source: Caselaw Access Project

author: HOBSON, Acting Chief Judge. PER CURIAM.

license: Public Domain

text:
    Arthur E. COPELAND, III, Appellant, v. STATE of Florida, Appellee.
    No. 82-1349.
    District Court of Appeal of Florida, Second District.
    May 13, 1983.
    Rehearing Denied Aug. 3, 1983.

      James H. Kynes and D. Frank Winkles of Winkles & Trombley, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Arthur E. Copeland, III, appeals an order adjudicating him guilty of first degree murder and sentencing him to life imprisonment with a minimum mandatory term of 25 years. We reverse and remand because the trial court erred in denying his motion to suppress a cassette tape recording containing self-incriminating statements made by him during a private conversation inside his apartment with one Reece Townsend. Unbeknownst to appellant, Townsend was wearing an electronic monitoring device which relayed the entire conversation to law enforcement officers outside the residence who monitored and recorded it on the tape.

Scott Allen Collins was murdered with a knife and hammer in the early morning hours of January 25, 1981, at Collins’ house trailer in Hillsborough County. There were no known witnesses and no immediate tangible leads. A breakthrough occurred in May 1981 when Reece Townsend of Lake-land, Florida, informed the Polk County Sheriff’s Office that appellant, with whom he had been acquainted for several years, had told him on separate occasions that he and another individual had murdered Collins in Hillsborough County a few months before. After being advised of Townsend’s allegations by the Polk County Sheriff’s Office, Detective Alfonso of the Hillsbor-ough County Sheriff’s Office met with Townsend. At the meeting, Townsend voluntarily consented to wear an electronic monitoring device while attempting to engage appellant in another incriminating conversation concerning Collins’ murder.

Thereafter, Assistant State Attorney Anthony Guarisco, Jr., filed a motion in the Circuit Court of Hillsborough County requesting authorization for the placement of an electronic monitoring device on Townsend’s person for the purpose of monitoring and recording any conversations between Townsend, appellant and other persons unknown which might occur in appellant’s residence in Hillsborough County. The motion incorporated by reference an affidavit of Detective Alfonso.

Based upon the assistant state attorney’s motion and the accompanying affidavit of the detective, the circuit court found that probable cause existed to believe that appellant had murdered Collins. The court further determined that the placement of an electronic monitoring device on Townsend’s body for the purpose of monitoring conversations occurring in appellant’s apartment in Hillsborough County would result in obtaining evidence relating to the murder and would afford adequate protection for Townsend. The court accordingly issued an order on June 10,1981, to remain in effect for 30 days, authorizing the electronic monitoring of conversations between Townsend, appellant and other persons unknown at appellant’s residence in Hillsborough County.

On June 12, 1981, Townsend, fitted with an electronic monitoring device, entered appellant’s residence in Hillsborough County as appellant’s guest. Several law enforcement officers stationed themselves in parked vans located in front of and in back of appellant’s apartment for the purpose of monitoring and recording on a cassette tape any conversation between Townsend and appellant. During an ensuing one-half hour conversation with Townsend, appellant made self-incriminating statements concerning Collins’ murder.

As a result of appellant’s recorded self-incriminating statements, a grand jury filed a two-count indictment charging him with the first degree murder and the armed burglary of Collins. Appellant thereafter filed a motion to suppress and a supplemental motion to suppress. The trial court conducted a suppression hearing and later denied the motions.

After appellant waived his right to a jury trial, the court conducted a trial at which it received into evidence the cassette tape recording of the conversation despite appellant’s objection. At the conclusion of the trial it adjudicated him guilty of murder in the first degree and sentenced him to life imprisonment with a minimum mandatory term of 25 years.

The threshold issue on appeal is whether the application for the use of the electronic monitoring device and the order authorizing the use of the device complied with relevant provisions of chapter 934, Florida Statutes (1981), otherwise known as the Security of Communications Act. At the outset, we stress that portions of chapter 934 authorizing the interception of wire or oral communications are statutory exceptions to the federal and state constitutional right of privacy. In re Grand Jury Investigation, 287 So.2d 43 (Fla.1973). As such, they must be strictly construed. Id.

Appellant contends here that the application did not comport with the requirements of sections 934.07 and 934.09(l)(c) and that the order did not satisfy the requirements of sections 934.09(3)(c) and (4)(e). We agree that these four provisions were not complied with.

Section 934.07 provides:

934.07 Authorization for Interception of Wire or Oral Communications.—The Governor, the Attorney General, or any state attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with this chapter, an order authorizing or approving the interception of wire or oral communications by the Department of Law Enforcement or any law enforcement agency of this state....

