text:
    STATE of Florida, Appellant, v. Lorraine L. HEPBURN, Appellee.
    No. 83-1638.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 19, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Victor O. Mead of Horvath & Mead, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order suppressing statements made to a policeman who was investigating a hit and run criminal traffic case. The trial court ruled appel-lee’s statements inadmissible in part because of a statutory exclusionary rule and in part because the state could not establish a corpus delicti before the proffer of her statements in evidence. We agree in part and disagree in part.

On August 26, 1982, three pedestrians were struck while crossing the intersection at Bumby and Miscindy Avenues in Orlando. The operator of the vehicle which struck the pedestrians fled the scene of the accident without stopping. Although there were no eyewitnesses to the accident, it was later determined that a 1978 Chevrolet Malibu registered in the name of George Hepburn struck the pedestrians.

Trooper LaForte investigated the accident for the Florida Highway patrol. At the scene of the accident, on August 26, 1982, Trooper LaForte collected some debris from the automobile which struck and injured the pedestrians. The following day, on August 27, 1982, appellee, Lorraine Lovett Hepburn, reported to the Florida Highway Patrol that she had been involved in a hit and run accident. Trooper LaForte met with appellee at the American Legion Hall in Orlando on- August 27, 1982. Ap-pellee led Trooper LaForte to a 1978 Malibu stationwagon and explained that she didn’t know where the accident happened but assumed that it happened at the American Legion Hall the night before. When appellee pointed out that a portion of the grill on the 1978 Malibu was missing and that there was damage to the hood area of the automobile, Trooper LaForte concluded to himself that this was the vehicle which was involved in the hit and run accident the previous night. Appellee did not report the accident involving pedestrians at the intersection of Miscindy and Bumby Avenues, rather she was reporting that her car had been the victim of a hit and run.

At this point, Trooper LaForte returned to his police cruiser and obtained a waiver of rights form. He returned to appellee, read her Miranda rights to her and secured her signature on the waiver of rights form. While Trooper LaForte interrogated her, appellee made certain statements linking her to the hit and run accident which injured the three pedestrians the night before. The exact content of appellee’s statements is not included in the record on appeal but it appears that these statements are confessions that appellee was driving a 1978 Chevrolet Malibu registered in the name of her ex-husband at the time the hit and run accident involving pedestrians occurred on August 26, 1982.

On November 9, 1982, the state attorney filed an amended information containing four counts. Count one charges that appel-lee struck and injured three persons while operating a motor vehicle and then fled the scene of the accident in violation of section 316.027, Florida Statutes (Supp.1982). Counts two through four are identical allegations that, at the date and time of the accident referred to in Count one, appellee operated a motor vehicle while intoxicated in violation of section 316.1931(2), Florida Statutes (Supp.1982). Subsequently, appel-lee filed two motions to suppress the statements she made to Trooper LaForte on August 27th at the American Legion Hall. The trial court suppressed appellee’s statements on two grounds. First, the lower court determined that appellee’s statements are privileged under Section 316.066, Florida Statutes (Supp.1982). Second, the court determined that the state’s evidence is insufficient to establish the corpus delicti of the offenses charged in this case and therefore appellee’s confession is not admissible against her.

Section 316.066(4), Florida Statutes (Supp.1982) provides, in part, as follows:

Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting ... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident ...

The purpose of the statutory exclusionary rule in a system which makes mandatory the filing of reports of every vehicular accident is to encourage candor in the making of such reports. State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981). According to the terms of the statute, the privilege applies to statements in an accident report made by persons involved in an accident who report that accident.

State v. Ferguson is a case almost identical to the instant one. As in this case, the state, in Ferguson, appealed a trial court order suppressing certain statements the appellee made during the investigation of a hit and run automobile accident which resulted in injury. In Ferguson,

The sole question on appeal is whether Section 316.066(4), Florida Statutes (1979) prohibits introduction in a criminal trial of statements made by an alleged hit and run driver to investigating police officers.

405 So.2d at 295. The Fourth DCA held that the statute does not confer an exclusionary privilege to statements made by an alleged hit and run driver who did not report the accident she was involved in. The court stated:

The “confidentiality” privilege conferred by this section is designed to encourage and promote the gathering of information for the purpose of documenting the nature and causes of automobile accidents. The section clearly was not intended to afford a suspected hit and run driver, whom the police eventually tracked down and questioned about the accident, with greater protection than is constitutionally required for other criminal suspects.

405 So.2d at 296 (emphasis supplied).

The only difference in the facts of Ferguson and those of the instant case is that the driver in Ferguson made no accident report at all while the driver in the instant case, appellee, reported a different alleged accident than the hit and run out of which the instant charges arise. Under the circumstances here, the statements appel-lee made regarding an accident which she was not reporting are not privileged under Section 316.066(4), Florida Statutes (Supp. 1982); appellee was not reporting the accident to which her incriminating statements related when she made those statements. In fact, appellee never reported the accident to which the statements related. The purpose of this statute is to promote candor in the making of accident reports. This purpose is not achieved where a person, rather than candidly reporting one accident, reports another in an attempt to conceal her involvement in the one.

It was error to determine that Section 316.066(4), Florida Statutes (Supp.1982) applies to the instant case. The statute only applies to statements made by a person involved in an accident who reports that accident. The statute should not apply, because it serves no purpose in such a context, to statements made during a report of one accident which link the individual to another accident which she did not report.

The second ground upon which the lower court bases suppression of the statements made by appellee to Trooper La-Forte is the state’s inability to prove the corpus delicti of the offenses charged with evidence independent of appellee’s statements. It is a correct statement of the law that before a defendant’s confession is admissible in evidence the state must prove with substantial evidence the corpus delicti of the offenses charged. State v. Allen, 335 So.2d 823 (Fla.1976); Knight v. State, 402 So.2d 435 (Fla.3d DCA 1981); Nelson v. State, 372 So.2d 949 (Fla. 2d DCA 1979), cert. denied, 396 So.2d 1130 (Fla.1981); McQueen v. State, 304 So.2d 501 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975); Farley v. City of Tallahassee, 243 So.2d 161 (Fla. 1st DCA 1971). The trial court’s conclusion that the state could not prove the corpus delicti of the offenses charged with evidence independent of ap-pellee’s statements is a correct determination as to Counts II, III and IV of the amended information but is error with respect to Count I.

Counts II, III and IV of the amended information are identical allegations charging appellee with driving a motor vehicle while intoxicated in violation of Section 316.1931(2), Florida Statutes (Supp. 1982). A, if not the, critical element of the corpus delicti of the offense of driving while intoxicated is evidence that the defendant was driving at the time she allegedly committed the offense. Farley v. City of Tallahassee, 243 So.2d 161 (Fla. 1st DCA 1971). In Farley, the First DCA reversed a conviction of driving while under the influence of alcohol where there was no evidence, absent defendant’s own statement made at the time of his arrest, which placed defendant behind the wheel of an automobile at the time he allegedly committed the offense. Similarly, in the case at bar, there is evidence that appellee consumed alcoholic beverages at a time on August 26, 1982 before the pedestrians were struck in an intersection, there is also evidence that appellee was in possession on the day after the accident of the automobile which struck the pedestrians, but since there were no eyewitnesses to the accident and since the pedestrians did not know what hit them, there is no evidence which places appellee behind the wheel of the automobile which struck the pedestrians at the time the accident occurred. Without the statements appellee apparently made to Trooper LaForte on the day after the accident, there is no evidence that appellee was driving at the time she allegedly committed the offenses charged. Since the state cannot prove the corpus delicti of Counts II, III and IV of the amended information with evidence independent of the statements ap-pellee made to Trooper LaForte on August 27, 1982, the trial court properly suppressed appellee’s statements with respect to these three counts.

Count I of the amended information charges appellee with leaving the scene of the accident with injuries in violation of Section 316.027(1), Florida Statutes (Supp.1982). As stated in Sciortino v. State, 115 So.2d 93, 95 (Fla. 2d DCA 1959) and applied in Nelson v. State, 372 So.2d 949 (Fla. 2d DCA 1979), cert. denied, 396 So.2d 1130 (Fla.1981), the corpus delicti of a crime consists of two elements: one, proof that a crime has been committed and two, proof that some person is criminally responsible for the act. Applying this definition, to establish the corpus delicti of leaving the scene of the accident with injuries in the instant case the state must prove that the pedestrians were struck by an automobile which fled the scene. The state can prove that the pedestrians were struck by an automobile which fled the scene with evidence independent of appel-lee’s statements. The Supreme Court of Florida stated in State v. Allen, 335 So.2d 823 (Fla.1976), that the state may prove the corpus delicti of an offense with circumstantial evidence. Since the state can prove the corpus delicti of the crime of leaving the scene of an accident with injuries with evidence independent of the statements appellee made to Trooper LaForte on August 27, 1982, it was error for the lower court to suppress appellee’s statements with respect to Count I of the amended information.

