author: CAMPBELL, Acting Chief Judge.

text:
    Joe HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 82-436.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearing Denied Nov. 2, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Acting Chief Judge.

Joe Hayes appeals his convictions for burglary and sexual battery. He challenges the admission into evidence at his trial of fingerprints taken from him during a police investigation and of tennis shoes removed from the front porch of his home during the course of that same investigation. We find no error, and we affirm.

Early on the morning of May 13, 1980, a man entered the victim’s home and raped her. When the man left, she called the police, and when the officers arrived, they found latent fingerprints on the doorknob of the victim’s bedroom door. The police also found a herringbone pattern tennis shoe print on the east side of the victim’s front porch.

The police continued investigating this case for the next several weeks, and with the help of the victim, they prepared a composite drawing of the assailant that yielded the following description: A slender, white male with short brown hair. The police officers conducted field interviews with thirty to forty men who generally fit that description. One of the men interviewed was appellant.

Gradually, appellant emerged as a possible suspect in this and several other sexual battery cases, and so Detectives Shoup and Brady, along with the assistant police chief of Punta Gorda, went to appellant’s home to obtain his fingerprints. They intended to compare these prints with the latent prints lifted from the victim’s home. A search warrant was not obtained prior to going to appellant’s home.

Detective Shoup later testified that they only wanted to obtain appellant’s fingerprints, but he added that they were prepared to arrest appellant if he refused to cooperate because they believed they already had sufficient probable cause to do so. The officers never entered appellant’s home but talked to him on his front porch. He said he would rather go with the officers to the station than be arrested. It is, therefore, at best, highly questionable that appellant’s accompanying the officers to the station could be considered voluntary. While the officers stood on the front porch, they also noticed a pair of herringbone pattern tennis shoes lying on the front porch.

Appellant went to the station with the officers and allowed them to take his fingerprints. When the police compared these prints with the latent prints removed from the crime scene, they found that the prints matched, and appellant was thereafter arrested for and later charged with burglary and sexual battery.

Appellant sought, both before and during trial, to suppress the fingerprints and tennis shoes seized during the police investigation. The trial judge refused to suppress these articles of evidence, and the jury eventually found appellant guilty as charged.

Initially, we note that even though the officers did not have a warrant, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), does not apply here since the discussion about fingerprints and the seizure of the tennis shoes occurred on the front porch of appellant’s home. Because the officers found the shoes on appellant’s front porch, the trial court did not err in admitting the shoes into evidence. State v. Rickard, 420 So.2d 303 (Fla.1982), demonstrates that these shoes clearly were not in a constitutionally protected area at the time the officers saw them and so were subject to seizure.

We move then to a consideration of the stop of appellant and the seizure of his fingerprints, and we begin and end with an examination of the fourth amendment. Generally, to be valid under the fourth amendment, a search and seizure should be made only pursuant to a warrant that is based upon probable cause. In fact, a war-rantless search is per se invalid unless it falls within one of the carefully defined exceptions to the warrant requirement. Engle v. State, 391 So.2d 245 (Fla. 5th DCA 1980); Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979).

However, law enforcement officials frequently make a determination of probable cause, based upon the facts before them, that is later judicially sustained. Here, the police officers believed they had probable cause sufficient to arrest appellant before they obtained his fingerprints. However, we conclude that the officers did not have probable cause at that point in the investigation. The officers were seeking an intended, investigatory confrontation, an encounter in which law enforcement officials frequently engage. Such confrontations may occur in the context of preventing a crime from occurring, or, as here, where officers are involved in an ongoing investigation in an effort to solve a particular crime. At the time the officers approached appellant’s home, they had only the partial description given m the composite drawing to guide them and the knowledge that appellant was evidently a suspect in some other sexual batteries. These factors were alone insufficient to give the officers probable cause to arrest appellant. Since they did not have probable cause to arrest appellant, we must determine whether appellant’s encounter with the police may be lawfully explained in another manner. To answer this question, we still must examine the fourth amendment because clearly the strictures of that amendment apply during the investigatory as well as the accusatory or arrest stage of the criminal process. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, to resolve this issue, we must examine that amendment from another perspective.

Not all searches and seizures are invalid simply because probable cause is lacking. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court upheld a policeman’s stop and frisk of a person whom he suspected of being involved in criminal activity. In reaching its conclusion, the Court set out a very limited context in which the probable cause requirement of the fourth amendment does not apply. The focus for the Court in Terry and the focus which we follow here is whether the official governmental intrusion was reasonable. This focus is dictated by the very language of the amendment because it is beyond peradventure that the fourth amendment protects citizens from unreasonable searches and seizures, not all searches and seizures. Terry; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Gaskins v. State, 89 So.2d 867 (Fla.1956); State v. White, 312 So.2d 475 (Fla. 4th DCA 1975); Gilbert v. State, 289 So.2d 475 (Fla. 1st DCA), cert. denied, 294 So.2d 660 (Fla.1974); Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967). And when the probable cause requirement of the fourth amendment is not implicated in the facts of a particular case, courts must then examine all the attendant facts and circumstances involved to determine whether that governmental intrusion was reasonable for fourth amendment purposes. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Longo v. State, 157 Fla. 668, 26 So.2d 818 (1946); Starks v. State, 108 So.2d 788 (Fla. 2d DCA 1959). In undertaking this examination, a court must compare and then balance the competing interests involved. Brignoni-Ponce; Terry; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

The public, and through it the police, has an understandably strong interest in effective detection and prevention of crime. As the Court stated in Terry, “it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to arrest.” 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. This legitimate interest must be balanced in turn with the individual’s interest in being free from unjustified, humiliating physical intrusions as well as against his overall interest in privacy. In making this inquiry under the fourth amendment, courts must be cognizant that the analysis must proceed at two different levels. First, there must be a seizure of the individual by law enforcement officials. Then, there must be a search for and a seizure of evidence. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Appellant clearly was seized for purposes of the fourth amendment when the officers accosted him on his front porch and asked for his fingerprints. Because this was the sole reason for this intended investigative confrontation and because no interrogation occurred, we conclude that under the narrow circumstances of this case, this was a reasonable seizure or detention of appellant under the fourth amendment.

It does not matter that the officers had to take appellant to the police station to actually obtain his prints. Whether the prints were taken at the station or on appellant’s front porch is immaterial. State v. Merklein, 388 So.2d 218 (Fla. 2d DCA 1980), petition for review denied, 392 So.2d 1377 (Fla.1981), illustrates why this is so. There, sheriff’s deputies were responding to an attempted robbery that occurred on Siesta Key. One deputy broadcast a BOLO describing the getaway car and the two suspects inside. Other deputies covered the bridges leading to the mainland and stopped several vehicles that fit the description in the BOLO. The defendant and his companion were stopped, and then they were held until another deputy could transport the victim and the witnesses to the scene for purposes of identification. This court found that this was a reasonable detention. “It is permissible to detain suspects for a reasonable time to investigate the circumstances warranting an investigatory stop as well as any suspicious circumstances produced by the stop.” 388 So.2d at 219.

Like the detention in Merkiein, the detention here occurred during the investigatory stage of the criminal process. In these circumstances, it does not matter who is moved, the victim or the suspect. By way of analogy and in support of the view we follow here, it should be noted that in Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983), the defendant was removed from the scene of an accident, taken to a hospital, and there had a blood specimen taken from him. The specimen was later used against him in his trial for manslaughter while driving while intoxicated. The movement to the hospital prior to taking the blood specimen did not render the specimen inadmissible at trial. Where there is a reasonable suspicion sufficient to justify a stop or detention, it is permissible to stop or detain an individual reasonably long enough to allay or confirm suspicions so as to cause either release or arrest of that individual. This principle applies here because if it is reasonable to take a suspect to a hospital for a blood test to obtain evidence in regard to a manslaughter charge, it seems to us it is also reasonable to take a suspect in a rape case to the police station to obtain fingerprint comparisons.

