury against these witnesses, who were so essential to the plaintiff’s case, and in so doing, denied the plaintiff the substance of a fair trial below. See Charlotte Harbor & N. Ry. Co. v. Truette, 81 Fla. 152, 159, 87 So. 427, 429 (1921) (syllabus by court, no. 3); Jenkins v. State, 177 So.2d 756, 757 (Fla. 3d DCA 1965). Moreover, we are persuaded that the belated curative instruction as to the arson reference, apparently agreed to by both parties and given the day after the offending testimony was elicited, neither cured the sinister nature of the error complained of nor constituted a waiver of the error by the plaintiff. See Carls Markets, Inc. v. Meyer, 69 So.2d 789, 794 (Fla.1953); Perper v. Edell, 44 So.2d 78, 80 (Fla.1949); Dade County v. Clarson, 240 So.2d 828, 829 (Fla. 3d DCA 1970).

The judgment under review is reversed and the cause is remanded for a new trial.


text:
    Michael TUPICA and Nina Uglinica, Appellants, v. John MACINA, Appellee.
    No. 83-2622.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Rehearing Denied Sept. 18, 1984.

      Philip J. Padovano, Tallahassee, and Richard B. Mateer of Richard B. Mateer, P.A., Boca Raton, for appellants.
    Gary R. Gromet, Fort Lauderdale, for appellee.
   PER CURIAM.

Upon review of the record we believe that there is an adequate evidentiary basis to support the trial court’s judgment can-celling a warranty deed executed by the appellee in favor of the appellants. We also reject appellants’ claim that the trial court erred in failing to reform the terms of the deed, there having been no claim for reformation made by any of the parties in the trial court.

ANSTEAD, C.J., HURLEY, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: NIMMONS, Judge.

text:
    Newell Jerome GRIFFITH, M.D., Appellant, v. BOARD OF MEDICAL EXAMINERS, Appellee.
    Nos. AW-265, AY-219.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1984.
    Paul Watson Lambert of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.
    Jim Smith, Atty. Gen.; and John E. Griffin and Susan Tully, Asst. Attys. Gen., for appellee.
   NIMMONS, Judge.

Appellant, whose license to practice medicine had previously been revoked, sought reinstatement of his license from the Board of Medical Examiners (the “Board”). He appeals from the Board’s order entered October 31, 1983, denying his petition for reinstatement and the Board’s declaratory statement entered February 22, 1984. The appeals from those two orders have been consolidated.

Dr. Griffith’s license was revoked by the Board by final order entered in October, 1982. The Board had previously suspended his privilege to prescribe Schedule II controlled substances until he completed a 50 hour course in pharmacology. The revocation was based upon his prescribing Schedule II drugs during the period of such suspension. Griffith appealed the revocation to the Second District Court of Appeal which affirmed the order per curiam in May, 1983.

Although the revocation order contained nothing to indicate that Griffith could petition for reinstatement of his license, the Board readily admits that it has routinely followed the practice of considering petitions for reinstatement of revoked licenses. The Board says that it ceased following that practice with respect to licenses revoked after June 5,1983, but acknowledges that Griffith’s revoked license was subject to reinstatement since the revocation occurred prior to June 5, 1983, the date of the Board’s June meeting.

On January 31. 1983, Griffith filed a “motion for leave to file a petition for reinstatement.” The Board entered an order on March 3, 1983, denying the motion on the grounds that Griffith “is not an appropriate candidate for reinstatement at this time.” Thereafter, Griffith filed, on May 16, 1983, another petition for reinstatement which was denied by an order which stated that his “petition is premature and that his proposed plan for reinstatement is severely deficient” and that he had “failed to demonstrate to the Board’s satisfaction that he is now capable of practicing medicine with reasonable skill and safety as required by Section 458.331(3), Florida Statutes.”

In July, 1983, Griffith filed with the Board a petition for declaratory statement pursuant to Section 120.565, Florida Statutes, in which he sought a statement of the criteria by which a petition for reinstatement would be evaluated by the Board and the criteria for the determination of when Dr. Griffith’s petition for reinstatement would be regarded as “mature” for consideration. Griffith also filed on September 20, 1983, another petition for reinstatement.