(Emphasis added.)

The record before us does not reveal who authorized the application below. The state nevertheless concedes that the assistant state attorney authorized it. Appellee’s brief, p. 2. It is settled, of course, that section 934.07 does not empower an assistant state attorney to authorize an application for the interception of wire or oral communications. State v. Daniels, 389 So.2d 631 (Fla.1980).

Sections 934.09(l)(c) and (3)(c) read:

934.09 Procedure for Interception of Wire or Oral Communications.—
(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting if the judge determines on the basis of the facts submitted by the applicant that:
(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;....

(Emphasis added.)

The state admits that the application did not indicate pursuant to section 934.09(l)(c) whether law enforcement officials tried normal investigative procedures which failed or why such procedures reasonably appeared either to be unlikely to succeed or to be too dangerous if tried. Appellee’s brief, p. 2. There is no question but that such silence is fatal to the validity of an application. Wilson v. State, 377 So.2d 237 (Fla. 2d DCA 1979).

Given that the application did not comply with section 934.09(l)(c), it necessarily follows that the issuing court was precluded from issuing an intercept order: section 934.09(3)(c) unequivocally requires that a court, before issuing an order, determine on the basis of the facts submitted in the application that normal investigative procedures have been tried and failed or reasonably appeared to be unlikely to succeed if tried or to be too dangerous.

Lastly, section 934.09(4)(e) states:

(4) Each order authorizing or approving the interception of any wire or oral communication shall specify:
(e) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically termi nate■ when the described communication has been first obtained.

(Emphasis added.)

The issuing court, while specifying in the order that the order would remain in effect for the 30-day statutory maximum, failed to state therein whether it would automatically terminate when the described communication had been first obtained. We construe section 934.09(4)(e) to mean that an issuing court may allow in the order for a continued interception after the desired communication has been first obtained if the application, pursuant to section 934.-09(l)(d), includes a particular description of facts establishing probable cause to believe that, after the described type of communication has been first obtained, additional communications of the same type will occur. In this case, the application did not contain such a description. Thus, the issuing court had no choice but to state in the order that the order would automatically terminate when the desired communication had been first obtained. Of course, the court failed to so state.

The purpose of the requirement in section 934.09(4)(e) that the issuing court indicate in the order whether the order shall automatically terminate when the desired conversation has been first seized is to prevent a “general search” in violation of the fourth and fourteenth amendments to the federal constitution and article I, section 12 of the Florida Constitution. Where, as here, the application does not, pursuant to section 934.09(l)(d), contain a particular description of facts establishing probable cause to believe that, after the described type of communication has been first obtained, additional communications of the same type will occur, the inclusion within the order of a statement pursuant to section 934.09(4)(e) that the order shall automatically terminate once the described type of communication has been obtained ensures that, once the described type of communication has been seized, executing officers are not free to continue intercepting conversations until the expiration of the 30-day period. The 30-day statutory maximum is simply a statutory limitation which terminates every order at the expiration of 30 days regardless of whether the desired communication has been obtained or the objective of the order has been attained.

In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873,18 L.Ed.2d 1040 (1967), the Court struck down a New York eavesdropping statute because it allowed for an unconstitutional general search. One of the Court’s express reasons for so holding was the statute’s failure to require that the issuing court place a termination date on the order once the conversation sought was seized. 388 U.S. at 58-60, 87 S.Ct. at 1883-84, 18 L.Ed.2d at 1051-53.

The issuing court’s order below thus amounted to an unconstitutional general warrant since it failed to state in the order that the order would terminate once the desired communications had been first intercepted.

The issue remaining on appeal is whether the evidence gathered from the electronic surveillance was saved by section 934.03(2)(c) due to Townsend’s voluntary consent to the interception. This section provides:

934.03 Interception and Disclosure of Wire or Oral Communications Prohibited.—
(c) It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

The Supreme Court of Florida held in State v. Sarmiento, 397 So.2d 643, 645 (Fla. 1981), that, “insofar as [section 934.03(2)(c) ] authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable.” (Emphasis in original.) The court subsequently remarked in Hill v. State, 422 So.2d 816, 818 (Fla.1982), that Sarmiento does not prohibit the use of electronic surveillance devices by undercover officers or informants in the home “as long as a warrant has issued by the appropriate judicial officer.”

The state asserts that the supreme court, by employing the words “warrantless” and “warrant” in the above-quoted phrases of Sarmiento and Hill, intended to convey the message that where a person is speaking inside his home with someone who fits within the category of persons described in section 934.03(2)(c) (e.g., an undercover police officer or informant), as here, the constitutional requirements for a search warrant need be satisfied, but the other procedures of chapter 934, such as sections 934.07 and 934.09, need not be. Appellant, noting that the supreme court twice used the term “intercept warrant” in Sarmiento, replies that the court meant to say that the constitutional requirements and the other provisions of chapter 934 must be satisfied in order for section 934.03(2)(c) to operate.