Since we conclude that appellant was lawfully detained, or seized for purposes of the fourth amendment, we move to the next level to determine whether the taking of appellant’s fingerprints was likewise a reasonable search and seizure , under the fourth amendment.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the United States Supreme Court held that fingerprints obtained from the petitioner in that case had been seized during a detention violative of the fourth and fourteenth amendments. The petitioner was one of twenty-four black youths taken to police headquarters during an investigation in a rape case. The victim had described her assailant only as a young black male. During the detention, the youths, including the petitioner, were fingerprinted, questioned, and released. The petitioner was detained again a few days later, jailed, given a lie detector test, and fingerprinted again. The Court reversed, noting that there had been “no attempt ... to employ procedures which might comply with the requirements of the Fourth Amendment.” 394 U.S. at 728, 89 S.Ct. at 1398, 22 L.Ed.2d at 681. Although not necessary to the decision in Davis, the Court addressed the question of a detention solely for the purpose of obtaining fingerprints:

Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v Municipal Court, 387 US 523, 18 L Ed 2d 930, 87 S Ct 1727 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.
We have no occasion in this case, however, to determine whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest.

394 U.S. at 727-28, 89 S.Ct. at 1397-98, 22 L.Ed.2d at 681. The Court in Davis did not need to decide that question because, under the facts of that case, it was unnecessary to do so. The Court ruled that the fingerprint evidence was inadmissible explicitly because the police officers interrogated the petitioner in addition to merely taking his fingerprints.

The instant ease poses the very question left unanswered by the Court in Davis, and we note that this issue has not been directly addressed since the Davis decision. See United States v. Thomann, 609 F.2d 560 (1st Cir.1979). Our study of Davis and its progeny has revealed that the precise holding of Davis, which we have just described, as well as the meaning and import of that decision, has been misconstrued. See Bacon v. United States, 449 F.2d 933 (9th Cir.1971). See also Hamrick v. Wainwright, 465 F.2d 940 (5th Cir.1972). For example, in Dunaway v. New York, the Court, while again asserting the notion that it is permissible under certain circumstances to take fingerprints absent probable cause, seemed to imply in an earlier paragraph of the same opinion that it had rejected that very argument in Davis.

Of course, the Court did not reject that argument in Davis, and in any event, the facts in Dunaway in no way involved or concerned the taking of a suspect’s fingerprints during the course of an ongoing criminal investigation. There, the police, during the course of a murder investigation, took the petitioner to the station, placed him in an interrogation room, gave him Miranda warnings, and questioned him. He was never told he was under arrest, and the officers did not obtain a warrant because they did not believe they had probable cause. Eventually, he made an incriminating statement which was later determined to be the fruit of an illegal detention. Thus, Dunaway is inapposite to the instant case, except insofar as it stands for the proposition we earlier stated; the fourth amendment applies to the investigatory as well as the accusatory stage of the criminal process.

Our state courts have also touched on the issue before us on occasion; however, each case is factually distinguishable and, therefore, inapplicable to the instant case. In Anderson v. State, 241 So.2d 390 (Fla.1970), vacated, 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758 (1972), the defendant was arrested and fingerprinted and later obtained counsel. Later, the police took his palmprint without advising him of his rights. The court held that this action did not violate the defendant’s right to be free from self-incrimination. Citing Davis, and apparently misconstruing it, the court in dicta indicated that taking the fingerprints of a suspect before arrest and without probable cause was violative of the fourth amendment. However, as we have indicated, Davis, in fact, left open that precise question, and so the language in Anderson, being dicta by which we are not bound, does not prevent us from reaching and deciding that question. Years ago, Mr. Justice Whitfield explained why this is so:

It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. It cannot be reasonably expected that every word, phrase or sentence contained in a judicial opinion will be so perfect and complete in comprehension and limitation that it may not be improperly employed by wresting it from its surroundings, disregarding its context and the change of facts to which it is sought to be applied, as nothing short of an infinite mind could possibly accomplish such a result. Therefore, in applying cases which have been decided, what may have been said in an opinion should be confined to and limited by the facts of the case under consideration when the expressions relied upon were made, and should not be extended to cases where the facts are essentially different. When this rule is followed, much of the misapprehension and uncertainty that often arise as to the effect of a decision will be practically avoided.
What is said in an opinion upon a point not raised or properly involved cannot control in a subsequent case where the very point is presented for decision. Union Tank Line Co. v. Wright, 249 U.S. 275 [39 S.Ct. 276, 63 L.Ed. 602], 39 Sup.Ct. Rep. 276. General words used in a judicial opinion should be construed with such limitations as are required by a refernce (sic) to the facts in the case.

Ex Parte: Ernest Amos, 93 Fla. 5, 20-22, 112 So. 289, 294-95 (1927) (en banc) (Whitfield, J., concurring) (citations omitted). This old and well established judicial principle is still valid and has been consistently applied. Ard v. Ard, 395 So.2d 586 (Fla. 1st DCA 1981); Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975); Weisenberg v. Carlton, 233 So.2d 659 (Fla. 2d DCA), cert. denied, 240 So.2d 643 (Fla.1970); Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966).

In Kinsler v. State, 360 So.2d 24 (Fla. 2d DCA 1978), the defendant allowed police officers to take a footprint impression from him, and this court, relying on Davis and the Anderson dicta, found that this action violated the defendant’s fourth amendment rights. However, there, a key factor for the court was the defendant’s status as a parolee and his parole officer’s statement that if he refused to submit he would be in violation of his parole. Notwithstanding, to the extent that Kinsler followed the dicta in Anderson which sprang from an erroneous application of Davis, we hereby recede from that portion of our Kinsler decision.

There are a number of cases that address situations similar to the one presented here, and having examined these cases, we conclude that the fingerprints were properly seized and, therefore, properly admitted into evidence against appellant.

In United States v. McCarthy, 297 F.2d 183 (7th Cir.1961), cert. denied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962), the court affirmed McCarthy’s bank robbery conviction. He argued that prints taken from him by an F.B.I. agent who persuaded him to go downtown and give his prints should be suppressed because they had been seized in violation of the fourth amendment. The court, in affirming, held otherwise, and this case seems to represent the clearest example of the situation left open in Davis, aside from the one presented here. Cases decided after Davis that have touched on this issue and similar ones dealing with physical evidence have also allowed such evidence to be admitted.

In United States v. Sanders, 477 F.2d 112 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 88, 88 L.Ed.2d 88 (1973), the court affirmed the admission into evidence of palmprints taken from Sanders. The court noted that at the time the palmprints were taken, Sanders was lawfully in custody on another unrelated matter. Appellant was likewise lawfully seized. As far as the actual taking of the palmprints, the court concluded that taking palmprints, like the taking of fingerprints here, is much less intrusive than an interrogation or a full-blown search of the person.

In United States v. Harris, 453 F.2d 1317 (8th Cir.1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154 (1973), the court found no error in the admission of handwriting exemplars given by the defendant. The defendant there was a suspect in a case involving the theft of a check which he had endorsed. Some postal inspectors visited Harris in his home and in the presence of his parents informed him of the ongoing investigation and asked him for his handwriting sample. The court found that the postal inspectors’ conduct was reasonable because Harris was never under any type of pressure, coercion or duress. The court stated with reference to the inspectors’ conduct that “it appears to be the most logical and reasonable course of conduct to pursue.” 453 F.2d at 1321. Likewise here, the officers, in attempting to solve a serious crime, tried to tie up the strongest lead they had, fingerprints, with a suspect.

In United States v. Sechrist, 640 F.2d 81 (7th Cir.1981), the court affirmed the earlier denial of Sechrist’s motion to suppress his fingerprint evidence. The court noted that like the defendant in Sanders, Sechrist was lawfully in custody on another matter at the time his fingerprints were taken. Since he was, therefore, lawfully seized for fourth amendment purposes, like appellant here, the court examined only the taking of the fingerprints from Sechrist and concluded that the process was so minimally intrusive that it was wholly reliable and, therefore, did not violate the fourth amendment.

Therefore, it is clear from McCarthy, Harris, Sanders and Sechrist that such a minimal intrusion upon appellant in this case did not infringe any of his fourth amendment rights. Though he was not in legal custody, he was lawfully and reasonably “seized” for purposes of the fourth amendment. This seems to us a logical extension of Terry. Unlike the petitioner in Davis, there is no evidence that he was subjected to interrogation.