At the Board’s next meeting on October 8, 1983, the Board denied the petition for reinstatement. The order denying the petition, which order is one of the two orders appealed herein, recited in relevant part:

Ordered and adjudged that the request be denied on the grounds that it is premature. * * * Without addressing the issue of whether [Griffith] has presented a plan for reinstatement that would comply with the requirements of Section 458.331(3), Florida Statutes, the Board again reiterates that it considers respondent’s request to be premature.

Following the denial of the reinstatement petition, the Board, at the same meeting, took up the petition for declaratory statement. Counsel for Griffith explained that he was seeking a statement addressing the question as to when the Board would consider his client’s reinstatement petition ripe for consideration and a statement setting forth the criteria which would govern the Board’s determination of Griffith’s petition on the merits so that he would know when and how to present Griffith’s case for reinstatement. The Board chairman then purported to explain the criteria followed by the Board. He acknowledged that Griffith fell within that category of “revokees” who would be eligible for reinstatement consideration, his license having been revoked prior to June 5, 1983. The chairman also stated that Griffith’s petition would be regarded as “mature” when he could prove the criteria contained in Section 458.331(3), Florida Statutes. That section provides:

(3) The board shall not reinstate the license of a physician, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.

When Griffith’s counsel pressed for a clarification as to when the Board would regard a petition for reinstatement mature for consideration, the chairman responded, “The passage of time does wonders for these things.”

Eventually, on February 22, 1984, the Board issued a declaratory statement, the second order appealed in this consolidated appeal. The Board’s February 22 order found that Griffith was entitled to a declaratory statement pursuant to Section 120.-565, Florida Statutes. The order stated that licenses revoked before the June, 1983, Board meeting “would be subject to reinstatement due to the past policy of the Board.” But, the Board stated some individuals whose licenses were revoked prior to June, 1983, “will never be reinstated because of the nature of their offense.” The order states that the criteria governing reinstatement petitions are those set forth in Section 458.331(3), supra, and “the nature of the violation which led to the revocation.” Further, the order states that the petitioner’s reinstatement petition will be considered as mature when the petitioner “can satisfy the requirement of Section 458.331(3), and when he can demonstrate to the Board’s satisfaction that his medical judgment, as evidenced by his history of misconduct, has improved such that it is unlikely that he will again violate the Medical Practice Act and the rules or orders of the Board.”

In Katz v. Florida State Board of Medical Examiners, 405 So.2d 465 (Fla. 1st DCA 1981), this court rejected Katz’s argument that Section 458.331(4), Florida Statutes, required Katz’s reinstatement because of the failure of the agency to develop guidelines for the reissuance of a license. However, we further held:

Second, appellant contends the order of the Board is inadequate in that it fails to set forth sufficient findings of fact or conclusions of law. We agree. The order is totally deficient in findings of fact or statements of policy supporting the denial of the reissuance of this license. An agency which has opted not to establish guidelines for a particular proceeding is required to make specific findings of fact and state the policy reasons supporting the agency action.

Id. at 466.

It is apparent, particularly from the first order appealed, (the October 31, 1983, order) that Griffith’s reinstatement petition was denied because the Board did not regard it as being mature or ripe for consideration. Its order clearly shows that the petition was denied because it was premature, the order further expressly stating that the Board declined to address the issue of whether Dr. Griffith’s petition for reinstatement met the criteria of Section 458.331(3).

From the proceedings below, it is apparent that the Board has determined that petitions for reinstatement regarded as “premature” will be rejected without consideration on the merits. The problem is that it is impossible for a person to tell, in the absence of agency guidelines, when such a petition is to be considered ripe for determination on the merits. During the colloquy between the Board’s chairman and Dr. Griffith’s attorney regarding when a petition for reinstatement would be regarded as mature for consideration, the chairman stated:

[H]is petition may be mature at a certain point, but we don’t feel that the passage of time has been such that that situation is different enough that Dr. Newell Griffith has matured or has done anything that has proved to us that his petition has matured at this time. I don’t know whether it is—I don’t know what you can do, but you are creative enough, and you are smart enough and more experienced than almost any other attorney in this area in the state, that I am sure you can come up with something.