It is not imperative that we address this issue since we have determined that the order below violated the constitutional prohibition against general warrants. Nevertheless, assuming that the order below did not amount to a general warrant, we still cannot accept the state’s argument.

It is unnecessary to become entangled in a discussion regarding semantics in order to reject the state’s contention on this issue. In our view, the court in Sarmiento and Hill did not intend to attach any significance to its choice of wording in those cases. This view is buttressed by a recognition that the court in those cases simply was not dealing with this particular issue. A resolution of this question entails a closer look at Sar-miento.

Sarmiento stands for the principle that a person conversing inside his residence in Florida with another individual enjoys a reasonable expectation of privacy under article I, section 12, of the Florida Constitution, that persons outside his residence are not monitoring and recording the conversation by means of an electronic surveillance device. The procedures of chapter 934 were established in order to effectively protect this constitutional right of individuals in Florida to be free from the unreasonable interception of private communications by any means. See § 934.01(2).

To decide, as the state suggests, that the procedures of chapter 934 need not be complied with where a person is speaking inside his home with someone who fits within the category of persons described in section 934.03(2)(c) (e.g., an undercover police officer or informant), while at the same time recognizing, as the state must, that the procedures of chapter 934 need be satisfied in a case where a person is talking inside his home with one who does not fall within the category of persons described in section 934.03(2)(c) (e.g., an accomplice), would be to hold that a person’s expectation of privacy in the former situation with respect to unknown listeners outside his home is somehow “less reasonable” and less worthy of protection than is a person’s expectation of privacy in the latter situation. In our view, the allegiance of the listener inside the home simply has no bearing on a person’s expectation of privacy inside his home with regard to unknown outside listeners. A person talking inside his home should therefore be entitled to the full panoply of protection afforded by the procedures of chapter 934, regardless of the loyalty of the listener inside the home.

In sum, given both that the application and the order did not comply with the aforementioned provisions of chapter 934 and that the order permitted an unconstitutional general search, the conversation was unlawfully obtained. Hence, the trial court erred by admitting into evidence at trial the cassette tape recording of the conversation. See Hoberman v. State, 400 So.2d 758 (Fla. 1981).

Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

DANAHY and SCHOONOVER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The state initially contends on its motion for rehearing that the amendment to article I, section 12, Florida Constitution, which became effective during pen-dency of this appeal, now makes admissible the evidence which we held inadmissible. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). It submits that this amendment is controlling in this case, relying on the general rule that disposition of a case on appeal is done in accordance with the law in effect at the time of the appellate court’s decision instead of the law in effect at the time the judgment appealed was rendered.

In State v. Lavazzoli, 434 So.2d 321 (Fla. 1983), our state supreme court held that the amendment to article I, section 12, must be given prospective effect only, thereby ruling inapplicable the aforementioned general rule. Thus, regardless of the merits of the state’s argument that the evidence we held inadmissible is now admissible, which we need not address, the change in article I, section 12, does not apply retroactively in this case.

The state’s other argument on its motion for rehearing is without merit.

Accordingly, we deny the motion for rehearing.

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

      . See §§ 934.01, et seq., Fla.Stat. (1981). Most of the provisions of chapter 934 are identical, or nearly identical, to those contained in Title III of the federal Omnibus Crime Control & Safe Streets Act of 1968. 18 U.S.C. §§ 2510, et seq. (West 1978).

      . See § 934.09(5), Fla.Stat. (1981).

      . We note that the intercept order also failed to satisfy section 934.09(5), which states in pertinent part: Every order ... shall contain a provision that the authorization to intercept ... must terminate upon attainment of the objective ....

      . ARTICLE I
      DECLARATION OF RIGHTS
      SECTION 12. Searches and seizures — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No 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, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted bv the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
      (New language is underlined.)


author: GRIMES, Acting Chief Judge.

text:
    Charles SMITH, Appellant, v. STANDARD GUARANTY INSURANCE COMPANY, Appellee.
    No. 82-1378.
    District Court of Appeal of Florida, Second District.
    May 20, 1983.
    Rehearing Denied July 19, 1983.

      David W. Miner, Bradenton, for appellant.
    No appearance for appellee.
   GRIMES, Acting Chief Judge.