The order of the lower court suppressing the statements appellee made to Trooper LaForte on the day following the hit and run accident involving pedestrians at the intersection of Miscindy and Bumby Avenues in Orlando is affirmed with respect to Counts II, III and IV of the amended information but reversed with respect to Count I. This cause is remanded for trial.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

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

      . Since the exact statements which appellant made to Trooper LaForte are not included in the record on appeal it is difficult to be certain whether her statements are confessions or merely admissions against interest. However, since appellant made her statements to a police officer it is most likely that they are confessions. See Nelson v. State, 372 So.2d 949 (Fla. 2d DCA 1979), cert. denied, 396 So.2d 1130 (Fla.1981).


source: Caselaw Access Project

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

license: Public Domain

text:
    Charles Revere BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 84-262.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 19, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Charles Brown appeals his sentence for arson contending it violates Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Brown was sentenced to eight years imprisonment followed by seven years probation. The trial court overruled appellant’s objection to the split sentence stating that Villery had been statutorily abolished by the legislature when it enacted chapter 83-131, the Correctional Reform Act. of 1983. The Act created section 921.187, Florida Statutes, which reads in part as follows:

Disposition and sentencing; alternatives. —The following alternatives for the disposition of criminal cases shall be used in a manner which will best serve the needs of society, which will punish criminal offenders, and which will provide the opportunity for rehabilitation. The court may:
* * jfc * ⅜ *
(7) Impose a split sentence whereby the offender is to be placed on probation upon completion of any specified period of such sentence, which may include a term of years or less. (emphasis added)

In addition, section 948.01(4) was amended by chapter 83-131 and renumbered as subsection (8). This subsection now reads as follows:

Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation or, with respect to any such felony, into community control upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant and direct that the defendant be placed upon probation or into community control after serving such period as may be imposed by the court. The period of probation shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances. (emphasis added)

While we have found no cases so holding, it appears that chapter 83-131 does abrogate the holding in Villery. We conclude, however, that the change cannot be applied retroactively.

The crime for which appellant was sentenced was committed prior to October 1, 1983, the effective date of the Act. In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981), the United States Supreme Court held that “even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [ex post facto] clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” While it is often difficult to determine whether a sentencing alternative is more onerous than a previous one, here appellant would be subject to a longer term of imprisonment under the new split sentence alternatives in chapter 83-131. Since the new sentencing alternatives are more onerous to appellant, they should not have been applied and appellant should have been sentenced in accordance with Villery.

REVERSED and REMANDED.

DAUKSCH and ORFINGER, JJ„ concur.

      . See, e.g., Weaver v. Graham; Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Beech v. State, 436 So.2d 82 (Fla.1983).


author: WIGGINTON, Judge.

text:
    Osborne Fredrick HALL, Joseph F. Hall, Cora Hall, Appellants, v. STATE of Florida, Appellee.
    Nos. AU-32, AU-205 and AU-241.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 21, 1984.

      Elizabeth L. White and Wm. J. Sheppard, Jacksonville, for appellant Osborne F. Hall.
    Robert A. Harper, Jr., Tallahassee, for appellant Joseph F. Hall.
    David R. Fletcher, Jacksonville, for appellant Cora Hall.
   WIGGINTON, Judge.

Appellants were convicted of “setting up, promoting or conducting” lotteries in violation of section 849.09(l)(a), Florida Statutes, and have raised ten points challenging their convictions on appeal. After carefully scrutinizing the voluminous record, we find no reversible error and affirm on all points, concluding that only two of those points merit discussion.

Under point III, appellants challenge the trial court’s denial of their pretrial motion to suppress evidence obtained from the court-authorized interception of wire communications. Although the motion raised several grounds for suppression, appellants have chosen only to argue the order as it relates to the warrantless use of dialed number recorders, or pen registers. In its order the trial court observed:

Defendants next contend that the use of dialed number recorders (DNR) or pen-registers violate the Defendants’ 4th and 14th Amendment Rights to the United States Constitution. The pen-registers herein were obtained by means of Orders signed by Judges of the Fourth Judicial Circuit of Florida. The United States Supreme Court held in Smith v. Maryland, (1979) 442 U.S. 735, 99 S.[C]t. 2577, [61 L.Ed.2d 220], that pen-registers may be employed by law enforcement officers without the use of a search warrant. In Smith, the Supreme Court held that telephone subscribers and users do not enjoy any valid expectation of privacy in local telephone numbers dialed from a particular telephone facility. The Court also refused to recognize a constitutional distinction between the locan [sic] and long distance numbers. However, a close reading of the application for the Orders authorized [sic] the interception of wire communications in 82-E, 82-F, 82-G and 82-H reveals sufficient probably [sic] cause without referring to the information developed from the pen-registers.

Without reaching the constitutional dimensions of the order, we agree with the trial court’s finding that there was sufficient probable cause for the intercept orders without the information gleaned from the use of the pen registers. The initial order authorizing the wire interceptions was based on an application setting forth facts concerning the lottery operation and its principal participants, primarily from information gained from a confidential informant through his personal involvement and observation. We hold the facts in the application were sufficient, standing alone, to establish probable cause for the initial order. The subsequent orders authorizing further interception of wire communications were issued on probable cause arising from information gleaned from the initial intercept. Consequently, we find no error and affirm.

Under point X, appellants argue that the trial court erred in refusing to submit to the jury an instruction regarding the lesser offenses found in sections 849.11 and 849.-231. Section 849.11 makes it a second degree misdemeanor to set up, promote or play “at any game of chance by lot or dice, cards, numbers, hazards or any other gambling device whatever for ...,” and section 849.231 makes it a first degree misdemean- or to possess gambling paraphernalia. Appellants contend that the above-enumerated offenses are necessarily lesser included offenses of section 849.09(l)(a). We disagree.

In the case of Brown v. State, 206 So.2d 377 (Fla.1968), the supreme court defined a necessarily lesser included offense as one, without proof of which, it would be “legally impossible” to prove the major crime. Id., at 382. Accordingly, appellants submit that it was “legally impossible” for the state to discharge its burden of proof as to the charged offense of conducting a lottery, without first proving that appellants conducted individual acts of gambling or were in possession of gambling paraphernalia. We hold that both section 849.-11 and section 849.231 contain elements separate and distinct from those embraced in section 849.09(l)(a).

Section 849.11 defines a misdemean- or covering a class of unlawful activities relating to games of chance, and is aimed toward the casual or occasional act of gambling. Ferguson v. State, 377 So.2d 709 (Fla.1979); cf. Jarrell v. State, 135 Fla. 736, 185 So. 873 (1939). On the other hand, section 849.09(l)(a) is intended to prohibit the habitual conducting or promoting of a lottery. Ferguson. The supreme court concluded in Ferguson that a single act of gambling is an offense “separate and distinct” from one premised on habitualness. Id., at 711.

Similarly, the elements of section 849.231 are not necessarily included in those of section 849.09(l)(a). It does not automatically follow that one who is conducting or promoting a lottery has in his or her possession gambling paraphernalia. As in the case of section 849.11, establishing a violation of section 849.231 would require proof of elements extraneous to those of section 849.09(l)(a). Consequently, the trial court did not err in denying appellants’ proffered jury instruction.

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.

      . A dialed number recorder and a pen register are essentially similar mechanical devices which record, by electrical impulses, telephone numbers dialed from the telephone to which they are attached. Neither intercept the actual oral communication. Armstrong v. Southern Bell Telephone and Telegraph Co., 366 So.2d 88 (Fla. 1st DCA 1979); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984).


author: PER CURIAM.

text:
    Kelli Jean WESTLAKE, Petitioner, v. The Honorable Charles E. MINER, Circuit Judge, Second Judicial Circuit, In and For Leon County, Respondent.
    No. AZ-213.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 21, 1984.

      Andrew Thomas, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen. and Lawrence Ka-den, Asst. Atty. Gen., for respondent.
   PER CURIAM.