Finally, we note that in McCarthy, Harris and Sanders, the courts did not require that there be judicial approval or authorization prior to obtaining prints or handwriting samples. Neither do we conclude that there should be such intervention for we do not deal here with a question of probable cause. Requiring this type of judicial intervention at this stage of a criminal investigation would unnecessarily hamper efforts both to prevent and to solve crimes. Carried to its logical extreme, such a rule would render Terry a complete nullity-

It would appear by implication from Davis and many other cases that had the officers arrested appellant under a mistaken belief that they had probable cause, taken him to the station, booked him, fingerprinted him, and nothing more, the fingerprints would be admissible in evidence even though the arrest was later invalidated. Thus, it would seem that where, as here, appellant was not arrested, there was no probable cause but only a reasonable suspicion of criminal activity, and where appellant was, without force being used, persuaded or even coerced into going with the officers and giving his fingerprints, and nothing more, those prints would also be admissible.

However, this decision should not in any way be construed as giving law enforcement officers carte blanche to fingerprint every person suspected of committing a crime currently under investigation. We hold only that under the narrow facts of this case, the government’s legitimate interest in law enforcement, specifically, the solving of a violent crime, outweighed appellant’s interest in privacy as defined by the fourth amendment. The initial seizure of appellant was reasonable as was the seizure of his fingerprints. As we have earlier stated, the seizure of the tennis shoes presents no fourth amendment problems.

We have examined the remaining points on appeal, and we find them to be without merit.

AFFIRMED.

SCHOONOVER and LEHAN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The case was vacated “insofar as it leaves undisturbed the death penalty imposed....” 408 U.S. at 845, 92 S.Ct. at 2845, 33 L.Ed.2d at 744. See Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972).

      . Although we have not discussed it, obviously the fourth amendment is made applicable to the states by operation of the fourteenth amendment.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    AMERICAN DIVERSIFIED INSURANCE SERVICES, INC., a Florida corporation, Appellant, v. UNION FIDELITY LIFE INSURANCE COMPANY, an insurance corporation, Ron Holmer, and Michael E. McBryan, Appellees.
    No. 82-2865.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearing Denied Oct. 31, 1983.

      George W. Phillips, Tampa, for appellant.
    Charles A. Buford of Robinson, MacPher-son, Harper, Kynes, Batt, Geller & Watson, P.A., Clearwater, for appellees.
   LEHAN, Judge.

American Diversified Insurance Services, Inc. appeals an order dismissing its amended complaint with prejudice. We reverse.

The amended complaint charged the three appellees with civil conspiracy, alleging that the three had conspired to destroy American Diversified’s business. The complaint alleged that appellee McBryan, immediately after his employment with appel-lee Union Fidelity, came to work with American Diversified, intending to leave and form a competing insurance agency after learning American Diversified’s business and the identity of its customers and subagents.

The complaint also alleged that Union Fidelity cancelled its agency contract with American Diversified in furtherance of the conspiracy. Attached to the complaint is a copy of the agency contract between Amér-ican Diversified and Union Fidelity which states that the contract was terminable by either party upon 90 days written notice. Also attached to the complaint were a letter from Union Fidelity to American Diversified terminating the contract and a letter from Union Fidelity to the Florida Department of Insurance explaining that the contract was being terminated because American Diversified submitted insurance applications solicited by a subagent not licensed through American Diversified and because a check for premiums from American Diversified to Union Fidelity was returned for insufficient funds.

The complaint further alleged that, when McBryan began his employment with American Diversified, he already had a general agent’s contract with Union Fidelity; that during his employment with American Diversified he recruited subagents of American Diversified to leave with him and engage in a competing business; and that after leaving American Diversified, McBryan formed a competing insurance agency. The plaintiff also alleged that Union Fidelity and appellee Holmer, an employee of Union Fidelity, transferred the licenses of American Diversified’s sub-agents to McBryan’s agency before those subagents’ licenses with American Diversified had been cancelled. The copy of the agency contract attached to the complaint shows that subagents’ licenses were terminable by Union Fidelity at any time.

Finally, the complaint alleged that after McBryan formed his own agency, Holmer and Union Fidelity supplied McBryan with information about policyholders whose policies were originally written by American Diversified, inquiries from American Diversified’s customers, and leads properly belonging to American Diversified. Holmer was alleged to have been acting outside the scope of his employment with Union Fidelity-

American Diversified appeals the trial court’s dismissal of its amended complaint and asserts that the complaint stated a cause of action of civil conspiracy to destroy American Diversified’s business by maliciously interfering with the business relationships between American Diversified and its customers, its subagents, and Union Fidelity. We agree that the amended complaint stated a cause of action for civil conspiracy.

The appellees argue that a cause of action for civil conspiracy in Florida exists only if (a) the basis for the conspiracy is an independent wrong or tort which would constitute a cause of action if the wrong were done by one person, see, e.g., Regan v. Davis, 97 So.2d 324 (Fla. 2d DCA 1975) (conspiracy to interfere with plaintiff’s employment as a speech therapist), or (b) the conduct complained of would not be actionable if done by one person, but by reason of force of numbers or other exceptional circumstances, the defendants possess some peculiar power of coercion, which gives rise to an independent tort of conspiracy, sometimes referred to as an “economic boycott.” See Churruea v. Miami Jai-Alai, Inc., 353 So.2d 547 (Fla.1977); Snipes v. West Flagler Kennel Club, 105 So.2d 164 (Fla.1958); Margolin v. Morton F. Plant Hospital Association, Inc., 342 So.2d 1090 (Fla. 2d DCA 1977).

Appellant contends that a third type of civil conspiracy is recognized in Florida in addition to a conspiracy based on an independent tort or an economic boycott. Appellant argues that the defendants’ actions, even if not otherwise tortious or wrongful, can become an illegal conspiracy if the motivation behind the actions is sufficiently malicious, citing Hunter Lyon, Inc. v. Walker, 152 Fla. 61, 11 So.2d 176 (1942), and Dr. P. Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So.2d 465 (1943). However, we believe that neither those two cases nor any other Florida case of which we are aware stands for that contention of appellant. See Snipes and Margolin which discuss the action of civil conspiracy in Florida.

Although the court in Hunter Lyon did not state that an independent tort had been committed, the independent tort of intentional interference with business relationships as forming the basis of the conspiracy cause of action may be discerned from the facts recited in that case. It is less easy to determine what, if any, independent tort formed the basis of the conspiracy in Dr. P. Phillips, but we are guided by the supreme court’s later citation of Dr. P. Phillips in Liappas v. Augoustis, 47 So.2d 582 (Fla.1950), for the concept that the “gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy. ...” In addition, neither in Hunter Lyon nor in Dr. P. Phillips did the supreme court expressly state that maliciousness will transform otherwise proper conduct into a civil conspiracy.

Thus, we must examine the allegations of appellant’s complaint to determine whether appellant has stated a cause of action in civil conspiracy based on either an independent wrong or an “economic boycott.” We agree with appellees that appellant has not alleged an economic boycott claim because the allegations do not show that appellees, by force of numbers or other exceptional circumstances within the requirements of Snipes, Churruea and Margo-lin, attempted to destroy appellant’s business by acting together.

We do find, however, that appellant has stated a cause of action for civil conspiracy based upon an independent tort, specifically the tort of intentional interference with business relationships. Appellant alleged that the appellees diverted to McBryan’s agency certain inquiries and leads received from appellant’s customers. At that time appellees were third parties to the business relationship existing between appellant and its policyholders, therefore the elements of the tort of unjustified interference with that relationship by appel-lees can be perceived from the complaint to wit, (a) intentional and unjustified interference, (b) by a third party, (c) with a business relationship, (d) to the damage of appellant. Ethyl Corp. v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980); Days v. Florida East Coast Railway Co., 165 So.2d 434, 436 (Fla. 3d DCA 1965).

The complaint cannot be characterized as a model of clear cut allegations of a conspiracy based on interference with business relationships. Nevertheless, under the broad pleadings concepts in this state, appellant should be given the opportunity to prove, if it can, that appellees conspired to commit the tort of interference with the business relationship between appellant and its customers. This, of course, must include proof of unjustified interference.

Other recitations of alleged wrongdoing contained in appellant’s complaint, while perhaps relevant to explain the background of the interference with business relationships, do not in themselves appear to support an action for civil conspiracy. Those allegations include the cancellation of the agency contract and sub-agent’s contracts by Union Fidelity, which are not shown to be wrongful since the contracts were terminable at will or upon notice, and McBryan’s employment with appellant for a short time before forming his own agency, which is not shown to be wrongful without a noncompetition contract, absent particular allegations by appellant of malfeasance on McBryan’s part, such as, theft of customer lists or other confidential information. See Renpak, Inc. v. Oppenheimer, 104 So.2d 642 (Fla. 2d DCA 1958).