Appellant (Smith) sued appellee (Standard) in 1981 for compensatory and punitive damages resulting from failure to pay a collision loss under Smith’s policy with Standard. Smith contends that the court erred in directing a verdict against him on his claim for punitive damages.

At best, Standard’s handling of Smith’s claim was bungling and arbitrary. In any event, it was sufficiently callous that a jury would be justified in concluding that Standard was guilty of bad faith. However, our Florida courts have consistently held that a suit for punitive damages will not lie against an insurance company for bad faith in failing to pay a first party claim. Industrial Fire & Casualty Insurance Co. v. Romer, 432 So.2d 66 (Fla. 4th DCA 1983); United States Fire Insurance Co. v. Clearwater Oaks Bank, 421 So.2d 783 (Fla. 2d DCA 1982); Travelers Insurance Co. v. Habelow, 405 So.2d 1361 (Fla. 5th DCA 1981); Shupack v. Allstate Insurance Co., 367 So.2d 1103 (Fla. 3d DCA 1979); Lumilite Industries, Inc. v. Southeast Life Insurance Co., 365 So.2d 1083 (Fla. 3d DCA 1979); Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976); Midwest Mutual Insurance Co. v. Brasecker, 311 So.2d 817 (Fla. 3d DCA 1975); Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973); cf. Evans v. Florida Farm Bureau Casualty Insurance Co., 384 So.2d 959 (Fla. 1st DCA 1980) (upholding a claim for punitive damages against an uninsured motorist carrier’s arbitrary refusal to consent to its insured’s third party claim); contra Escambia Treating Co. v. Aetna Casualty & Surety Co., 421 F.Supp. 1367 (N.D.Fla.1976). Unlike the fiduciary relationship involved in the defense of a liability claim, a collision carrier and its insured occupy the status of debtor and creditor. Baxter v. Royal Indemnity Co. Of course, a successful first party claimant can obtain the payment of his attorney’s fees under section 627.428, Florida Statutes (1981), and the Insurance Commissioner may invoke sanctions for insurance company misconduct.

Standard’s conduct did not rise to the level of deliberate, overt and dishonest dealings which might constitute an independent basis for punitive damages. Saltmarsh v. Detroit Automobile Inter-Insurance Exchange, 344 So.2d 862 (Fla. 3d DCA 1977); see Butchikas v. Travelers Indemni ty Co., 343 So.2d 816 (Fla.1976). Therefore, the court correctly refused to permit Smith’s punitive damage claim to go to the jury-

After the court directed the verdict on punitive damages and it became apparent that Standard was not going to present any testimony, the court sua sponte directed a verdict in favor of Smith for compensatory damages in the sum of $4,375. The court appeared to act upon the assumption that it was helping Smith since Smith’s attorney offered no objection. However, Smith had introduced certain evidence upon which the jury might have returned a higher verdict than that directed by the court. Consequently, since Smith never moved for a directed verdict, and he now complains that it was inadequate, we hereby reverse the judgment for compensatory damages and remand that issue for a new trial. In all other respects, the judgment is affirmed.

RYDER and DANAHY, JJ., concur.


author: ANSTEAD, Judge. ANSTEAD, Chief Judge.

text:
    In the Interest of P.L.R., a child.
    No. 82-1242.
    District Court of Appeal of Florida, Fourth District.
    June 1, 1983.
    Rehearing Denied Aug. 24, 1983.

      Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, and William Millsap, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Robert L. Bogen and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

P.L.R., a juvenile, appeals from his adjudication of delinquency and the sentence rendered after the trial judge found him guilty of possession of marijuana. The only issue raised on appeal is whether the trial court erred in denying P.L.R.’s motion to suppress which was predicated on his claim that he had been illegally arrested and searched.

On February 10, 1982, Officer Joseph Lotta arrested an individual in an area of Pompano Beach that is known to the police as a high narcotics trafficking area, and as the site for a great number of street transactions in small amounts of marijuana. A group of youths approached the patrol car to ask about the arrest. One of the group, P.L.R., rode up to Lotta on his bicycle. Lotta had seen P.L.R. in the area before. P.L.R. was wearing a sweatshirt with two pockets in front. The left pocket was bulging open revealing a small yellow or brownish manila envelope which, according to Lotta, was of the type commonly used in the area and known to police officers as a “nickel bag of marijuana.” Lotta reached down and removed the manila envelope from P.L.R.’s pocket, smelled it and determined that it smelled like marijuana. Lot-ta then opened the envelope and found a green vegetable matter that appeared to be marijuana. He then placed P.L.R. under formal arrest. Lotta subsequently testified that he had seen such envelopes used to package marijuana in “excess of a hundred times” and, in fact, that was “the only use I’ve ever seen these envelopes put to.”