If the agency is to reject petitions for reinstatement because they are not mature or ripe for consideration, the agency will have to articulate policy guidelines such that one may reasonably know when he might expect to have the Board consider his petition on the merits. Neither of the appealed orders is sufficient in this respect.

Our opinion should not be interpreted as requiring the Board to entertain petitions for reinstatement of licenses revoked after the June 5, 1983, Board meeting. We deal in the instant case with a class of revoked licensees who, by established policy of the Board, are entitled to present petitions for reinstatement.

Further, except for the above referred deficiency on the “maturity” issue, we are of the view that the Board’s criteria (as articulated in its declaratory statement) for consideration of reinstatement petitions on the merits are not legally deficient. In summary, such criteria include: (1) whether the terms and conditions set forth in the revocation order have been satisfied; (2) whether the petitioner is capable of safely engaging in the practice of medicine; (3) whether the violation which led to revocation shows such a lack of judgment on petitioner’s part that it is likely he will again violate Chapters 455 and 458, Florida Statutes, or the rules of the Board; and (4) whether petitioner's judgment has improved since revocation.

Finally, nothing we have said should be construed to preclude the Board from considering as a factor on the merits of the reinstatement petition the period of time which has passed since the license was revoked.

Reversed and remanded for further proceedings consistent with this opinion.

THOMPSON and BARFIELD, JJ., concur.

      . At the meeting, the Board’s counsel simply summarized for the Board members the history of the administrative proceedings involving Griffith after which the Board voted to deny the reinstatement petition. Although Griffith and his attorney were present, they were not heard with respect to the reinstatement petition.

      . Section 458.331(4), Florida Statutes (1981), provides:
      "The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license.”

      . As previously noted, the revocation order in the instant case had no express conditions which Griffith was required to satisfy.


author: MILLS, Judge.

text:
    Roger Lee BOGAN, Appellant, v. STATE of Florida, Appellee.
    No. AW-13.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    Rehearing Denied Sept. 1, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Roger Lee Bogan appeals from the imposition of sentence after his probation was revoked. Bogan argues on appeal that the sentencing court did not provide a “clear and convincing reason” for its departure from the sentencing guidelines under which he had elected to be sentenced. We affirm.

Bogan pled guilty to aggravated assault and opposing an on-duty officer with violence, both third-degree felonies, on 29 March 1975. He did not appear for sentencing and was not apprehended until 25 May 1981. Bogan thereafter received two concurrent five-year terms of probation, which were revoked on 13 October 1983 based on the violation by him of several conditions of the probation. Bogan was sentenced on the same date, based primarily on a sentencing guidelines scoresheet. See Rule 3.701(d), Fla.R.Crim.P. The primary offense at conviction was stated to be “aggravated battery,” a second-degree felony at the time of sentencing and Bogan was therefore assigned 105 points in this category. His total score was 134 points, which correlates to the recommended sentence range of “community control or 12-30 months incarceration.” The sentencing court determined to depart from this recommendation, stating the following written reasons therefor:

Probation or any nonstate sanction is recommended by the Probation Officer, in its Pre-Sentence Investigation report following the sentencing guidelines. However, probation officials candidly recommend a departure from the sentencing guidelines for Mr. Bogan due to the fact he has indicated by his behavior and attitude that he will not cooperate with probation officials or respond to probation supervision. With this the court agrees. Even a cursory glance of the defendant’s past records indicates he has grossly abused the privilege of probation granted to him by the court. In placing a defendant on probation, the court is saying that justice and welfare of society does not require the defendant to suffer the full punishment of the law; but when such privilege is given, and the beneficiary of same grossly abuses it, then harsher sanctions, at least, are absolutely necessary.

The court thereupon sentenced Bogan to four years imprisonment on the aggravated battery charge, with a consecutive four-year term of probation on the charge of opposing the officer with violence.