In summary, although many of the allegations in the amended complaint do not state a cause of action for civil conspiracy, appellant should be allowed to proceed on those allegations of the complaint that do.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


author: HOBSON, Acting Chief Judge. SCHEB, Judge, PER CURIAM. SCHEB, Judge,

text:
    Eddie Lee WEST, Appellant, v. STATE of Florida, Appellee.
    No. 82-1276.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Motion for Rehearing Denied; Motions to Certify Conflict and to Stay Mandate Granted Nov. 9, 1983.

      Mark Lipinski, Palmetto, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Eddie West appeals an order adjudicating him guilty and sentencing him for possession of cocaine which followed an order denying his motion to suppress cocaine, marijuana, and drug paraphernalia seized from his apartment pursuant to a search warrant. We reverse.

On January 15, 1982, Detectives Steube and Potts of the Manatee County Sheriff’s Department executed an affidavit in support of a warrant for the search of appellant’s Bradenton apartment. The affidavit, which they submitted to a circuit court judge, mentioned only that a confidential informant made a controlled purchase of six packets of cocaine from a person inside appellant’s apartment on January 8, 1982. It did not apprise the court of a second confidential informant’s unsuccessful attempt to make a controlled buy of cocaine inside appellant’s apartment sometime between January 8 and 15, 1982. Detective Potts informed the judge orally at the time the detectives submitted the affidavit that he had received three anonymous telephone calls on December 13, 17 and 18, 1981, from a black female advising him that narcotics activity was transpiring at appellant’s apartment. The judge expressly found that, based upon his consideration of the affidavit and oral examination of the affi-ants, probable cause existed to believe that the laws relating to possession and sale of controlled substances were being violated. He thereupon issued a warrant authorizing a search of appellant’s dwelling “for any and all controlled substances found therein....”

A January 22, 1982, search of appellant’s apartment pursuant to the warrant resulted in the seizure of fourteen tinfoil packages of cocaine, a plastic baggie of marijuana and drug paraphernalia. The state subsequently charged appellant with possession of cocaine in violation of section 893.13, Florida Statutes (1981).

Appellant filed a motion to suppress all evidence seized during the search, arguing in relevant part that the detectives had deliberately omitted material facts from the affidavit; that the issuing judge had improperly considered testimony not contained in the affidavit in reaching his probable cause determination; and that the warrant was overbroad.

After conducting a hearing on appellant’s motion to suppress, the court denied the motion. It ruled that no material facts had been omitted from the affidavit. It also decided that the search warrant was “well drawn and not overbroad,” explaining that the issuing judge “had the right to assume that if a person might sell cocaine, they [sic] might sell some other kind of controlled substance.” This language implicitly shows that the court believed that the affidavit, by itself, demonstrated probable cause to uphold the warrant.

Appellant thereafter pled nolo conten-dere, specifically reserving his right to appeal the denial of the motion to suppress. He was then adjudicated guilty of the charge and sentenced to a prison term of one year and one day. The state has stipulated that the search warrant issue is dis-positive.

On appeal, appellant raises the three aforementioned arguments about the omission from the affidavit, the affiant’s oral testimony, and the warrant’s overbreadth. We shall address each contention in order.

Appellant submits that had the detectives included in the affidavit the information regarding the second confidential informant’s futile attempt to make a controlled purchase of cocaine at appellant’s residence, the issuing judge may have concluded that probable cause did not exist to believe that drugs would be found at his apartment. This argument was thoroughly discussed at the suppression hearing. After listening to the detectives’ testimony, the court did not find that the information regarding the second confidential informant’s unsuccessful attempt was omitted with an intent to deceive the magistrate or with reckless disregard for the truth. Further, the court found that the omission was not material. We therefore reject appellant’s contention on this issue.

Appellant next argues that the issuing judge’s finding of probable cause was improperly grounded in part upon a consideration of the affiant’s oral testimony. Both parties concur that an affidavit, in and of itself, must demonstrate probable cause for the issuance of the search warrant and that such affidavit cannot be supplemented by oral testimony in order to establish probable cause for the issuance of the warrant. Article I, § 12, Fla. Const.; Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980). Notwithstanding the issuing judge’s statement that his finding of probable cause was based upon an oral examination of the affi-ants and a study of the affidavit, the state poses that the affidavit by itself was sufficient to demonstrate probable cause to believe that “any and all controlled substances” were at appellant’s residence. The court below apparently agreed, since it reasoned that the fact of a sale of cocaine justified a search for controlled substances. Therefore, we shall now turn to appellant’s overbreadth argument.

Article I, section 12, of the Florida Constitution reads in relevant part:

[N]o warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, ....

(Emphasis added.) Similarly, the Fourth Amendment to the United States Constitution states:

No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Emphasis added.)

The purpose of requiring that a search warrant particularly describe the things to be seized is to prevent an unconstitutional general search. See, e.g., Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748,49 L.Ed.2d 627, 642 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971); Marron v. United States, 275 U.S. 192,195-96, 48 S.Ct. 74, 75-76, 72 L.Ed. 231, 236-37 (1927); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

A search warrant which authorizes an unconstitutional general search can invariably be categorized as one which is overbroad on its face, overbroad in light of the facts, or both. A warrant is overbroad on its face when the description within the warrant of the items to be seized fails to adequately limit the discretion of the officer executing the warrant. See, e.g., Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Bloom v. State, 283 So.2d 134 (Fla. 4th DCA 1973); United States v. Quantity of Extracts, Bottles, etc., 54 F.2d 643 (S.D.Fla.1931). Declared the United States Supreme Court in Marron:

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. •

Marron, 275 U.S. at 196, 48 S.Ct. at 76, 72 L.Ed. at 237. (Emphasis added.) A search warrant is overbroad in light of the circumstances when the description within the warrant of the things to be seized is broader than the description presented in the affidavit. See, e.g., Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980), petition for review denied 399 So.2d 1146 (Fla.1981); Bloom; People v. Yusko, 45 A.D.2d 1043, 358 N.Y.S.2d 176 (1974). A warrant should not be any broader than the affidavit because the affidavit is a prerequisite to its issuance. See Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), cert. discharged 325 So.2d 404 (Fla.1976). As emphasized earlier, article I, section 12, of the Florida Constitution expressly provides that the warrant shall be “supported by affidavit.”

In Pezzella, relied upon by appellant, the Third District Court of Appeal reversed a trial court’s denial of the defendant’s motion to suppress under analogous facts because it held that the search warrant was overbroad in light of the circumstances. There, the affidavit in support of the warrant referred to information that the defendant possessed and sold only methaqua-lone. The warrant, however, authorized officers to seize “[possession of a controlled substance: In violation of F/S/S 896.13 [893.13].” Officers thereafter executed the warrant and seized various types of controlled substances from the defendant’s residence. In reversing, the court stated:

A reading of the affidavit in support of the search warrant in the present case confirms its overbreadth. In the affidavit, the chronology, facts, and circumstances related through the medium of a confidential informant were all with respect to the defendant’s possession, sale, and distribution of methaqualone. Since the supporting affidavit referred, with specificity, to a particular controlled substance, there was no need or purpose shown as to order the seizure of any controlled substances. The officers had the ability and the information to properly describe what they were looking for. Such a command gave the executing officers carte blanche authority to rove through the defendant’s house, and with their lawful presence, conduct an exploratory search.

Pezzella, 390 So.2d at 100. (Emphasis in original.)

The state, while acknowledging Pezzella, relies upon Carlton v. State, 418 So.2d 449 (Fla. 5th DCA 1982), wherein the Fifth District Court of Appeal reached an opposite result under similar facts. There, the affidavit for the search warrant showed probable cause to believe that there had been two controlled purchases of cannabis by an informant from the defendant while the defendant was seated in a particularly described automobile. The warrant authorized a search of the automobile for “all controlled substance and other matters of [sic] things pertaining or relating to said possession and sale of controlled substance violations of chapter 893, Florida Statutes.” A subsequent search of the car led to the seizure of cannabis and other controlled substances. Our sister court affirmed the trial court’s denial of the defendant’s motion to suppress, holding that the warrant sufficiently described the property to be seized.