Officer Gordon Shoppe was also present at the scene. Shoppe corroborated Lotta’s testimony regarding the extensive use of the type of envelope seized as a container for marijuana. He recognized P.L.R. as a “regular on the corner,” one of a group of juveniles who don’t go to school but are usually on the street and are frequently used by adult drug dealers to sell marijuana to passersby. Lotta and Shoppe transported P.L.R. to the police department. In the process of booking P.L.R., Officer Shoppe conducted a further search and found a clear plastic baggie in P.L.R.’s sock. Tests were performed on the contents of the envelope and the baggie and both showed a positive reaction for marijuana. A forensic chemist later analyzed both specimens and determined that the plastic bag contained marijuana but that the plant matter in the manila envelope was not marijuana.

The trial court took judicial notice of the fact that there was no search warrant in the file and that the seizure of evidence from the appellant could be sustained only if such seizure was proper under one of the exceptions to the warrant requirement. See Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). One such exception exists where the search is incident to a valid arrest. The arrest must be justified by facts constituting probable cause. Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). The test to determine whether probable cause exists is whether: Dixon v. State, 343 So.2d at 1348, quoting Benefield v. State, 160 So.2d 706, 708 (Fla. 1964).

the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.

Since the possession of marijuana is a criminal offense in Florida, the observation of a person in possession of marijuana would ordinarily constitute probable cause to arrest the person and seize the marijuana. The question here is whether the observance of a container known to police officers to frequently contain marijuana, when considered together with certain other circumstances, is sufficient to constitute probable cause to conclude that the envelope does contain marijuana. In Albo v. State, 379 So.2d 648, 650 (Fla.1980), the supreme court approved a police officer’s seizure of bales wrapped in black plastic and burlap:

In the instant case, Detective Mastaler observed that thirty-five to forty bales in the motor home were square and wrapped in black plastic and burlap. In his two and one-half years of previous experience in undercover purchases and narcotics investigations, every bale he had ever purchased or seized had been packaged in an identical manner. Given his experience plus the defendant’s failure to produce the vehicle’s registration and the fact that the rear end of the motor home looked weighted down, the circumstances support Mastaler’s determination that the bales were marijuana. We find that the record established sufficient probable cause for a reasonable man to conclude that an offense was being committed.

In contrast with the holding in Albo, P.L.R. cites Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981), for the proposition that the police lacked probable cause to arrest him and to search the brown manila envelope in his pocket. The officer in Thompson had information that appellant was carrying a gun in a small shaving case. During a valid investigatory stop, a brown manila envelope fell to the ground; the officer opened the envelope, observed what he believed' to be marijuana and placed Thompson under arrest. The Second District observed, “[I]t cannot be said that most brown envelopes contain marijuana.” The Second District also found a search and seizure of two hand-rolled cigarettes invalid in Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). The court explained that there was insufficient evidence to support the officer’s testimony that he “knew” the cigarettes contained marijuana. A similar result was reached in Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977), where a police officer seized a plastic bag.

On the other hand, an order of suppression was reversed in State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978), involving the seizure of several small, flat tinfoil packets found in defendant’s shoes. Based on the arresting officer’s experience with drug arrests involving such packets and the defendant’s bizarre conduct, the court found that the officer had probable cause to believe the packets contained either heroin or cocaine.

The United States Supreme Court has also had difficulty with this problem. In Texas v. Brown, - U.S. -, 103 S.Ct. 1535, 75 L.Ed.2d 502 ( 1983), the court, in a plurality opinion, approved the seizure of a balloon believed by a police officer to contain narcotics:

With these considerations in mind it is plain that Officer Maples possessed probable cause to believe that the balloon in Brown’s hand contained an illicit substance. Maples testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers, that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics. This testimony was corroborated by that of a police department chemist who noted that it was “common” for balloons to be used in packaging narcotics. In addition, Maples was able to observe the contents of the glove compartment of Brown’s car, which revealed further suggestions that Brown was engaged in activities that might involve possession of illicit substances. The fact that Maples could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.

Id. at-, 103 S.Ct. at 1543. In addition to his experience with balloons, the officer in Brown observed “several small plastic vials, quantities of loose white powder, and an open bag of party balloons” before making the seizure. Hence, as is true in virtually all of the cases that have approved seizures, the supporting circumstances beyond the officer’s experience with the container in question appeared to play an important role in the appellate court’s decision.