By her petition for writ of prohibition, petitioner seeks to prohibit further trial court proceedings because the time limits for speedy trial proscribed in Rule 3.191, Fla.R.Crim.P., have passed. We grant the writ, but certify a question as being of great public importance pursuant to Rule 9.030(a)(2)(A)(v), Fla.R.App.P.

Petitioner and a codefendant, Ralph Be-van, were charged in a single information with grand theft. Trial was originally set for February 29, 1984, but counsel for co-defendant Bevan filed a motion for continuance because of conflict, and waived defendant Bevan’s right to speedy trial. As a result, at a February 19, 1984, docket sounding, trial was set for April 12, 1984. Only the judge and the prosecutor were present at the February 19, 1984, proceeding. On March 23, 1984, both defense attorneys and the prosecutor were present at a second docket sounding and all parties announced they would be ready for trial on April 12. Again on March 30, 1984, counsel for petitioner announced in open court that they would be ready for trial on April 12.

On April 3, 1984, a hearing was held on defendant Bevan’s motion for continuance, the state’s motion for extension of speedy trial due to exceptional circumstances, and petitioner’s motion for severance. Petitioner’s motion for severance was based on two grounds: (1) that a joint trial would violate Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and (2) that severance was necessary to protect petitioner’s right to a speedy trial if the continuance was granted for Bevan. The judge granted Bevan’s motion for continuance and the state’s motion to extend the speedy trial time. However, he denied the motion to sever finding no Bruton violation and without commenting on petitioner’s speedy trial right.

On April 23, 1984, five days after the time for speedy trial had run, petitioner filed a motion for discharge. At a hearing on May 2, 1984, petitioner’s attorney argued that she had been continuously available for trial and that she had never waived her right to speedy trial but had in fact attempted to preserve the right by seeking a severance when her eodefendant sought an extension beyond the speedy trial time. The judge denied the motion for discharge without commenting except to note that “I want to get something clarifying out of the District Court of Appeal on this subject. I think this would probably be a good case to take up.”

The only exceptional circumstances ever asserted by the state in support of the extension of speedy trial time was that “a delay is necessary to accommodate the co-defendant Bevan, as per Rule 3.191(d)(2) and (f) of the Florida Rules of Criminal Procedure,” and that “there is ample reason not to sever the trials of Bevan and Westlake in that all testimony, witnesses and evidence is identical for the proof of each defendant’s case.”

Rule 3.191 provides in pertinent part: (d)(a). When Time May be Extended. The periods of time established by this Rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured. Such an extension may be procured: (i) upon stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, or (ii) by written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in section (f),
(f) Exceptional Circumstances. As permitted by (d)(2) of this Rule, the court may order an extension of the time periods provided under this Rule where exceptional circumstances are shown to exist.
Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court: Such circumstances include (1) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) a showing by the State that the case is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation and preparation within the periods of time established by this rule; (3) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) a showing by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial; (5) a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant; (6) a showing by the State that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise, [emphasis supplied]

The state does not contend that the circumstances described in one, two, three, four or six are present in this case. The state relies on its contention that circumstance number five is applicable to this case because the delay was necessary to accommodate the codefendant and there was reason not to sever; i.e., convenience to the state of trying both defendants at once.

The question thus becomes whether the prosecutor’s desire to try defendants together for the sake of convenience is a reason not to sever when a defendant’s right to speedy trial is at stake.

The state asserts that the issue in this case is controlled by Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980), aff’d on other grounds, 397 So.2d 663 (1981), in which this court rejected the speedy trial claim of three codefendants who had alleged that their speedy trial rights had been violated because the trial court denied their motion for severance and granted a state requested continuance. In Williams, however, there existed two exceptional circumstances other than the convenience of trying defendants together, which justified the continuance under Rule 3.191(f).

Neither can it be said that petitioner somehow acquiesced in her codefendant’s motion for continuance thereby waiving her right to speedy trial. See Gonzalez v. State, 447 So.2d 381 (Fla. 3d DCA 1984); State v. Toyos, 448 So.2d 1135 (Fla. 3d DCA 1984). On the contrary, the record reflects that petitioner promptly and expressly objected to the continuance requested by her codefendant and moved for severance partly for the purpose of preserving her right to speedy trial.

Machado v. State, 431 So.2d 337 (Fla. 2d DCA 1983), is most factually similar to the present case. There, the trial court extended Machado’s speedy trial time when his two codefendants requested an extension even though Machado expressly sought to preserve his right to speedy trial. In explaining his reasons for granting the state’s motion to extend the time on Macha-do as well, the trial judge stated:

I think there are unusual circumstances which probably require the Court to provide an in-Court interpreter, perhaps even the necessity of translation for the jury and things of that nature. Considering the time and economy involved in that, and if the cases were appropriately to be consolidated — because of those additional requirements and that in all probability consolidation will be granted, therefore it’s important to carry the cases together as far as we can ....

Id. at 338.

The Second District rejected the implication that the extension was necessary to accommodate a codefendant, ultimately holding that:

What is most important, even if appellant and his codefendants had been properly joined as defendants in the first instance, appellant would have been entitled to severance if necessary to protect his right to a speedy trial. Fla.R.Crim.P. 3.152(b)(l)(i). In other words, a defendant’s right to a speedy trial takes precedence over the mere convenience to the state of trying him and his codefendants together.

Id. at 339.

Rule 3.152, Fla.R.Crim.P., provides that the court shall order a severance of defendants upon a showing that such order is necessary to protect a defendant’s right to speedy trial. Thus, when Rule 3.152 and Rule 3.191 are read in pan materia, we must conclude that the convenience of a joint trial is not an exceptional circumstance justifying a state’s motion for extension of the speedy trial time.

However, because of the comparative lack of precedent for our holding, and because we perceive the issue presented here as one which arises frequently, causing considerable impact on the administration of criminal proceedings in the circuit courts, we certify the following to be a question of great public importance:

Is the convenience to the state of trying codefendants together a sufficient reason in and of itself to extend an objecting defendant’s speedy trial time and deny a motion to sever when a delay is necessary to accommodate a codefendant?

Petition for writ of prohibition is granted, and this cause is remanded to the Circuit Court with instructions to discharge the petitioner.

SMITH, JOANOS and ZEHMER, JJ„ concur.

      . Prohibition is an appropriate remedy when a motion for discharge has been denied, and an accused has been denied his rights to speedy trial. Sherrod v. Franza, 427 So.2d 161 (Fla.1983).

      . There is no written motion for continuance in this record other than the February 16 motion asserting conflict with the February 29 trial date. However, the transcript of the April 3 hearing reveals that all parties were aware that Bevan’s attorney was trying a case before Judge Miner that was going longer than had been anticipated so that neither the judge nor Bevan’s attorney were going to be available for an April 12 trial.

      . In Williams, one of the state’s key witnesses was unavailable and one of the three codefend-ants was too ill to be present at trial within the speedy trial period. See 3.191(f)(i).

      . Rule 9.030(a)(2)(A)(v), Fla.R.App.P.


author: THOMPSON, Judge. SMITH, Judge,

text:
    ORLANDO WASTE PAPER COMPANY and Johns Eastern Company, Appellants, v. Bobby MEADOWS (Deceased), Cathy Meadows (Wife), and Bobby Meadows, III (Son), Appellees.
    No. AW-82.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Rehearing Denied Jan. 3, 1985.
    Robert C. Cooper and Robert A. Donahue of Cooper, Rissman, Weisberg & Jeffery, Orlando, for appellants.
    James M. Magee of Neduchal & Magee, Orlando, for appellees.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal an order awarding death benefits to appellees, the wife and son of the deceased employee. The deputy commissioner (deputy) found: (1) that despite a blood alcohol level of .149%, intoxication was not the primary cause of the accident which resulted in the employee’s death, and (2) that the presumption created by § 440.09(3), Fla.Stat. that the employee’s death was occasioned primarily by his intoxication was successfully rebutted by appellees. Appellants urge that the deputy erred in awarding death benefits as there was no competent substantial evidence to support the finding that the statutory presumption was properly rebutted. We agree and reverse the award.

Bobby Meadows was killed October 7, 1982 when the fork lift he was driving in the course of his employment went off the edge of a loading dock, pinning him beneath it and fracturing his skull. Meadows had driven the fork lift up a ramp to set a bale of waste paper on the loading dock. He then backed up his fork lift to turn and go back down the ramp. For no apparent reason, rather than turning, he drove backwards off the edge of the loading dock.