Bogan argues that the court’s reasons for departure from the guidelines were not “clear and convincing” as required by Rule 3.701(d)(ll), Fla.R.Crim.P. First of all, his probation officer had not recommended “probation or any nonstate sanction” as stated by the court, but rather a brief period of incarceration followed by a period of probation. Further, the reason that he “has indicated by his behavior and attitude that he will not cooperate with probation officials or respond to probation supervision” does not reach the level of “clear and convincing.” Bogan asks the court to compare the Minnesota sentencing guidelines which, similarly to Florida’s, require “substantial and compelling” reasons to justify departure. The Supreme Court of that state has held that nonamenability to probation does not justify departure from the guidelines. See State v. Barnes, 313 N.W.2d 1 (Minn.1981).

Bogan also points out that he was incorrectly scored for aggravated battery, a second-degree felony, instead of aggravated assault, a third-degree felony, resulting in the assignment of a score of 105 points for primary offense rather than 73 points in that category. This in turn caused determination of the incorrect sentence range, the correct range being “any nonstate prison sanction.” Bogan concludes by arguing that even should this court find the reasons for departure to be “clear and convincing,” the departure herein was excessive.

We agree that the sentencing court erred in placing any reliance on the alleged recommendation of Bogan’s probation officer that a term of probation be imposed, as the record clearly reflects that no such recommendation was made. It is also apparent that Bogan is correct in his contention that his scoresheet was improperly prepared. Whether the primary offense of conviction was aggravated assault or aggravated battery, both were third-degree felonies at the time of Bogan’s guilty plea of 29 March 1975. The proper score was therefore 73, not 105 points, resulting in a recommended range of “any nonstate prison sanction.” Despite these errors, in our opinion reversal is not mandated.

We think that Bogan’s past abuse of probation, demonstrated by his numerous violations thereof, and referred to by the sentencing court in its written reasons for departure, is a “clear and convincing reason” for departure from the guidelines in this case and, to the extent that the Minnesota case cited by Bogan is inconsistent with this holding, it is rejected. We note that we are joined in our holding by the recent opinion in Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), which held that a violation of probation may serve as a legitimate reason to exceed the presumptive sentence established in the guidelines provided the basis is stated in writing. Carter at 954. We do not agree with Bogan that the departure herein was excessive, in view of the factual circumstances of this case. The sentence herein appealed is therefore affirmed.

SHIVERS and WIGGINTON, JJ., concur.

      . (d) General rules and definitions.
      11. Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

      . See Sections 784.04 and 784.05, Florida Statutes (1973). In Chapter 74-383, § 20, Laws of Florida, the penalty for aggravated battery was increased to a second degree felony, but that act was not effective until 1 July 1975.


author: WENTWORTH, Judge.

text:
    Herman Henry HARMS, Appellant, v. STATE of Florida, Appellee.
    No. AW-238.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    Rehearing Denied Sept. 6, 1984.
    Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. Allbrit-ton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant Harms asserts violation of the sentencing guidelines, Fla.R.Crim.P. 3.701 in the imposition of the 15-year sentence appealed by him. He was sentenced on November 23, 1983, upon revocation of a four-year probationary term imposed in January 1982 on a guilty plea to a charge of dealing in stolen property. We reverse because the trial court erred (1) in rejecting defendant’s election, before sentencing, to have the guidelines applied, and (2) in finding “as a matter of law that the Defendant is not entitled to treatment and sentencing under Sentencing Guidelines, effective October 1, 1983” because his “failure to be sentenced on September 1st was due to his willful and intentional failure to appear” on that date as ordered. The court alternatively found “reason for deviating” from the guidelines in appellant’s failure to appear, i.e., “his own wrongdoing ... could not afford him the benefits of the sentencing guidelines ... recommendation.” Although appellant’s contentions with respect to improper grounds for deviation might be deemed premature or mooted by our initial determination of error, those issues will be treated briefly to avoid any contention that the sentence may be affirmed as a proper deviation under the rule which we find was not but should have been applied.