In this case Officers Lotta and Shoppe both testified that they were patrolling in “a high narcotics trafficking area” where many street sales of small amounts of marijuana took place. Both had made numerous drug arrests and were familiar with the frequent use of small manila en-velopes as marijuana containers. Both had seen P.L.R. in the area before. They also explained that juveniles, like P.L.R., were often used by adult dealers in the area to make drug sales. Lotta was actually arresting someone for a narcotics violation when P.L.R. and his companions gathered around the patrol car asking about the arrest. In other words, Lotta and his fellow officer were able to articulate several reasonable grounds to justify Lotta’s belief that the envelope contained marijuana, even before he smelled the envelope or opened it. P.L.R. offered no evidence to contradict the officers’ testimony. Under these circumstances, as in Albo, we believe the evidence is sufficient to support the trial court’s conclusion that the officer had probable cause to arrest P.L.R. for possession of marijuana. And, since the initial search was incident to a valid arrest, the subsequent seizure of the marijuana found in appellant’s sock during booking was also valid. •

We concede that we are troubled, as the Second District obviously has been, by the extent to which police officers may rely upon their experience to identify articles of an apparent innocent nature as containers of contraband to a sufficient certainty to establish probable cause for the arrest of the possessor of the container. In actuality we are unable to reconcile our decision today with the holdings in Carr and Thompson and we acknowledge that the proof here may not have been as extensive as it was in Redding, Albo or Brown. Nonetheless, we approve the decision of the trial court on the basis that the trial judge is in the best position to judge the credibility and efficacy of the police officer’s testimony. Accepting that testimony and the inferences to be drawn therefrom as true, we believe the evidence is sufficient to sustain the trial court’s findings. Judges must evaluate the police officers’ actions based not upon the judges’ own experience with the potential contents of brown manila envelopes but rather upon the experience of the officers considered in the context of the situation existing at the time of seizure or arrest. Dixon at 1348. The trial court’s authority and duty to carefully evaluate the credibility and weight of such testimony as part of its overall responsibility to determine the existence of probable cause should constitute a sufficient check on the authority of the police to go “too far” in identifying otherwise harmless containers as contraband.

Accordingly, we approve the decision of the trial court and affirm the conviction and sentence of the appellant.

BERANEK and HERSEY, JJ., concur.

OPINION ON REHEARING

ANSTEAD, Chief Judge.

Although we deny appellant’s petition for rehearing we grant his request to acknowledge that our decision is in conflict with other Florida decisions on the same issue. Accordingly, we hereby certify that our decision is in conflict with Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978); and Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).

HERSEY, J., concurs.

BERANEK, J., dissents without opinion.

      . In a separate concurrence, three justices noted:
      Alternatively, the balloon could be one of those rare single-purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” [Arkansas v.] Sanders, supra, [442 U.S. 753] at 764-765, n. 13 [, 99 S.Ct. 2586, at 2593-2594, n. 13, 61 L.Ed.2d 235]. Whereas a suitcase or a paper bag may contain an almost infinite variety of items, a balloon of this kind might be used only to transport drugs. Viewing it where he did could have given the officer a degree of certainty that is equivalent to the plain view of the heroin itself. If that be true, I would conclude that the plain view doctrine supports the search as well as the seizure even though the contents of the balloon were not actually visible to the officer.
      This reasoning leads me to the conclusion that the Fourth Amendment would not require exclusion of the balloon’s contents in this case if, but only if, there was probable cause to search the entire vehicle or there was virtual certainty that the balloon contained a controlled substance. Neither of tílese fact-bound inquiries was made by the Texas courts, and neither should be made by this Court in the first instance. Moreover, it may be that on remand the Texas Court of Criminal Appeals will find those inquiries unnecessary because the respondent may have waived his right to demand them.
      (Footnotes omitted.) -U.S.-, 103 S.Ct. 1547.


author: LARRY G. SMITH, Judge. LARRY G. SMITH, Judge.

text:
    Howard McGEE, Appellant, v. STATE of Florida, Appellee.
    No. AM-388.
    District Court of Appeal of Florida, First District.
    June 7, 1983.
    On Rehearing July 29, 1983.

      Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellant seeks reversal of a judgment of conviction entered upon a jury verdict finding him guilty of the offense of escape, for which he has been sentenced to an en-, hanced term of thirty years, to run consecutively to sentences imposed under convictions for two separate crimes. Appellant argues several grounds for reversal, including double jeopardy, rulings of the trial court allegedly improperly restricting appellant in his presentation of evidence in his defense, failure to restrict the State in its presentation of prejudicial evidence, and other trial errors. We affirm.