In reaching their respective decisions, our sister courts in Carlton and Pezzella recognized, as do we here, that where inherently illegal property is sought, versus inherently innocuous items, the particularity requirement of the state and federal constitutions need not be as strictly adhered to. As our state supreme court explained in North v. State, 159 Fla. 854, 32 So.2d 915 (1947):

The phrase “particularly describing * * * thing to be seized” must be given a reasonable interpretation consistent with the type or character of the property sought. As is pointed out in State v. Nejin, 140 La. 793, 74 S. 103, 106: “ * ⅜ * where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize, not specified property, but any property of a specified character, which, by reason of its character and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place, and circumstances, would be unnecessary and ordinarily, impossible; ....

Id. at 917.

The courts in Carlton and Pezzella apparently reached opposite results because the Pezzella court, unlike the Carlton court, stressed that, even though contraband may be sought pursuant to a warrant, when a judge issuing a warrant has the ability and information to enable him to describe with particularity the contraband which is sought, the constitution requires that he do so. We agree with Pezzella and disagree with Carlton.

In construing the North holding regarding the “looser” standard of particularity where contraband is sought, we deem it vitally important to recognize that, unlike the situations in Pezzella, Carlton and this case, the court in North faced the not uncommon predicament in cases involving contraband where a particular description of the items of contraband to be searched for and seized was not feasible, let alone possible. The affidavit there described the illicit property to be seized as “numerous slot machines, roulette wheels, and other gambling devices and games of chance such as are commonly used in gambling games.” The warrant authorized the seizure of “gambling implements and devices used for the purpose of gaming and gambling.” In affirming appellant’s conviction, the court held that either description was sufficient.

Even though it was not possible in North to precisely describe all the items of contraband to be searched for and seized, the warrant was still not overbroad in light of the facts presented in the affidavit; it was as limited as circumstances reasonably permitted. See also, State v. McCrery, 402 So.2d 49 (Fla. 1st DCA 1981), petition for review denied, 412 So.2d 467 (Fla.1982) (warrant authorizing a search of defendant’s residence for “contraband being controlled substances under chapter 893, Florida State Statutes including cocaine, cannabis and records and notes of narcotic transactions as well as evidence of the commission of a felony; to wit: possession and possession with intent to sell or deliver cocaine and/or cannabis” held valid; affiant had explained in detail in the affidavit why he believed that cannabis and cocaine were located on defendant’s premises and why he thought that defendant was dealing in large amounts of illegal narcotics); State v. Clark, 281 N.W.2d 412 (S.D.1979) (warrant authorizing a search of defendant’s residence for “any and all substances controlled by SDCL 39-17 facts showed that the informant had personally observed cocaine, marijuana and amphetamines at defendant’s address and that he had been present when defendant ordered various illicit drugs from a dealer over the telephone); State v. Salinas, 18 Wash.App. 455, 569 P.2d 75 (1977) (warrant authorizing a search of defendant’s residence for “controlled substances known as scheduled and legend drugs” held not overbroad; facts demonstrated that defendant had purchased some drugs from a person who had bought drugs from two individuals who had stolen from a pharmacy 43 types of scheduled and legend drugs consisting of about 20,000 separate items); People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970) (warrant describing property to be seized from defendant’s residence as “Marijuana, (Cannabis Sativa L.) dangerous drugs, stimulant drugs, and hallucinogenics, as defined in House Bill # 1021 ...” held valid; affiant had revealed in the affidavit that he had personal knowledge that defendant was a user and seller of marijuana and dangerous drugs).

The United States Supreme Court emphasized in Coolidge that a distinct protection afforded by the warrant requirement is that a search allowed for “should be as limited as possible.” Coolidge, 403 U.S. at 467, 91 S.Ct. at 2038, 29 L.Ed.2d at 583. Here, as in Pezzella and, in our view, as in Carlton, the search warrant is not as limited as possible. The warrant is overbroad in light of the facts set forth in the affidavit. As noted previously, the affidavit mentioned only a sale of cocaine, a controlled substance. See § 893.03(2)(a)4. The affidavit did not say anything about there being other controlled substances on appellant’s premises. The warrant nevertheless authorized a search for “any and all controlled substances ....” We cannot help but point out that there are over 175 controlled substances. See § 893.03. To be sure, the mention in the affidavit here of a sale of cocaine at appellant’s apartment may have led the issuing judge to infer that there might be other controlled substances on the premises. However, the federal and state constitutions dictate that a search warrant be issued upon probable cause, not inferences. In our view, the affidavit in question does not, without more, establish probable cause to believe that other controlled substances were located at appellant’s residence.

We therefore refuse to follow cases cited by the state for the proposition that language similar to that contained in the instant search warrant is not overbroad. See, e.g., State v. Hamilton, 236 N.W.2d 325 (Iowa 1975) (warrant authorizing a search of defendant’s apartment for “hashish, a Schedule I controlled substance, and any and all controlled substances as defined in [chapter] 204 of the 1973 Code of Iowa” held not overbroad; affiant’s only knowledge of illegal activity was that a mail carrier had delivered a package containing hashish to defendant’s residence); People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971) (warrant authorizing a search of defendant’s residence for “narcotics, dangerous drugs and narcotics paraphernalia” held not too general; authorities applying for the warrant knew only about marijuana at defendant’s premises).

In closing, we believe it worthwhile to recall that even if an affidavit which supports a search warrant is sufficiently detailed, as here, it cannot cure a defect in a warrant consisting of a failure to describe items to be seized with particularity. Bloom. A defective warrant can only be saved if 1) the supporting affidavit is physically attached to the warrant at the time the warrant is executed; and 2) the warrant expressly refers to the affidavit and incorporates it by reference. Bloom. See also Booze v. State, 291 So.2d 262 (Fla. 2d DCA), cert. denied 297 So.2d 836 (Fla.), cert. denied 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974). The record shows that neither of these two requirements was satisfied here.

Lastly, we are aware that search warrants have been upheld in part under a concept of severability with respect to articles to be seized. See Aday v. Superior Court of Alameda County, 55 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415 (1961); People v. Niemczycki, 67 A.2d 442, 415 N.Y.S.2d 258 (1979); People v. Mangialino, 75 Misc.2d 698, 348 N.Y.S.2d 327 (N.Y.Crim.Ct.1973). However, this doctrine of severability does not apply here because there is no valid portion which can be excised. Compare, e.g., Niemczycki (warrant authorized a search of defendant’s premises for “[tjwelve large plastic bags containing marijuana and any other contraband which is unlawfully possessed”; court held that there was only probable cause to search for the bags of marijuana and that, even though other contraband was seized during the search, the severability doctrine could be applied to uphold the seizure of the bags of marijuana).

Accordingly, we reverse the order convicting appellant for possession of cocaine and sentencing him thereon.

REVERSED.

LEHAN, J., concurs.

SCHEB, J., dissents with opinion.

SCHEB, Judge,

dissenting.

I disagree with the majority’s conclusion that the warrant, which authorized a search for “any and all controlled substances found therein,” was overbroad and amounted to a general warrant proscribed by Article I, section 12, of the Florida Constitution and the fourth amendment of the United States Constitution. At the outset I acknowledge the historical importance of guarding against issuance of general warrants. However, I do not believe the warrant before us offends that principle.

The language of the warrant must inform the officers of the limits of the search. Here, the words “any and all controlled substances” have a definite meaning. See § 893.02(3), Fla.Stat. (1981). In fact, the majority recognizes that the search warrant now before us is not overbroad on its face and that the executing officer’s discretion was adequately limited by the list of controlled substances in section 893.03, which delineated the scope of the search.

The majority’s position is that the warrant, while not overbroad on its face, is overbroad in light of the facts set forth in the affidavit which only allude to cocaine being on appellant’s premises. Certainly, if the warrant had only authorized a search for cocaine, there would have been no over-breadth problem. The officers then would have been able to seize other contraband found in plain view or discovered inadvertently during the course of their search for cocaine. Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). There is no indication here that the officers were conducting a general exploratory search for anything outside the scope of the warrant. In any event, the fourteen packets of cocaine should not be suppressed since cocaine was specifically mentioned in the affidavit and comes within the scope of “controlled substances” in the warrant.