A fellow employee testified that on the morning of the day of the accident, Meadows and he bought three beers each, and drank them before noon. At lunch Meadows told him he was going to get a half-pint of gin, and later that afternoon Meadows shared gin and grapefruit juice mixed in a gin bottle with him. Meadows and the employee had drunk together on the job before, and Meadows had been reprimanded approximately five months prior to the accident for bringing beer onto the premises.

Two witnesses who observed Meadows briefly before the accident occurred stated that he did not appear intoxicated. However, the employee who had shared the beer and gin with Meadows earlier said that shortly before the accident he could tell Meadows had been drinking. A blood alcohol toxicology study performed as part of the autopsy showed Meadows’ blood alcohol level to be .149% at the time of his death. The E/C controverted the claim* filed on behalf of Meadows’ widow and child on the ground that the blood alcohol level of the decedent should vitiate the claim.

Section 440.09(3), Florida Statutes (1979), provides in part:

If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee’s blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee.

The only evidence presented by appellees to rebut this presumption was the testimony of two witnesses, who observed Meadows only briefly, that he did not appear intoxicated. Meadows’ widow also testified that he could “hold his liquor.” The deputy found that Meadows was intoxicated, but went on to find that appellees’ evidence had successfully rebutted the presumption raised by the statute. We cannot agree.

There was undisputed testimony that on the day of the accident Meadows had been drinking. There was also testimony by a co-worker that he could tell Meadows had been drinking, that he seemed “high,” and that his eyes looked “glossy.” Two witnesses who drove the fork lift prior to the accident stated that there was nothing wrong with the brakes or steering. A private investigator who examined the fork lift shortly after the accident on behalf of the appellees found nothing wrong with it. An OSHA investigator examined the site of the accident, but did not issue a citation.

The appellees did not prove any cause of the accident separate and independent of the employee’s intoxication as in City of Tampa v. Green, 390 So.2d 1220 (Fla. 1st DCA 1980), nor did they show that the accident would have occurred regardless of the employee’s intoxication as in R.P. Hewitt & Associates of Florida v. Murnighan, 382 So.2d 353 (Fla. 1st DCA 1980). The evidence required to rebut the presumption is not limited to these two particular types, but it is clear that a mere conclusion, which was controverted, that the employee did not appear intoxicated is not the type of “substantial evidence to the contrary” required by the statute. Similarly, testimony that the employee could hold his liquor falls short of being substantial evidence that the injury was not primarily occasioned by the employee’s intoxication.

Appellees challenge the deputy’s admission of the results of the blood alcohol test. This alleged error was not properly raised by cross-appeal. Even if this issue had been properly raised, the totality of the circumstances here would not demonstrate sufficient lack of trustworthiness to warrant reversal of the ruling of admissibility. It is within the deputy’s discretion to determine the reliability of the test. City of Tampa v. Green, 390 So.2d at 1221. In the present case the depositions of the doctor who performed the autopsy and of the toxicologist who performed the test were in evidence, as were the autopsy report, narrative summary, certificate of death, and toxicological analysis. The testimony in the depositions reveals that the doctor and toxicologist were occasionally unable to recall specific details about the taking and testing of the- blood samples, but the weight of the testimony and documentary evidence does not demonstrate that the deputy incorrectly assessed it as being reliable.

REVERSED.

BOOTH, J., concurs.

SMITH, J., concurs in part & dissents in part.

SMITH, Judge,

concurring in part and dissenting in part:

I agree with the majority’s disposition of the issue concerning admission of the results of the blood alcohol test. Having said that, however, I strongly disagree with the majority’s conclusion that the deputy commissioner erred in finding that the death of Bobby Meadows was not caused primarily by his intoxication. Competent, substantial evidence supports the deputy commissioner’s conclusion on this issue, and should mandate our affirmance of his order.

It is important to keep in mind the appropriate standard for our appellate review of a case such as this. It is a truism in workers’ compensation law, but one which bears repearing nonetheless, that our only concern is whether a deputy commissioner’s findings of fact are supported by competent, substantial evidence. Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965). The question of whether we, as a reviewing court, would have reached the same conclusion as the deputy commissioner “is not determinative of our inquiry” as to the sufficiency of the evidence supporting the deputy’s findings. Overholser Construction Co. v. Porter, 173 So.2d 697, 699 (Fla.1964). Rather, we may not reject these findings absent a clear showing of error. Tampa Bay Moving Systems, Inc. v. Frederick, 433 So.2d 628 (Fla. 1st DCA 1983). In examining these findings, we must view the facts in the light most favorable to the prevailing parties below, in this case, the claimant’s surviving widow and dependent child. B & B Cash Grocery Stores v. Wortman, 431 So.2d 171 (Fla. 1st DCA 1983), pet. for rev. den., 440 So.2d 351 (Fla.1983). Finally, the deputy’s factual findings, and the inferences derivable therefrom, must be upheld if permitted by any reasonable view of the evidence. Orange City Water Co. v. Barkley, 432 So.2d 698 (Fla. 1st DCA 1983).

Contrary to the majority’s opinion, the claimant’s rebuttal evidence was not confined to the “mere conclusion” by two witnesses that Meadows did not appear intoxicated, together with testimony that Meadows could “hold his liquor.” It is clear from the deputy’s order, as well as from the totality of the evidence adduced below, that the deputy commissioner did not make his ruling regarding the causation issue in a vacuum. Rather, the deputy weighed this evidence along with other evidence of record establishing Meadows’ appearance and actions on the day in question, as well as the testimony regarding the manner in which the accident occurred, in order to arrive at the ultimate finding of fact that Meadows’ death was not caused primarily by his intoxication. In overruling the deputy commissioner, the majority in effect usurps the fact-finder’s function.

In essence, the majority’s opinion, in holding that the evidence, as a matter of law, does not overcome Section 440.09(3)’s presumption, implies that the accident Meadows suffered is of the kind that does not occur in the absence of intoxication. The evidence adduced below as well as common knowledge belies any such notion as a viable statement of the law governing these circumstances. At the time of his death, Meadows was operating a forklift, a dangerous machine, in inherently dangerous surroundings where an accident could easily occur. There were no guardrails or other devices to either impede the movement of the forklift or serve as a warning of its dangerous proximity to the edge of the loading dock. See, R.P. Hewitt & Associates of Florida v. Murninghan, supra, at 355. Moreover, the deputy visited the scene of the accident and heard testimony from witnesses that Meadows was operating the forklift in an ordinary manner, with no evidence of horseplay, deviation from job requirements, nor any uncoordinated actions by Meadows indicative of intoxication. Finally, the testimony below established that Meadows attempted to leap from the forklift just prior to its fall off the loading dock, which the deputy was entitled to infer indicated Meadows’ awareness of his actions, rather than his being in an intoxicated stupor.

In effect, the majority has adopted a per se rule barring a claimant from recovering benefits any time his blood alcohol level is .10 or above, thereby attributing the claimant’s injury in all instances to his presumed intoxication. This view of the law regarding Section 440.09(3) is erroneous. The presumption contained in section 440.-09(3) is meant to serve as a device to protect an employer/carrier from the unfairness of paying benefits to a claimant with the requisite blood alcohol level where the producing cause of the accident is questionable, as where a claimant is injured in an unusual manner without any witnesses to the accident. This was precisely the situation involved in C.A. Meyer Paving and Construction v. McFalls by McFalls, 453 So.2d 912 (Fla. 1st DCA 1984), where the employee was killed in a single car accident with no direct evidence to establish what caused the accident, and no eye witness evidence to rebut the presumption of intoxication. Hence, the McFalls claimant had only circumstantial evidence to rebut the statutory presumption of intoxication, which this court found insufficient. Here, on the other hand, the deputy commissioner had before him direct evidence of how much Meadows drank prior to his accident, his tolerance for liquor, evidence of his appearance and actions during the entire working day, and whether or not he gave any indication by his appearance or actions that his control of the forklift was affected by intoxication at the time of the accident. See Ehrhardt, Florida Evidence, § 701.1 (2d Ed.1984) (upon proper predicate, lay testimony admissible, to prove intoxication or nonintoxication, in the form of observations as to physical appearance as well as opinions on intoxication). The abundance of evidence favorable to the claimants is especially significant when it is remembered that the issue is not simply whether there was evidence of intoxication, but whether the accident was “occasioned primarily” by intoxication. Section 440.09(3). Hence, it is clear that competent, substantial evidence supports the deputy’s finding that Meadows’ accident was not caused primarily by intoxication. See also Hacker v. St. Petersburg Kennel Club, 396 So.2d 161, 162 (Fla.1981) (“marginal” cases should be decided in claimant’s favor).