On October 8, 1981, capiases were issued by the Circuit Court of Duval County for the arrest of appellant in connection with some thirteen felony charges pending in seven separate criminal cases. The capias-es, seven in number, identified the underlying offenses which included burglary, burglary of a conveyance, forgery, uttering a forged instrument, and robbery, and each of the seven capiases also noted “bond estrea-ture” as cause for appellant’s arrest. On November 24, 1981, appellant was arrested on each of the capiases, taken into custody and incarcerated in the Duval County Jail by Duval County .Sheriff’s Deputies.

On December 2, 1981, appellant was taken before a county judge in the Duval County Courthouse, in Courtroom 21, for a first appearance in connection with his arrest on the capiases. Upon being advised by appellant that his private counsel was not present, and did not know appellant was to be in court that day, the court instructed a bailiff to escort appellant to a telephone for the purpose of calling his attorney. Appellant apparently completed the call, then was returned to the courtroom where he was again seated-to await further proceedings. Shortly thereafter, appellant jumped up, ran across the courtroom floor at a high rate of speed, knocked over the speaker’s podium, bumped into one of the assistant public defenders, and continued at a high rate of speed down the hallway outside the courtroom. He was pursued by bailiffs from the courtroom— one of them shouting warnings to stop, and threatening to shoot — and was intercepted by another officer in front of the elevator, where a struggle ensued until appellant was finally subdued and returned to the courtroom. The presiding judge from whose courtroom appellant had escaped proceeded to immediately adjudge appellant in contempt of court, stating:

Immediately, right after he [the bailiff] let you call your lawyer, you was [sic] placed back there and then you tried to escape from this courtroom, disrupt the court, disrupted everything and you ran over a podium over there where the Public Defender was standing, just about bruised her up a little bit. So, I am going to sentence you to contempt of court for five months and 29 days in the County Jail for disrupting this court, ....

I.

Appellant first contends that his direct criminal contempt conviction bars a subsequent prosecution for escape, urging that his right to protection against double jeopardy prohibits him from being twice convicted for the same conduct. Arguing that the “Blockburger test,” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), has been expanded, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), appellant urges that the contempt and the escape are the “same” offense for double jeopardy purposes. We disagree. In State v. Carpenter, 417 So.2d 986 (Fla.1982), the court had occasion to address the double jeopardy issue, noting that if the crimes are the same, the imposition of multiple punishments is prohibited under Blockburger, supra. Further, the court stated (Id. at 987):

A single transaction can give rise to distinct offenses under separate statutes without violating the double jeopardy clause of the fifth amendment. Albernaz v. United States, 450 U.S. 333 [101 S.Ct. 1137, 67 L.Ed.2d 275], ... (1981). In determining whether separate punishment can be imposed, Blockburger requires that courts examine the offenses to ascertain whether each offense requires proof of a fact which the other does not. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. See Iannelli v. United States, 420 U.S. 770 [95 S.Ct. 1284, 43 L.Ed.2d 616], ... (1975). In Albernaz v. United States, the Court recognized that the power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them rests wholly with the legislative branch.

The claim of double jeopardy here, whether under the traditional Blockburger test or a more expansive version argued by appellant, will not withstand the most simple analysis, for it is evident that appellant’s conduct in knocking over a podium, bumping into an assistant public defender and disrupting a court proceeding amply supports a conviction for direct criminal contempt, but is immaterial to the offense of escape. Further, appellant’s departure from the courtroom and his footrace down the exterior corridor until he was forcibly intercepted and restrained by law enforcement officers near the elevator, essentially establishes the escape charge (once lawful custody is established), but does not establish a direct contempt of court for courtroom disruption. In terms of “elements” of the two offenses, lawful custody is not an element of direct criminal contempt, and courtroom disruption or other interference with a judicial proceeding is not an element of escape. We think it is clear from the record of the contempt proceeding that the court found appellant in contempt “for disrupting this court,” rather than because appellant escaped or attempted to escape from lawful custody. We also reject appellant’s contention that subjecting appellant to the contempt and the escape charges constitutes “cruel harassment” in violation of the due process clause of the Fifth Amendment.

II.