The description requirement for property to be seized under warrant “must be given a reasonable interpretation consistent with the type or character of the property sought.” North v. State, 159 Fla. 854, 32 So.2d 915 (1947). I think it important to note that here we are concerned with contraband substances which are inherently illegal. It is one thing to authorize a search for a specific item of property which is not inherently illegal. In such an instance the property must be particularly described to prevent the officers from seizing the wrong item. It is entirely something else where, as here, there is probable cause to justify a search for property which is “prima facie contraband.” In describing property which by character is illicit, a looser description is allowable. See Carlton v. State, 418 So.2d 449 (Fla. 5th DCA 1982); State v. McCrery, 402 So.2d 49 (Fla. 1st DCA 1981), petition for review denied, 412 So.2d 467 (Fla.1982).

I agree with the Fifth District’s decision in Carlton, which affirmed the denial of a motion to suppress contraband items seized pursuant to a search warrant, which authorized seizure of “all controlled substance[s].” The court held that “[s]ince all ‘controlled substances’ are contraband which can be seized if found during an authorized search,” then the warrant authorizing a search for “all controlled substance[s]” sufficiently described the property to be seized. Interestingly, the search warrant in Carlton used broader language than the affidavit supporting the warrant. However, there was probable cause there, as well as here, for issuance of a warrant to search for “all controlled substances” despite the fact that the affiant’s personal knowledge may have been limited to one particular contraband substance.

As emphasized by the United States Supreme Court, the task of the judge issuing the warrant

is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, .. . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the [judge] had a ‘substantial basis for ... concluding]’ that probable cause existed.

Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, 548 (1983). I think that the judge authorizing the search warrant here could have reasonably inferred from the fact that cocaine was being sold that there might also be other contraband on the premises. See, e.g., State v. Hamilton, 236 N.W.2d 325 (Iowa 1975). In any event, justice is not served by suppressing the cocaine seized from the premises.

I disagree with the holding in Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980), petition for review denied, 399 So.2d 1146 (Fla.1981), as I think it represents an unnecessarily strict construction of the Florida and federal constitutions.

I would affirm the trial court’s denial of the motion to suppress. Therefore, I respectfully dissent.

ON MOTION FOR REHEARING, MOTION TO CERTIFY CONFLICT, AND MOTION TO STAY MANDATE

PER CURIAM.

The state’s motion for rehearing is denied, but its motion to certify that our decision is in direct conflict with Carlton v. State, 418 So.2d 449 (Fla. 5th DCA 1982), and its motion to stay issuance of the mandate is granted.

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

SCHEB, J., concurs specially.

SCHEB, Judge,

specially concurring.

While I adhere to the views expressed in my dissent, I, nevertheless, concur in denying the motion for rehearing, because it merely re-argues the merits of the court’s decision, contrary to Florida Rule of Appellate Procedure 9.330. See Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983).

I also concur in granting the motion for certification and to stay issuance of the mandate.

      . The search warrant here is not overbroad on its face. All controlled substances are listed in § 893.03, Fla.Stat. (1981). As a result, the executing officer’s discretion is adequately limited in that the lists of controlled substances in § 893.03 delineate the scope of the search.

      . The state cites Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) 33 Crim.L.Rptr. 3109, evidently for the argument that the United States Supreme Court has relaxed certain requisites for a showing of probable cause. However the Court in Gates continues to emphasize the need for probabilities. The Court made it clear that, although great deference should be given to the conclusions of the magistrate who-issues the warrant, he must deal in probabilities. 33 Crim.L.Rptr. at 3116.

      .One seemingly might point out that if the search warrant in question had authorized only a search for cocaine the executing officers would have been able to seize any controlled substances which they found in plain view or inadvertently while searching for cocaine. See Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). One might therefore conclude that, practically speaking, it makes no difference that the warrant here did not authorize only a search for cocaine. Although tempting, such reasoning is fallacious. If the warrant had authorized only a search for cocaine, the seizure of other drugs found in plain view or inadvertently would have been clearly proper since the searching officers would have gained entry onto the premises pursuant to a valid warrant. Indeed, such was the case in Alford Under our facts, however, the officers did not gain entry pursuant to a valid warrant. Thus, they did not have a right to be there to search for anything.


author: HOBSON, Acting Chief Judge.

text:
    Robert BOLAND, Appellant, v. SUNCOAST RENT-A-SCOOTER, INC., Robert Leo Jean and ABC Insurance Company, Appellees.
    No. 82-2612.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 27, 1983.
    Edward F. Gerace, Tampa, for appellant.
    John L. Waller, St. Petersburg, for appel-lee Suncoast Rent-A-Scooter, Inc.
   HOBSON, Acting Chief Judge.

Appellant, Robert Boland, appeals the trial court’s final judgment based on a directed verdict entered in favor of appellee, Sun-coast Rent-A-Scooter, Inc. We reverse and remand for further proceedings.

Timothy Morrison rented from appellee, Suncoast Rent-A-Scooter, Inc., d/b/a Sun-coast Rentals (hereinafter “Suncoast”), a motorboat to be used on the inland waters of Boca Ciega Bay located in Pinellas County, Florida.

The testimony shows that at approximately 1:30 p.m. on July 29,1979, the rental boat was occupied by four individuals when it was involved in an accident with a swimmer, appellant. The evidence presented below by appellant shows that a Robert Leo Jean was at the controls of the boat at the time of the accident, not Timothy Morrison, the person to whom the boat was rented. The boat struck appellant when he surfaced from a dive off a dock belonging to a local tavern. Appellant suffered lacerations to his right forearm, was taken to a local hospital and later released.

After the accident, appellant brought suit against Suncoast, Robert Leo Jean and ABC Insurance Company, alleging that the driver of the boat operated it in a negligent, careless and reckless manner, and that Sun-coast rented the boat to the parties when it knew or should have known that they were under the influence of intoxicating beverages.

At trial, appellant’s witness, Ira Stephenson, testified that he observed the accident from the shore. Stephenson stated that the occupants of the boat appeared to be “high” but he went on to say he could not tell whether they could be considered “drunk” without administering a sobriety test. Appellant also presented testimony of another witness, Leo Jean, who was an occupant of the boat. Leo Jean, the brother of the driver of the boat in the accident, testified that at the time the boat was rented, the individual renting the boat, Morrison, was “visibly drunk” and was “staggering.” At the conclusion of appellant’s case, which consisted of the testimony of Ira Stephenson, Leo Jean and appellant, appellee Sun-coast moved for and was granted a directed verdict in its favor, in spite of appellant’s argument that section 327.32, Florida Statutes (1981), is not designed to insulate from liability the owner of a vessel under a theory of negligent entrustment.

The issues on appeal are whether section 327.32 immunizes a vessel’s lessor from liability for injuries caused to a third party and whether the trial testimony created a question for the jury.

We hold that section 327.32 does not immunize a vessel’s lessor from liability for injuries to a third party and that the trial testimony did indeed create a question for the jury.

Our holding is based on the authority of Cashell v. Hart, 143 So.2d 559, 561, n. 4 (Fla. 2d DCA 1962), wherein this court stated:

Fla.Stat. § 371.52 F.S.A. [renumbered 327.32, Florida Statutes (1981)] was enacted to take effect July 1, 1959, several months after the incident here involved. This section declares, as a matter of public policy, that motorboats are dangerous instrumentalities. Although this statute purports to relieve the owner of vicarious liability unless he is present in the boat, it does not attempt to relieve him from liability for his own negligence in knowingly permitting unqualified persons to operate the boat. In any event, the substantive law of admiralty is controlling in maritime cases.

The Cashell case involved injuries suffered by a minor who was an occupant of a boat operated by the minor daughter of the defendant, Hart, who owned the vessel.

This court discussed the complaint, vis a vis, the defendant Allen Hart, and stated in its decision that the complaint alleged in essence that said defendant knew or should have known that the operator of the vessel was inexperienced and incompetent as a navigator, and notwithstanding that fact, Hart permitted her to operate the boat when she negligently caused plaintiff’s injuries. The court stated that it found no “fatal deficiency in this complaint as applied to Allen Hart.” Id. at 561. The court also stated, “nor does it clearly appear that no competent evidence could have been adduced in support of the described allegations.” Id.

In discussing the adequacy of the pleadings, the court pointed out that a vessel owner’s liability may be predicated on his negligence in entrusting his vessel to an incompetent operator and distinguished section 327.32, which at the time of the accident had not gone into effect. It distinguished the statute by holding that it did not provide a defense to an action predicated on negligent entrustment.