The issue of the admissibility of the blood alcohol test conducted on Meadows subsequent to his death was not preserved by appellees for appellate review. Nealy v. City of West Palm Beach, 442 So.2d 273 (Fla. 1st DCA 1983). Accordingly, I join in that part of the majority opinion. However, I dissent from the remainder of the opinion, and would affirm the order appealed from below in its entirety.


author: GRIMES, Acting Chief Judge.

text:
    H.J. WILSON COMPANY, INC., a Florida corporation, Petitioner, v. Bert H. COLLOM as the Personal Representative of the Estate of April Collom, Deceased, and the Estate of Judith Collom, Deceased; City of St. Petersburg, a municipal corporation and a subdivision of the State of Florida; Jack J. Holton; and Excelsior Insurance Company of New York, Respondents.
    No. 84-2354.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1984.
    Rehearings Denied Dec. 21, 1984.

      John T. Allen, Jr. of John T. Allen, P.A., St. Petersburg, for petitioner.
    Donald W. Griffin, Tampa, for respondent Bert H. Collom.
    William N. Drake, Jr., St. Petersburg, for respondent City of St. Petersburg.
    Donald M. Spangler, St. Petersburg, for respondents Jack J. Holton and Excelsior Ins. Co. of New York.
   GRIMES, Acting Chief Judge.

This is a petition for writ of certiorari from an order denying a motion to dismiss a third party complaint.

During a period of localized flooding, Judith Collom and her daughter, April, were walking across private property in St. Pe-tersburg. They stepped into a storm sewer drainage ditch located on a city drainage easement and were sucked into a pipe and drowned. Bert Collom, as personal representative, brought a wrongful death action against the city, Jack J. Holton and H.J. Wilson Company, Inc., asserting that they had negligently caused the death of his wife, Judith, and his daughter, April. On April 8, 1980, Wilson obtained a final summary judgment against Collom. On appeal, this court affirmed that judgment on March 4, 1981. Collom v. H.J. Wilson Co., 396 So.2d 1238 (Fla. 2d DCA 1981).

In the meantime, on August 21, 1980, Holton filed a motion for leave to file a third party complaint against Wilson. The proposed third party complaint attached to the motion alleged that Wilson had negligently caused the condition which resulted in the Colloms’ deaths and sought contribution and indemnity. The motion for leave to file third party complaint was not heard until June 24, 1981, when it was denied by a new judge who had been assigned to the case. Holton did not seek to appeal that order.

The trial against the remaining defendants was delayed pending appellate activity on other issues. See City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), approving Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981). On July 24, 1984, Holton filed a motion for reconsideration of his motion for leave to file a third party complaint. Pursuant to stipulation of the parties then in the suit, a third judge more recently assigned to the case entered an order granting Holton the right to file a third party complaint against Wilson. The complaint was identical to the one attached to his original motion for leave to file third party complaint. The case was then set for trial on December 3, 1984. The court denied Wilson’s motion to dismiss the third party complaint on October 3, 1984. This petition is directed to the order of denial.

Both theories of the third party complaint were predicated on allegations of Wilson’s negligence in causing the Colloms’ deaths. Yet, the final summary judgment of April 8, 1980, exonerated Wilson for negligently causing the Colloms’ deaths. The judgment entered in favor of his code-fendant was binding on Holton. Sol Walker & Co. v. Seaboard Coast Line Railroad, 362 So.2d 45 (Fla. 2d DCA 1978). Holton could have appealed the judgment in favor of Wilson. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980). Since he failed to do so, he cannot now proceed against Wilson for indemnity or contribution.

In seeking to avoid the effect of the judgment for Wilson against the Colloms, Holton refers to certain cases which have held that his right to appeal that judgment does not accrue until he becomes liable to the Colloms. Mercy Hospital, Inc. v. Marti, 408 So.2d 639 (Fla. 3d DCA 1981), petition for review denied, 418 So.2d 1280 (Fla.1982); Belcher v. First National Bank, 405 So.2d 754 (Fla. 3d DCA 1981). Unlike the Third District Court of Appeal, we see nothing in Pensacola Interstate Fair, Inc. which holds that a defendant must first suffer a plaintiffs judgment against him before he can complain of a ruling exonerating a codefendant from liability to the plaintiff. In Pensacola Interstate Fair, Inc., one of the appellants successfully appealed a judgment exonerating a codefend-ant which was entered seven months before the plaintiff obtained a judgment against that appellant. In the underlying opinion approved by the supreme court, the First District Court of Appeal rejected the argument that inchoate contribution claims are not justiciable by appeal until liability has been established. Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978). To adopt Holton’s view would mean that even though the judgment exonerating Wilson from liability to the Colloms was entered in 1980 and affirmed in 1981, Holton still retains the right to appeal the same judgment if the Colloms should ever obtain a judgment against him.

In any event, our ruling need not be grounded only on the judgment against the Colloms exonerating Wilson. Several months after the entry of the Wilson judgment, Holton moved for leave to file the same third party complaint as the one now in issue. The record reflects that the order denying this motion was entered on the merits. The judge had concluded that the issue was controlled by this court’s affirmance of the Wilson judgment. Since the effect of that order was to fully dispose of a claim against a party no longer in the case, it was not interlocutory and could have been appealed. See Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981). Yet, no appeal was taken.

The posture of the instant case is analogous to City of St. Petersburg v. Circuit Court of Sixth Judicial Circuit, 422 So.2d 18 (Fla. 2d DCA 1982). There, the plaintiff’s claim against the City of St. Peters-burg was dismissed, and the order of dismissal was not appealed. Eleven months later, while the suit was still pending against other defendants, the plaintiff sought to amend her complaint so as to once again sue the city. The plaintiff theorized that since the cross-claim of one of the other defendants against the city remained pending, the court had jurisdiction to reinstate the plaintiff’s similar claim against the city. On the city’s suggestion for writ of prohibition, this court said:

When a court’s jurisdiction over the subject matter is terminated, prohibition is the proper remedy to prevent further action from being taken. State ex rel. Huntley Bros., Inc. v. Gooding, 149 So.2d 55 (Fla. 1st DCA 1963); State ex rel. Seaboard Air Line R. Co. v. Kehoe, 133 So.2d 459 (Fla. 3d DCA 1961). Therefore, this case turns on whether the court lost jurisdiction to further entertain the claim of Mrs. Johnson against the city when the time for obtaining a rehearing or taking an appeal from the order dismissing that claim with prejudice expired.

422 So.2d at 19. We concluded that the order of dismissal was a final order. Consequently, we held that the court had lost jurisdiction to reinstate the claim and granted prohibition.

Since the trial court rejected Holton’s motion to file a third party complaint against Wilson in 1981, it does not now have jurisdiction to permit the prosecution of the same third party complaint three years later. Therefore, we grant certiora-ri, quash the order denying Wilson’s motion to dismiss the third party complaint, and direct that Wilson be dismissed from the case.

SCHEB and SCHOONOVER, JJ., concur.


author: COBB, Chief Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Donald T. ROBINSON, Appellee/Cross-Appellant.
    No. 83-229.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Rehearing Denied Dec. 17, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant/cross-appellee.
    Lawrence M. Litus, Melbourne, for appel-lee/cross-appellant.
   COBB, Chief Judge.

The State appeals an order of suppression entered by the trial court. The suppression was based on the trial court’s findings that a nongovernmental affiant, who supplied the essential facts for the issuance of the search warrant in this case, repudiated those facts in a subsequent video deposition. The issues on appeal concern the status and veracity of that affiant, and the applicable test to evaluate warrant affiants whose veracity is challenged.

On October 21, 1981, Officer Michael Blubaugh of the Cocoa Police Dept., submitted two affidavits as a basis for a search warrant to establish that marijuana and cocaine were being illegally kept at the residence of appellee, Donald Terry Robinson. The first affidavit was supplied by Officer Blubaugh, the second by Donald Love Martin, a private citizen.

Blubaugh’s affidavit stated, to-wit:

That on Wednesday, October 21, 1981 affiant met with a confidential informant who told affiant that he had lived in the residence occupied by DONALD TERRY ROBINSON for approximately ten (10) days in the month of June 1981 and while living there for these ten (10) days the confidential informant personally observed DONALD TERRY ROBINSON buy and sell large quantities of cocaine and marijuana. The confidential informant is familiar with both cocaine and marijuana and personally knew that the substances were cocaine and marijuana. The confidential informant stated further that during the past two years he has been to this residence on numerous occasions and during these times he has observed large quantities of marijuana and cocaine. Affiant states that on this date the confidential informant stated to him under oath in a sworn affidavit that on Tuesday, October 20, 1981 at approximately 1:00 P.M. in the afternoon he was inside of the residence and was present when DONALD TERRY ROBINSON made a sale of cocaine to a white male whose name is unknown to the confidential informant. The confidential informant further stated that he observed marijuana [sic] and cocaine inside of the house while he was there.