Appellant cogently argues that his failure to appear for prior scheduled sentencing (described in the order as “willful and intentional" without any evidentiary predicate for such terms) does not forfeit or waive “as a matter of law” his right to elect the guidelines for a sentence imposed after their effective date. The text of the rule, the opinion of the Court adopting it, and analogous precedent all negate such waiver. See Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984); Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979). A failure to appear under the circumstances shown in this case may, of course, be subject to independent statutory penalty. § 843.15, Florida Statutes. We are not here concerned with that potentiality, but note that the prescribed penalties do not expressly or inferentially affect the election of sentencing guidelines. This cause must accordingly be remanded for their application.

The order before us, and the supporting transcript, reflect the court’s further determination that, assuming applicability of the Rule, appellant's failure to appear is wrongdoing which, standing alone, shows clear and convincing reason to deviate from any presumptive guidelines sentence otherwise applicable. The state inaptly relies on Wilkinson v. State, 322 So.2d 620 (Fla. 3d DCA 1975), as authority for the same breadth of discretion in deviation from the Rule as Wilkinson recognized in the former sentencing process. Such is plainly not the intendment of the Rule. We conclude upon review of the single stated reason for deviation in the present case that it cannot suffice because to do so would permit the trial court to do indirectly, by deviation, what he cannot do directly by denying election of the Rule initially based solely on a prior failure to appear.

We reverse and remand accordingly for sentencing anew consistent herewith.

ERVIN, C.J., concurs.

BOOTH, J., dissents.

      . In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla.1983), the Florida Supreme Court stated that:
      The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.
      See also § 921.001(4)(a), Florida Statutes (1983), stating:
      The guidelines shall be applied to ...' felonies ... committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions ....

      . Noticeably absent from the record is the scoring sheet required by the Rule, although appellant's counsel informed the court "with the limited resources available from the jail jacket, I have computed that ... the point total is 43 points which places Mr. Harms in the 12 to 30 months incarceration ... category.”

      . Note 1, supra.

      . The record reflects the court’s regard for processes which, upon remand, require consideration of Rule amendments stating in part that "reasons for deviating ... shall not include factors relating to prior arrests without conviction.” See Amendment to R.C.P., Case # 65,216, Florida Supreme Court, May 8, 1984; Manning et al. v. State, 434 So.2d 889 (Fla. 1st DCA 1984). The transcript in this case contains the judge’s comment that defendant: is back before the Court for sentencing. He did not surrender himself. In fact, the reason why he is back before the Court is that after he failed to appear before the Court he was arrested further on one, two counts of armed burglary, one count of attempted armed burglary, one count of attempted murder, one count of possession of firearm by a convicted felon. I am not, for the purposes of this sentencing, I am not considering any guilt. He has yet to be tried on these new charges. I am only considering whether or not — considering his brush with the law while he was out on bond awaiting sentencing. He failed to appear in Court and then while he was out and under a status of a fugitive, he has been arrested again on several very serious charges.


author: SMITH, Judge. JOANOS, Judge,

text:
    Alfred Floyd JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. AW-388.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    Rehearing Denied Sept. 5, 1984.
    Michael Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace E. Allbrit-ton, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SMITH, Judge.

Appellant contends that the court below committed reversible error in refusing to sentence him pursuant to the new sentencing guidelines set forth in Rule 3.701, Florida Rules of Criminal Procedure, effective October 1, 1983, adopted by opinion In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). We agree, and remand for resentencing.

This case is factually indistinguishable from Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). In both cases, the defendants were placed on probation prior to the effective date of the guidelines, probation was revoked subsequent to the effective date of the guidelines, and on sentencing both defendants requested sentencing under the guidelines and these requests were denied by the trial court.

The trial court did not have the benefit of our decision and opinion in Duggar at the time of sentencing. The parties to this appeal were advised of and duly took note of the decision in their briefs. Appellant correctly insists that Duggar warrants reversal, while the State acknowledges the applicability of the guidelines to appellant’s sentencing, under Duggar, but nevertheless argues that reversal and resentencing is not required. The State’s position is premised upon the fact that the trial judge, in announcing his ruling that the guidelines were not applicable, further stated that if an appellate court should rule that appellant was entitled to be sentenced according to the guidelines, he would depart from the guidelines and impose a three year sentence, for the reason that appellant did not comply with his conditions of probation. The State contends that even if the trial judge erred in denying appellant’s request to be sentenced under the guidelines, appellant’s demonstrated unamenability to probation was a sufficient basis for the trial judge’s departure from the sentencing guidelines.