Although Cashell stands for the proposition that an owner is liable for negligently entrusting his vessel to an incompetent operator, the court’s discussion of the statute was obiter because the statute was not in effect at the time of the accident. However, this court’s discussion of the statute gives a reasoned insight into whether that statute would provide a valid defense to a vessel owner, where the allegations and proof are that the vessel owner negligently entrusted his vessel to an incompetent operator.

We are convinced that the allegations of the instant complaint, in the light of subsequent proceedings, sufficiently posed material issues of fact which could have been resolved against Suncoast. Therefore, it was error to direct a verdict in favor of appellee prior to the submission of evidence at trial. See Cashell at 562.

REVERSED and REMANDED for further proceedings.

CAMPBELL and SCHOONOVER, JJ., concur.


author: ANSTEAD, Chief Judge. DOWNEY, Judge,

text:
    Joseph R. LAIRD and Dolores Laird, his wife; Rick Enterprises, Inc.; the Mirror, Inc.; William Falkowski and Irene Falkowski, his wife; and Andrew Dziadon and Frances Dziadon, his wife, Appellants, v. DIVISION OF ADMINISTRATION, State of Florida, Department of Transportation, Appellee.
    No. 81-484.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    Rehearing Denied Nov. 15, 1983.
    James A. Scott of Tripp, Scott, Conklin & Smith, Fort Lauderdale, for appellants.
    Margaret-Ray Kemper, Appellate Atty., Ella Jane P. Davis, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellee.
   ANSTEAD, Chief Judge.

We affirm the trial court’s judgment denying appellants’ claim of inverse condemnation. We believe the trial court’s determination that Pembroke Road in Broward County was a state road for purposes of effecting the reservation of an easement in favor of the state in a 1944 deed issued to appellants’ predecessor in title is supported by competent substantial evidence and is consistent with pertinent statutory provisions concerning state roads and rights of way. The trial court concluded that Pembroke Road had been specifically established by legislative act as a state road several years before the 1944 deed was issued; that Pembroke Road had existed at the location set out by the legislature for many years prior to the legislative designation; and that the 1944 deed specifically reserved the state’s rights in Pembroke Road now challenged by the appellants. While the statutes defining state roads for various purposes are somewhat ambiguous, we do not believe the trial court’s conclusions are inconsistent with those provisions insofar as they affect the issue of whether the state’s interest in Pembroke Road was preserved by the 1944 deed. Cf. §§ 320.-01(17), 341.28, 341.47 and 341.60, Fla.Stat. (1941).

While we have concluded that the trial court acted correctly, we believe the statutory provisions sufficiently uncertain, and the issue decided to be sufficiently important, that we certify the following question to the Supreme Court:

Was it necessary, under the statutory scheme in existence prior to the issuance of the 1944 deed involved herein, for the State of Florida to have surveyed and fixed the line of a road, and filed such survey with the Clerk of the Circuit Court of the county where the road was located, before the road in question could be officially classified as a state road?

HURLEY, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge,

dissenting.

As I understand this record, when the Everglades Drainage District conveyed the property in question to Johnson (appellant’s predecessor in title) in January, 1944, Pembroke Road was not a state road as defined in Section 341.28, Florida Statutes (1941). In order to be classified as a state road, it must have been designated as such by the Legislature and the location of the line and right of way must have been surveyed and fixed upon by the [State Road] Department or its duly authorized engineers and representatives. Thereafter, a certified copy of the plat of such survey was required to be filed in the office of the Clerk of the Circuit Court in the county where the road existed. In 1944 the line of the road had not been surveyed or fixed by the department. This was not done until 1975. Therefore, the reservation in the Johnson deed reserving unto the State of Florida an easement 200' wide, lying 100' on each side of the center-line of any state road existing on the date of the deed should not affect appellant’s property.

Given the foregoing, it appears to me that appellants were entitled to compensation for the property taken.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Amilcar Jose RODRIGUEZ-JIMENEZ and Aguedo Borrego-Estrada, Appellees.
    No. 83-161.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Nov. 17, 1983.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellant.
    Roy E. Black and Guy W. Turner, Nathan & Williams and Douglas L. Williams, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The State appeals from an order dismissing the conspiracy count of an indictment on the ground that it is so vague as to not fairly apprise the defendants of the charge against them. We reverse and remand with directions that the count be reinstated.

The dismissed count reads in its entirety:

“The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths present that AMILCAR JOSE RODRIGUEZ-JIMENEZ, also known as JAVIER RODRIGUEZ, also known as SELIMO S. GARCIA, also known as “RAFAEL,” and AGUEDO BORREGO-ESTRADA, also known as “CACHO,” and WINSTON SALAVER-RIA, hereinafter referred to as the Defendants, along with Armando Gonzalez and Miriam Borrego named herein as Co-Conspirators but not as Defendants and others known and unknown to the Grand Jury commencing on or about the 29th day of September, 1979 and continuing through or about the 3rd day of October, 1979, within the County of Dade, State of Florida, did unlawfully and feloniously agree, conspire, combine or confederate together and with one another, to commit a felony under the laws of the State of Florida, to wit: FIRST DEGREE MURDER, by unlawfully and feloniously agreeing, conspiring, combining or confederating together with one another to unlawfully and from a premeditated design to effect the death of RAIMUNDO MARTINEZ with a deadly weapon, to wit: A FIREARM, to wit: A PISTOL, which act is prohibited and declared to be a felony by Florida Statutes 782.04, 775.-087 and 777.011.
“That is to say, that during the period of time commencing on or about the 29th day of September, 1979, and continuing through or about the 3rd day of October, 1979, the Defendants along with Armando Gonzalez and Miriam Borrego named herein as Co-Conspirators but not as Defendants and others known and unknown to the Grand Jury, did conspire, combine, or confederate together and with one another and did discuss specific details, including, but not necessarily limited to: inducing the victim, RAIMUNDO MARTINEZ, to participate in a narcotic sale with the Defendants and Co-Conspirators for the purpose of murdering RAIMUN-DO MARTINEZ; arranging the places and times where RAIMUNDO MARTINEZ was to meet and have the narcotics delivered and be murdered; shooting and killing RAIMUNDO MARTINEZ; and the means by which the body of RAIMUNDO MARTINEZ was to be disposed of. Moreover, to effect the object of this conspiracy, the Defendants along with Armando Gonzalez and Miriam Bor-rego named herein as Co-Conspirators but not as Defendants and others known and unknown to the Grand Jury, did, on various occasions throughout the period of time herein stated, reach agreement together and with one another to murder RAIMUNDO MARTINEZ as the object of the aforesaid conspiracy in violation of Florida Statute 777.04, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.”

The defendants successfully contended below, and contend here, that the conspiracy charge is in all respects similar to the charges found wanting in Goldberg v. State, 351 So.2d 332 (Fla.1977); Battle v. State, 365 So.2d 1035 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 76 (1979); and State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978). We disagree.

The conspiracy charges in Goldberg, Battle and Giardino were found to be insufficient to inform the defendants of the accusation against them, essentially because in each of those cases the defendants were charged with alternative conspiracies. See State v. Casesa, 392 So.2d 1022 (Fla. 5th DCA 1981); State r. Segura, 378 So.2d 1240 (Fla. 2d DCA 1979). Thus, in Goldberg, the critically defective allegation was that the defendants “did conspire . .. with Roth-stein or ... MacLean, or both” (emphasis supplied); in Battle, that the defendant conspired with “one Julio Acuno [sic] or Carlos Hernandez, or both, or other persons unknown” (emphasis supplied). The essential vice of the conspiracy charge in Giardino was that the objects of the conspiracy were alleged in the alternative, thus making it

“impossible to determine the unlawful object of the charged conspiracy, [and moreover] . . .
“impossible to determine the nature of the charged conspiracy to wit; whether the defendant Giardino in concert with his co-defendants (a) accepted, or (b) agreed to accept, or (c) requested or solicited, a certain sum of money from (a) Kozich and Kozich, Inc., Don Thomas Ko-zich, and Ronald Joseph Flory, jointly, or (b) Kozich and Kozich, Inc., individually, or (c) Don Thomas Kozich, individually, or (d) Ronald Joseph Flory, individually, for the purpose of having the defendant Giardino and the co-defendant Tresvant vote as Opa Locka city commissioners in favor of (a) awarding a contract for the construction of a public works building for the City of Opa Locka to Kozich and Kozich, Inc., or (b) approving change orders submitted by Kozich and Kozich, Inc. in connection with the construction of the above-mentioned public works building, or (c) both awarding the above-stated contract and approving the above-stated change order.” Id. at 203-04 (emphasis supplied).