The affidavit of Martin stated:

That he was a guest in a house located at 1013 North Indian River Drive in the City of Cocoa, County of Brevard, State of Florida. Affiant states further that while he was staying at this house that is currently occupied by a person known to affiant as DONALD TERRY ROBINSON, a white male approximately 32 years of age, that affiant personally saw on numerous occasions DONALD TERRY ROBINSON receive and sell marijuana and cocaine. Affiant states that he stood in the same room with DONALD TERRY ROBINSON on one occasion in either June or July and personally watched him cut and bag 20 pounds of marijuana. Affiant states that he has personal knowledge of marijuana and positively recognized the substance to be marijuana. Affiant states that since that time he has been present when DONALD TERRY ROBINSON has made numerous marijuana and cocaine sales to different persons whose names are unknown to affiant. Affiant states that on Tuesday, October 20, 1981 he was in the home of DONALD TERRY ROBINSON and was present when he made a cocaine sale to a white male at approximately 1:00 P.M. in the afternoon. Affiant saw DONALD TERRY ROBINSON give the substance that he personally recognizes as cocaine to the white male. After the white male left the premises affiant observed inside of the residence both cocaine and marijuana, affiant cannot determine the exact amount that was inside of the house.
Affiant would add further that this person DONALD TERRY ROBINSON does not work and has no source of income other than selling drugs. Affiant has had personal conversations with DONALD TERRY ROBINSON and he has told affiant that this is how he makes his living, he told affiant on one occasion that he made $50,000.00 for the year of 1981 so far.
It should be noted at this point that DONALD TERRY ROBINSON is the brother-in-law of affiant and he has been in his home on numerous occasions during the past two years and knows the person on a personal basis and has had numerous personal conversations with him concerning the sale of the marijuana and cocaine. Affiant has also observed on numerous occasions [sic] large quantities of marijuana and large quantities of cocaine and has been present on numerous occasions when the sales have been made.

Based upon these affidavits, a search warrant for marijuana and cocaine was issued, resulting in the seizure of a large amount of marijuana, drug paraphernalia, and a cache of cocaine secreted in a safe in Robinson’s bedroom. On February 4,1982, an information was filed charging Robinson with various offenses of trafficking and possession.

On January 10, 1983, a videotaped deposition of Donald Martin was made in the presence of the trial judge. Martin’s deposition reiterated much of what had been stated in his affidavit. In addition, Martin explained that he was in Florida October 17 — 21,1981. The last two days of his visit he spent in Brevard County, where he stayed at the home of Robinson’s estranged wife, Margaret. During these two days, he visited Robinson twice, once on the 20th, at which time he did not go into Robinson’s home but stayed outside, and again on the 21st, when he entered into the home and stayed for approximately an hour to an hour and a half, during which time he observed a cocaine transaction. Martin further testified that Robinson had told him that he had a safe in the house, which was located in his room; that though Martin had never seen the safe, Robinson had headed to and returned from that direction when he obtained the cocaine. Martin noted that in discussion with Officer Blubaugh, he had not told the officer that he was staying with the Robinson on October 20 and 21; instead, he said that he had told him he was staying with Robinson’s estranged wife.

On January 25, 1983, Officer Blubaugh’s deposition was taken. He testified that Martin had told him that he had been in Robinson’s house several times, and that while he was living there he had seen numerous drug transactions. In addition, Blubaugh stated that Martin told him that he was living with Robinson at the time, i.e., on October 21, 1981, when the statement was given. Blubaugh further recalled that Martin had informed him that he had observed on that very day the sale of a white powdery substance that he knew to be cocaine. He also stated that Martin had explained that there was cocaine located in the safe in the home, and he later testified that Martin had said that he had seen cocaine in the safe. Blubaugh noted additionally that with reference to Martin’s mention of living with Robinson, he could not recall Martin saying how long he had lived with Robinson just prior to the affidavit, although he did recall Martin telling him that he had been living there for ten days during the month of June, during which time he saw several drug transactions.

On February 4, 1983, Robinson filed a motion to suppress, asserting that Martin had made contradictory statements under oath, thereby rendering any of Martin’s statements unreliable. Specifically, Robinson asserted in his motion that Martin had told Police Officer Blubaugh:

... [that] he had personally observed a substance known to him as cocaine in a safe in the defendant’s home, and that he had been living with the defendant up to the day of his arrest; [h]owever, (Martin) testified at the deposition that he never saw any cocaine in the defendant’s safe and that he was not living with the defendant up to the day of his arrest.

On February 7, 1983, the trial court granted the motion to suppress, stating that having considered the deposition of Mike Blubaugh and the deposition of Donald L. Martin, that Martin:

... did not have an “overwhelming basis of knowledge” as represented to Officer Blubaugh for the purpose of securing the search warrant; but in fact, did not live in Defendant’s house and had not, within a reasonable time prior to the issuance of the search warrant, visited Defendant’s home on numerous occasions or observed numerous drug transactions and ... that had such facts been presented to the magistrate, the search warrant would not have been issued.

The court, noting that the state announced it could present no evidence, dismissed the case. The state now seeks review of the suppression order.

We reverse and remand for trial because the trial court’s findings in its suppression order are unsupported by the evidence. Nothing in Martin’s deposition refutes the fact that he lived in Robinson’s house in June, 1981, nor that he had visited Robinson’s home on numerous occasions and observed drug transactions there. Nothing in Martin’s deposition refutes the facts he related to Officer Blubaugh as those facts are recited in Blubaugh’s affidavit. Martin never claimed, in either his affidavit or his deposition, that he lived with Robinson in October, 1981, or that he had seen cocaine in Robinson’s safe. Blu-baugh’s recollection, more than a year after the occurrence, was that he had been told that Martin lived with Robinson in October (rather than in June) and that Martin had seen the cocaine in Robinson’s safe (rather than being told it was there by Robinson). These apparent errors by Blu-baugh at the time of his deposition in 1983 are not reflected in either his own affidavit or Martin’s affidavit, which were used to obtain the search warrant in October, 1981. The only true discrepancy between Martin’s deposition and his affidavit was that in the former he said he observed the cocaine transaction on October 21, 1981, whereas the affidavit states it was October 20, 1981, but neither the trial judge nor Robinson seems to attach any significance to this minor date discrepancy.

Aside from the unsupported factual findings, the trial court’s suppression order is reversible on another legal basis. Martin clearly was not a confidential informant, despite his characterization as such in Blubaugh’s affidavit. He gave his own independent affidavit in support of the warrant, revelation of his identity was never objected to by the state or concealed from the defense, and he was deposed by the defense in a pretrial proceeding. Therefore, it was never incumbent upon the police to establish his reliability. Even if Martin had given false information in his affidavit, as the trial court found, he was not a governmental official and there was no finding that Officer Blubaugh was acting with knowledge of any falsity or with reckless disregard for the truth when he submitted the affidavits. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); U.S. v. Phillips, 727 F.2d 392 (5th Cir.1984).

In Franks it was held that when a defendant makes a substantial preliminary showing that a false statement, intentionally or recklessly made, is included in the warrant affidavit and is necessary to a finding of probable cause, an evidentiary hearing is constitutionally mandated by the Fourteenth Amendment. If, at that hearing, it is established by a preponderance of the evidence that the false statement was knowingly or recklessly made, and was necessary for probable cause (i.e., the warrant cannot be supported without the false statements), then the search warrant must be voided and the fruits of the search excluded. The Franks decision expressly limited its applicability to governmental, as opposed to nongovernmental, affiants. See Franks, 438 U.S. at 171, 98 S.Ct. at 2684. In the instant case, Martin clearly is a nongovernmental affiant. Since he was not a confidential informant, Blubaugh cannot be faulted for failing to establish Martin’s reliability and failing to recite the indicia of that reliability in Blubaugh’s own affidavit.