The State’s argument ignores the language in Section 921.001(4)(a), Florida Statutes (1983), which unambiguously provides that the guidelines shall be applied to all felonies (except capital and life felonies) committed prior to October 1, 1983, for which sentencing occurs after October 1, 1983, when the defendant affirmatively selects to be sentenced pursuant to the guidelines. We recognize that a trial judge may go outside the recommended range if he explains in writing the reasons for his departure, Section 921.001(6), Florida Statutes (1983), and Rule 3.701(d)(ll), Florida Rules of Criminal Procedure, but this does not give the trial judge the discretion to refuse to apply the guidelines. The trial judge must make an initial determination of the recommended range for a defendant’s crime, and only then may he make a determination that circumstances justify departure, giving his reasons in writing.

We note in passing that the committee note upon which this court relied in Dug-gar has been deleted from the newly amended Rule 3.701. See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). In its place, the following provision has been added to subsection (d) of Rule 3.701:

Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

Rule 3.701(d)(14), Florida Rules of Criminal Procedure. Pursuant to Section 921.-001(4)(b), the Legislature passed legislation implementing the guidelines as revised effective July 1, 1984. Ch. 84-328.

Nothwithstanding the amendments above noted, we hold that upon remand, appellant shall be entitled to be re-sentenced under the guidelines in effect at the time of his sentence being reviewed here. In so ruling we are in accord ‘with the view expressed by the Fifth District that the amended rule cannot be applied retroactively. See, Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), footnote 3, and cases therein cited. We also concur in the Carter court’s observation that a violation of probation may justify departure from the presumptive sentence established in the guidelines provided the basis for the departure is stated in writing as required by the rule.

Sentence VACATED and case REMANDED for resentencing.

ZEHMER, J., concurs.

JOANOS, J., concurs specially with opinion.

JOANOS, Judge,

concurs specially.

My disagreement with my two fellow judges in the majority is minimal. It involves only a portion of the footnote numbered two in the opinion. Otherwise, I agree with the opinion and the result.

In Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), the fourth district refrained from reversing a circuit court for failure “... to provide a written statement providing the reasons for the departure as required by Florida Rule of Criminal Procedure 3.701(d)(ll).” They did that because “... the trial court’s reasons were in fact transcribed as part of the record” and because they believed “... that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701.” They then went on to reverse the trial judge’s departure from the guidelines for another reason. I interpret the Harvey opinion as merely saying that under the circumstances of that case, the failure to provide a contemporaneous written statement constituted harmless error. I agree with the fourth district that under some circumstances the failure to provide a contemporaneous written statement could be harmless error where an oral statement is promptly reduced to writing in a manner so as not to prejudice in any way an appellant’s right of review. I, therefore, dissent from the majority’s disagreement with the Harvey case.

      . In Duggar, this court stated that the committee notes appended to the sentencing guidelines had not been adopted by the Florida Supreme Court. Nevertheless, this court determined that the notes were highly persuasive and relied on committee note (c) in remanding Duggar to the trial court for resentencing under the guidelines. As a matter of clarification, the Florida Supreme Court subsequently held that the committee notes are adopted and are part of Criminal Rules of Procedure 3.701 and 3.988. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988-Sentencing Guidelines), 451 So.2d 824 (Fla. 1984).

      . We note that Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), holds that so long as the trial court's oral explanation in the record is transcribed for review, a separate written articulation of reasons for departure from the guidelines is not required. We think the rule rather noticeably emphasizes the requirement of a contemporaneous written statement (rather than an oral statement to be transcribed later) to be made at the time of sentence. See, Rule 3.701 b.6, d.8, d.ll, and Committee Note (d)(ll), as amended May 8, 1984. We therefore certify conflict under Rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure.


author: PER CURIAM

text:
    Lynn Clarence HILL, Appellant, v. STATE of Florida, Appellee.
    No. AW-411.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Gregory S. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM

REVERSED and REMANDED for re-sentencing. Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984).

SMITH, JOANOS and ZEHMER, JJ., concur.