The conspiracy charge in the present case alleges neither alternative conspiracies nor alternative objects. Instead, it charges the defendants, Rodriguez-Jimenez and Borre-go-Estrada, with conspiring with Salaverria and Gonzalez and Borrego and others unnamed; and it forthrightly charges that the object of the conspiracy was the murder of Martinez. Thus, in our view, the case before us is controlled by State v. Smith, 240 So.2d 807 (Fla.1970), rather than the Goldberg-Battle-Giardino trilogy.

In Smith, the information charged that the defendant

“did then and there unlawfully combine, conspire, agree or confederate with each other and with JAMES PURKHISER, JOHN PHILEMON LUKE II, JOHN FRANCIS HENRY and HUBERT RAY STIDHAM to commit a felony punishable by death or imprisonment for life, to-wit: First Degree Murder, in that they combined, conspired, agreed or confederated on the 5th day of December, 1965 to then and there, unlawfully and feloniously and from a premeditated design, effect the death of MIGUEL ANGEL RIVERA, a human being." 240 So.2d at 808.

Holding that the information was “sufficient to advise the Defendant of ‘the nature of the accusation against him’ ... and the accused could plead his conviction to a subsequent indictment or information based on the same facts,” id. at 810, the court explained:

“The conspiracy, which is the gist of the offense, is adequately alleged. The object or purpose of the conspiracy, to effect the death of a human being, is adequately alleged even though it does not set forth the elements of the contemplated offense with particularity and technical precision. For example, it has been held that in an indictment for murder it is essentially necessary to set forth the manner of the death and the means by which it was effected.... In charging a conspiracy to commit murder in the first degree, it is unnecessary to allege the manner or means by which the death of the victim is to be effected, for the crime of conspiracy may be committed prior to the time that the manner or means of effecting the death is determined by the conspirators. In other words, two or more persons could unlawfully combine, conspire, agree, or confederate with each other to commit murder in the first degree (thereby committing the crime of conspiracy) with the understanding that the means of accomplishing the unlawful homicide would be determined at a later date.” Id. at 810-11 (citations omitted).

The defendants’ argument that it is impossible to determine from the charge who, among the conspirators, committed the acts set forth in the second paragraph of the conspiracy count is, of course, no ground for dismissal. First, the allegations of the manner or means by which the death of Martinez was to be effected are, as Smith tells us, unnecessary to the adequacy of the conspiracy charge. Second, since under Florida law it is unnecessary to allege overt acts when charging a conspiracy, § 777.04(3); Slaughter v. State, 301 So.2d 762 (Fla.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); Etheridge v. State, 415 So.2d 864 (Fla. 2d DCA 1982); State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977); State v. Trafficante, 136 So.2d 264 (Fla. 2d DCA 1961), these allegations are superfluous and only serve to allow the defendants to more adequately prepare a defense to the charge. Third, since the gist of the offense is the conspiracy, it is immaterial whether any of the acts alleged in the second paragraph of the conspiracy count were actually committed and who among the conspirators committed them if committed. See King v. State, 104 So.2d 730 (Fla.1958). See also Smith v. State, 240 So.2d at 810-11. Therefore, the defendants, already the beneficiaries of the State’s prolixity, cannot be heard to complain that the conspiracy charge, fully sufficient to charge an offense in paragraph one, does not tell them more in paragraph two.

Accordingly, the order dismissing the conspiracy count of the indictment is reversed and the cause remanded for further proceedings.

Reversed and remanded.

      . While Giardino added that “[t]here is confusion as to the participants in, as well as the unlawful object and nature of the charged conspiracy,” because the indictment failed to identify the “other persons” with whom the named defendants conspired, it is clear that a conspiracy charge is not defective merely because the identity of other conspirators is not known, or such other conspirators are not named. “Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.” Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344, 350 (1951), and cases cited at n. 20; United States v. Booty, 621 F.2d 1291, modified and reh’g denied, 627 F.2d 762 (5th Cir.1980); United States v. Pruett, 551 F.2d 1365 (5th Cir.1977); United States v. Goodwin, 492 F.2d 1141 (5th Cir.1974). All that is required is that the evidence show that the unnamed co-conspirator did exist and that the defendant conspired with him. United States v. Pruett, 551 F.2d at 1369; United States v. Goodwin, 492 F.2d at 1144. Since these propositions are so clear and time-honored, we read this statement in Giardino as narrowly condemning a conspiracy charge where, as in Giardino, the “other persons” (there Kozich and Flory) are elsewhere named in the charge as obvious co-conspirators so that the disjunctive allegations pertaining to them rendered the conspiracy charge defective under the reasoning of Goldberg and Battle.

        . See n. 1, supra.

      . Federal law is otherwise. 18 U.S.C. § 371 (1976). See, e.g., United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied sub nom. Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980); United States v. Veltre, 591 F.2d 347 (5th Cir. 1979); United States v. Anderson, 542 F.2d 428 (7th Cir. 1976).


author: BERANEK, Judge.

text:
    H AND U FOODS, INC., d/b/a McDonald’s Restaurant, Appellant, v. Gale ELLISON, Appellee.
    No. 82-2087.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Rehearing Denied Nov. 17, 1983.
    Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellant.
    William R. Hussey, Fort Lauderdale, for appellee.
   BERANEK, Judge.

Defendant, a McDonald’s Restaurant, appeals the granting of a new trial to the plaintiff/appellee. Plaintiff fell in the defendant’s restaurant while trying to step across an empty plastic trash bag which was lying in an aisle. The bag had been placed there by an employee who was changing the plastic trash liners at the time. Plaintiff noticed that the bag was present on the floor. She attempted to step across it, and in doing so, caught her foot in the bag and fell. The case was tried primarily on the theory that plaintiff’s fall aggravated a preexisting multiple sclerosis condition. Plaintiff sought substantial damages for her resulting condition. The jury found for the defendant, McDonald’s, concluding that there was no negligence on the part of defendant which caused damage to the plaintiff. The trial court granted plaintiff’s motion for new trial. In accordance with the requirements of Rule of Civil Procedure 1.530(f), the court stated the reasons for the new trial in its order. The order notes that there was sufficient evidence from which the jury could have found that the plaintiff’s multiple sclerosis condition was not due to or aggravated by her fall. However, the court concluded that McDonald’s was responsible, at least in part, for the plaintiff’s fall, and that the jury had to award plaintiff at least nominal damages.

The standard of review is whether there was an abuse of discretion by the trial court in granting a new trial. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980), and Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978). This discretion is broad but it is not without bounds. We conclude that the trial court here did abuse its discretion and reverse the order granting new trial.

From the evidence, the jury could have found there was no negligence on the part of McDonald’s because there was either (1) no breach of duty or (2) no proximate cause. See Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert denied, 344 So.2d 323 (Fla.1977). There was abundant medical evidence to support a finding that the fall did not cause or aggravate plaintiff’s multiple sclerosis. Further, this jury could have concluded that McDonald’s acted with reasonable care, and that the accident was 100% the fault of the plaintiff.

The primary reason for granting a new trial, as set out in the court’s order, was the jury’s failure to award at least some damages even if nominal. We reject this reason. Compensatory damages include both actual and nominal damages. In closing argument, plaintiff’s counsel sought only actual damages for the multiple sclerosis condition. Further, the jury was not instructed on nominal damages, and the trial court’s order faulting the jury for failing to award such damages was legally incorrect and an abuse of discretion.

The order granting new trial is reversed and the matter remanded with directions to enter judgment for the defendant and for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Melvin MULLETT, Appellee.
    No. 83-773.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    Rehearing Denied Nov. 16, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    Larry Byrd of Ginsburg, Byrd, Jones & Dahlgaard, Sarasota, for appellee.
   PER CURIAM.

This case cannot be meaningfully distinguished from our recent decision in West v. State, 439 So.2d 907 (Fla. 2d DCA 1983). Therefore, we affirm upon the authority of West, thereby “pairing” the cases for possible Supreme Court review under the rationale of Jollie v. State, 405 So.2d 418 (Fla. 1981).

GRIMES, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.