We decline to extend the exclusionary rule of Franks to include misrepresentation by nongovernmental affiants in the absence of any wrongdoing, whether intentional or recklessly negligent, by a governmental officer. Cf. Mason v. State, 375 So.2d 1125 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980). In point of fact, the United States Supreme Court recently has adopted a broadened good faith exception to the exclusionary rule in U.S. v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984):

The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure “work[s] no new Fourth Amendment wrong.” ...
Whether the exclusionary sanction is appropriately imposed in a particular case, or decisions made clear, is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”_
The substantial social cost exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. “Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth finding functions of judge and jury.” United States v. Payner, 447 U.S. 727, 734 [100 S.Ct. 2439, 2445, 65 L.Ed.2d 468] (1980). An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system....
We conclude that the marginal or non-existent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion.

Id. at -, 104 S.Ct. at 3412-13.

For the foregoing reasons, we reverse the trial court’s order of suppression, and remand for further proceedings consistent with this opinion.

REVERSED.

DAUKSCH and ORFINGER, JJ., concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Phillip T. BRANDT, Appellee.
    No. 84-205.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Rehearing Denied Dec. 18, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order discharging appellee from criminal prosecution. It is based upon Florida’s Speedy Trial Rule 3.191, Florida Rules of Criminal Procedure.

The rule provides that a person must be tried within 180 days of being taken into custody for a felony offense. On March 4, 1983, appellee was taken into custody for a felony, sexual battery. Trial was set for June 2, 1983, but appellee moved for a continuance of the trial so it was not held and the speedy trial rule was waived as to that offense. State ex. rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Zeigler v. State, 402 So.2d 365 (Fla.1981); cert. den. Zeigler v. Florida, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); State v. Cocalis, 443 So.2d 138 (Fla.3d DCA 1983).

On January 11, 1984, appellee was recharged by an amended information with the same sexual battery. In another count of the same new information appellee was charged with a different sexual battery upon a different victim which the amended information says occurred on the same day. The trial judge made the following findings:

For the record in this particular case, I would make a specific finding as a matter of fact that the charge on the offense alleged in Count II is specifically the same conduct or criminal episode as alleged in Count I.
The court is going to construe the rule in favor of the defendant in this case. I do not feel the waiver applicable to Count I would be extended over to uncharged cases that arose out of the same conduct or criminal episode the state could have filed on an earlier occasion.
The state’s filing of Count II after speedy trial had run barred the state from proceeding on that count in view of the timely motion for discharge filed by the defense.

The state argues two theories to seek a reversal. First, that both batteries occurred from a single episode so the continuance of the trial date took both charges out of the speedy trial rule. Second, that if this court determines both did not arise from a single episode then appellee was not truly in custody for the second charge until the information was filed on that charge and he was restrained under that charge. Without distinguishing between a single episode versus multiple episodes we agree appellee was not under restraint, in custody, for the second count until the state charged him with that crime.

This case is materially different from State v. Jones, 404 So.2d 395 (Fla. 5th DCA 1981) where Jones was always charged with only one burglary. There, the first information inaccurately stated the apartment number which was burglarized. Double jeopardy did not bar a new charge and this court ruled a waiver of the speedy trial rule during the first proceedings operated to take the matter out of the speedy trial rule for all purposes, even when he is recharged and tried on a correct information. Here, appellee was involved in two batteries on two persons, it is alleged. Until he is taken into custody on a charge he is not entitled to speedy trial rights. He was not taken into custody for the second charge until, at the earliest January 11, 1984, when the information was filed, as far as the record here discloses. The motion for discharge affirmatively states that appellant was arrested for Count One on March 4, 1984. It does not say he was taken into custody for Count Two on that day, or any particular day.

The only evidence that the appellee was taken into custody as to Count Two is the information charging him with Count Two. The motion for discharge does not support the finding made and the information refutes the finding. The fact that both batteries occurred at the same location in the same time period does not equate to the same crime. There were two victims thus two separate crimes. Appel-lee should not have been discharged. The order of discharge is reversed and this cause remanded for trial on both counts.

REVERSED and REMANDED.

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


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Luis Antonio MOYA, Appellee.
    No. 84-1159.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Richard Hersch and Neal R. Lewis, Sp. Appointed Public Defenders, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

This is an appeal)by the state from an order granting defendant Moya a new trial following a jury verdict finding Moya guilty of kidnapping and sexual battery. We affirm.

The trial court’s order states:

The Defendant was tried before a jury for the crimes of kidnapping and sexual battery. He did not testify during the trial; however, his statement given to the police after his arrest was admitted into evidence. During that statement he was asked whether he understood that he was charged with committing the crimes of kidnapping and sexual battery; he answered “yes.”
During closing argument, the prosecutor, probably inadvertently, stated to the jury that the Defendant did not deny committing kidnapping.
This statement was an impermissable [sic] comment upon the defendant’s silence. The error is fundamental. Accordingly, it is
Ordered that the Defendant is granted a new trial.

It is axiomatic that the trial court has a wide discretion in granting a new trial and that, absent a showing of an abuse of discretion, such a ruling should not be disturbed. Baker v. State, 336 So.2d 364 (Fla.1976); Hanson v. State, 187 So.2d 54 (Fla. 3d DCA 1966). Because the prosecutor’s remark about Moya’s failure to deny his participation in the kidnapping constitutes an impermissible comment on defendant’s failure to testify, violating his constitutional rights, it is not subject to the harmless error doctrine. David v. State, 369 So.2d 943 (Fla.1979); Layton v. State, 435 So.2d 883 (Fla. 3d DCA 1983). We therefore find no abuse of discretion in the trial court’s grant of a new trial.

Affirmed.

       Defendant raised a timely objection to the prosecutor’s comment.


author: SHIVERS, Judge. NIMMONS, Judge,

text:
    James Lewis REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. AZ-405.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    James Lewis Reynolds, pro se.
    No Appearance for appellee.
   SHIVERS, Judge.

Appellant appeals, by way of the trial court’s denial of his RCrP 3.850 motion, his judgments of conviction and sentences for manslaughter by intoxication and manslaughter, contrary to sections 860.01 and 782.07, Florida Statutes (1981), respectively. Appellant contends that he should not have been sentenced for both manslaughter by intoxication and manslaughter, since only a single death occurred. We disagree and affirm based on the rationale set forth in this court’s recent decision of Houser v. State, 456 So.2d 1265 (Fla. 1st DCA 1984). See generally Smith v. State, 65 So.2d 303, 305 (Fla.1953); Taylor v. State, 46 So.2d 725, 726 (Fla.1950); State v. Stiefel, 256 So.2d 581 (Fla. 2d DCA 1972).

We recognize that our decision conflicts with the recent decision of the Fifth District Court of Appeal in Gordon v. State, 457 So.2d 1095 (Fla. 5th DCA 1984). We further certify the following question to the Florida Supreme Court as an issue of great public importance and which has a great effect on the proper administration of justice throughout the state:

WHETHER A DEFENDANT MAY BE CONVICTED AND SENTENCED FOR BOTH MANSLAUGHTER BY INTOXICATION AND MANSLAUGHTER WHERE THERE WAS ONLY A SINGLE DEATH?

See Gordon v. State and Houser v. State, supra, for their related certification of this issue.

Appellant’s judgments of conviction and sentences are AFFIRMED.

WENTWORTH, J., concurs.

NIMMONS, J., dissents with written opinion.

NIMMONS, Judge,

dissenting.

The defendant was convicted of manslaughter under Section 782.07, Florida Statutes (1981), and DWI manslaughter under Section 860.01(2), Florida Statutes (1981). The former provides:

782.07 Manslaughter. — The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The latter provides in part:

860.01 Driving automobile while intoxicated; punishment.
(1) It is unlawful for any person, while in an intoxicated condition or under the influence of intoxicating liquor, model glue, as defined in s. 877.11, or any substance controlled under chapter 893 to such extent as to deprive him of full possession of his normal faculties, to drive or operate over the highways, streets, or thoroughfares of Florida any automobile, truck, motorcycle, or other vehicle. Any person convicted of a violation of this section shall be punished as provided in s. 316.193.
(2) * * * [l]f the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter, (emphasis supplied)

The application of the Blockburger double jeopardy test was recently discussed by the Florida Supreme Court in State v. Baker, 456 So.2d 419 (Fla.1984):

In Blockburger v. United States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932), the Supreme Court considered whether a single act could result in multiple punishments and stated:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Id. at 304 [52 S.Ct. at 182], The Court later explained the Blockburger test:
As Blockburger and other decisions applying its principle reveal the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockbur-ger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.
Iannelli v. United States, 420 U.S. 770, 785 n. 17 [95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616] (1975) (citations omitted). Blockburger “means that two statutory offenses are essentially independent and distinct if each offense can possibly be committed without committing the other offense.” 425 So.2d at 50 (Cowart, J., dissenting) (emphasis in original). The Blockburger test is a rule of statutory construction which “should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Albernaz v. United States, 450 U.S. 333, 340 [101 S.Ct. 1137, 1143, 67 L.Ed.2d 275] (1981).
In Borges v. State [415 So.2d 1265 (Fla.1982) ] we held that separate convictions and sentences did not violate the double jeopardy clause. We relied on Albernaz to reach the conclusion that
where the legislature has expressed its intent that separate punishments be imposed upon convictions of separate offenses arising out of one criminal episode, the Double Jeopardy Clause is no bar to such imposition.
415 So.2d at 1267.

In determining whether, under Blockbur-ger, there are two offenses or only one, we need only look to the statutory elements of each crime. If each has an element not required to prove the other, there are two crimes even where the two crimes are proved by the same facts. State v. Baker, supra; Bell v. State, 437 So.2d 1057 (Fla.1983); Gordon v. State, 457 So.2d 1095 (Fla. 5th DCA 1984). Applying such test to this case, it appears we are dealing with two offenses. An element of DWI manslaughter is the operation of a vehicle while intoxicated. Manslaughter under Section 782.07 includes no such element. And while Section 782.07 includes culpable negligence as an element, such element is not included within DWI manslaughter.

Our inquiry does not end there because, as indicated in the above quote from State v. Baker, supra, the Blockburger test is a rule of statutory construction which must yield when there is a clear indication of contrary legislative intent. See also Bell v. State, supra at 1060. Certainly, the provisions of Section 775.021(4), Florida Statutes (1981), do not suggest a contrary intent:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

Notwithstanding the Blockburger criteria and the provisions of Section 775.021(4), both of which seem to point generally to the treatment of the subject offenses as two separate crimes, I am unable to ascribe to the legislature an intent that a defendant who has killed one person should be convicted of two felonious homicides. This would be contrary to the many holdings of the appellate courts of this state which have considered this subject, see Gordon v. State, 457 So.2d 1095 (Fla. 5th DCA 1984) (and cases therein cited), including this court, see Stricklen v. State, 332 So.2d 119 (Fla. 1st DCA 1976). I realize that this court’s recent decision in Houser v. State, 456 So.2d 1265 (Fla. 1st DCA September 26, 1984), departs from the above holdings and approves multiple convictions for vehicular homicide under Section 782.071, Florida Statutes, and DWI manslaughter under Section 316.1931(2) (formerly Section 860.-01). , In the first place, I do not agree with the Houser decision and would propose that we recede therefrom. However, even without receding from Houser, the instant case could be distinguished from Houser in terms of the indicia of legislative intent.

In our case, the defendant, as noted, was convicted of manslaughter under Section 782.07 and DWI manslaughter under Section 860.01 (now Section 316.1931). The DWI manslaughter statute, after reciting the elements of the offense, provides that the offender “shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.” This language unquestionably refers back to the “general” manslaughter statute, section 782.07. Particularly in light of the above statutory provisions and the specific reference by the one statute to the other, I conclude that separate homicide convictions under both statutes would be contrary to legislative intent. And I believe such intent would control over the more general intent expressed in Section 775.021(4), supra. If the court does not wish to recede from Houser, perhaps Houser could be distinguished on the basis that Houser was convicted of DWI manslaughter and vehicular homicide under Section 782.071 (instead of general manslaughter under Section 782.07). However, I would not want to rely upon such a distinction because I believe that convictions of both DWI manslaughter and vehicular homicide are also contrary to legislative intent.

Finally, I would add that had the majority of the court been persuaded to my views, I would, prior to final determination of this cause on appeal, have nevertheless favored inviting the Attorney General’s participation on behalf of the State pursuant to Fla.R.App.P. 9.140(g).

      . In 1982, the legislature transferred Section 860.01 to Section 316.1931 with amendments not material to the instant case. See Chapter 82-155, s. 1, Laws of Florida.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . The "lesser included offenses” referred to in Section 775.021(4) mean "necessarily” lesser included offenses. See State v. Baker, supra. Although this section was amended in 1983, Chapter 83-156, Laws of Florida, the above quoted 1981 version is applicable to the instant case. However, the same result would obtain even under the 1983 amendment.

      . When the DWI manslaughter law was initially enacted by Chapter 9269, Laws of Florida 1923, the predecessor to the general manslaughter statute was on the books. See Vol. 2 RGS § 5039 (1920).


author: BOARDMAN, Judge.

text:
    STATE of Florida, Petitioner, v. Gregory Allen TOUSIGNANT, Respondent.
    No. 84-1872.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.
    James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner.
    Robert E. Jagger, Public Defender, and Donna Rasmussen, Asst. Public Defender, Clearwater, for respondent.
   BOARDMAN, Judge.

This is a petition for writ of certiorari to review the order of the circuit court sitting in its appellate capacity. We have jurisdiction. Fla.R.App.P. 9.030(b)(2)(B) and 9.100.

We regard the sole issue as being whether there exists in Florida the crime of attempted resisting arrest without violence.

The state charged respondent as follows: GREGORY ALLEN TOUSIGNANT ... did knowingly and unlawfully attempt to obstruct or oppose Patrolman D. Bautis-ta, a law enforcement officer of the St. Petersburg Police Department, Pinellas County, Florida, while in the lawful execution of a legal duty which consisted of investigating a traffic offense, without offering or doing violence to the person of the officer, to-wit [sic]: by switching seating positions in an automobile; contrary to Chapter 843.02/777.04[,] Florida Statutes....

Respondent filed a motion to dismiss alleging that the crime charged did not constitute a criminal offense under Florida law. After hearing, the court granted the motion. The state thereafter appealed to the circuit court, whereupon the circuit court affirmed. In so ruling, the circuit court stated that “[i]n dismissing the information, the trial court was apparently persuaded that there is no separate offense of attempted obstruction or opposing a police officer by analogy to McABEE V. STATE, 391 So.2d 373 (2d DCA-Fla. 1980). [sic] as is this Court.”

We find the circuit court erred in two respects. First, contrary to the circuit court’s belief, the trial court did not find that the crime charged is not an offense. The trial court only determined that the undisputed facts, as pleaded in the information, did not amount to a criminal violation. Second, the circuit court departed from the essential requirements of law in relying on McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980), as that decision has no application to the instant case.

In McAbee the defendant was charged with resisting arrest with violence in violation of section 843.01, Florida Statutes (1979), and subsequently found guilty of attempted resisting arrest with violence. Section 843.01 proscribes not only “doing” violence to the person of the police officer but also “the offer” to do violence. The McAbee court believed the legislature’s use of the word “offering” in the statute was equivalent to the use of the word “attempting” and therefore held that there can be no separate crime of attempted resisting arrest with violence. Accord Jordan v. State, 438 So.2d 825 (Fla.1983); Plummer v. State, 455 So.2d 550 (Fla. 1st DCA 1984); Polite v. State, 454 So.2d 769 (Fla. 1st DCA 1984).

The holding in McAbee was predicated upon the well-settled principle that when the definition of an offense charged includes the attempt to commit that act, there can be no separate crime of attempt. State v. Thomas, 362 So.2d 1348 (Fla.1978). With respect to section 843.02, however, such is not the case. The key language of the provision, “without offering or doing violence,” merely abolishes the use of violence as an element of the offense, thus indicating the legislature’s intent that resisting arrest under 843.02 constitutes a separate and distinct crime from that provided in section 843.01. Therefore, we hold that the crime of attempted resisting arrest without violence does exist in Florida.

Accordingly, we grant the petition for writ of certiorari and remand the cause to the circuit court for appropriate review of the trial court’s finding that respondent’s actions did not constitute a violation of section 843.02. In the event the circuit court is unable, on the record, to review the trial court’s finding, it should remand the cause to the trial court for further proceedings consistent with this opinion.

RYDER, C.J., and DANAHY, J., concur.

      . The motion to dismiss was not filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), although the record indicates the trial court apparently treated it as such.

      . 843.02 Resisting officer without violence to his person. — Whoever shall obstruct or oppose any such officer, beverage enforcement agent, member of the Florida Parole and Probation Commission or any administrative aide or supervisor employed by said commission, parole and probation supervisor or parole and probation officer employed by the Department of Corrections, personnel or representative of the Department of Law Enforcement, or legally authorized person, in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.