At the commencement of the trial on April 8, 1982, appellant’s counsel filed a motion to dismiss, contending that appellant was not in lawful custody on December 2, 1981, the date of his attempted escape, because the capiases upon which he was being held were improperly issued by the trial court. The written motion to dismiss alleges that the capiases were issued following appellant’s failure to appear for a pretrial conference on certain of the felony charges pending against him, even though a waiver of appearance had been filed in appellant’s behalf in each of the cases in which a capias was issued. He contended in the trial court, and here, that since the defendant had validly waived his appearance at the pretrial conference scheduled for October 8, 1981, the capiases issued on that date following appellant’s nonappearance in court were issued illegally and without cause. Appellant’s counsel argued, based upon his recollection, that on the day preceding October 8, 1981, the court had ordered him to have appellant present in court on October 8, and upon appellant’s failure to appear, the capiases were issued for his arrest. The court responded, and appellant’s counsel agreed, that the court had also set the cases for trial, and upon appellant’s nonappearance for trial he had estreated his appearance bonds. The record does not disclose the date of the bond es-treatures. However, as indicated above, all of the capiases cited “bond estreature” as one of the reasons for appellant to be taken into custody. The prosecuting attorney also argued that on the date of the alleged escape appellant was in custody on numerous cases, in addition to those involving issuance of the capiases, but that the state had elected to use the capiases to prove “lawful custody” because of the presumption of lawfulness arising from arrest on the capiases. The trial judge, being the same judge who had issued the capiases upon which appellant was arrested, denied an evidentiary hearing to establish further details bearing upon the correctness of the judge’s action in ordering the issuance of the capiases as being “unnecessary.”

It is clear that defense counsel’s theory of defense was not that Judge Oakley (the presiding judge in this proceeding) did not issue the several capiases for appellant’s arrest and detention, nor that the judge lacked general authority to issue capiases for the recommitment of defendants at liberty on bail for felony offenses for non-appearance or breach of bail bond conditions, nor that the arresting officer and the jail personnel improperly relied upon the authority of the capiases for appellant’s arrest and detention, nor that appellant was in fact arrested, incarcerated, and escaped or attempted to escape from courtroom 21 of the Duval County Courthouse while he was in custody of duly authorized law enforcement officials under the authority of the capiases. The defense attempted to be asserted in the motion to dismiss and before the jury was that Judge Oakley did not have “probable cause” to order the issuance of the capiases for appellant’s arrest, and, therefore, that appellant’s custody, at the time of his escape, was unlawful. Defense counsel proceeded on this tack throughout the trial in his examination of the witnesses and in closing argument, despite the court’s pretrial ruling that the existence of probable cause justifying the issuance of the capi-ases was not an issue in the case. The trial court was correct in this ruling. The issue was not one for the jury. When it was shown by the state’s evidence that the appellant was arrested by a duly authorized officer upon the authority of outstanding capiases issued by the Circuit Court of Du-val County, regular on their face, and that at the time of his escape appellant was being held by duly authorized officers under the authority of the capiases, the appellant was in “lawful custody” so as to subject appellant to the penalty of the law for the crime of escape.

Appellant’s reliance upon Emmanuel v. State, 366 So.2d 513 (Fla. 2nd DCA 1979), is misplaced. A circuit judge’s order revoking bail and issuing a warrant for the arrest of the accused, following the failure of the accused to appear at a pre-trial conference, if based upon an erroneous determination of fact or incorrect application of the law, is subject to challenge by motion to quash the warrant and to set aside the bond estrea-ture. Emmanuel, supra. Until properly challenged and set aside, however, the detention of the accused by duly authorized law enforcement officials under the warrant or capias is lawful, as that term applies to the “lawful custody” element of the offense of escape. See Section 944.40, Florida Statutes (1981), proscribing the offense of escape by any “prisoner,” and Section 944.-02, defining “prisoner” as “any person who is under arrest and in the lawful custody of any law enforcement official, ...etc.

Proof of “lawful custody” has never been held in this state to require the state, in prosecuting an escape charge, to prove that the trial judge who issued the warrant upon which the accused has been arrested and is being held, correctly determined the existence of “probable cause” for issuance of the warrant. It has been held that where the issue is the admissibility of evidence seized pursuant to an arrest, the absence of probable cause for issuance of the warrant upon which the arrest was effected requires suppression of the evidence. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1081, 28 L.Ed.2d 306 (1971); and see Martin v. State, 424 So.2d 994 (Fla. 2nd DCA 1983) (evidence suppressed where arresting officer had no independent probable cause, but arrested appellant on an Alabama warrant which was void because accused had already been arrested on that warrant, incarcerated in Alabama, and released prior to his Florida arrest.) However, the reasoning underlying these cases does not sanction an escape by the arrestee, any more than it justifies violent resistance by the arrestee when confronted by an officer with a warrant, or allows an arrestee to forcibly retake possession of any property seized by an arresting officer under such circumstances. In either instance, as the facts here demonstrate, a life-threatening state of affairs is created by the arrestee’s active resistance to the apparent authority of the state. We are persuaded that the considerations underlying the prohibition against the use of force to resist even an unlawful arrest would preclude us from adopting the view, espoused by appellant, that an escapee may rely upon some technical deficiency or irregularity in the warrant under which he has been taken into custody. See, Meeks v. State, 369 So.2d 109 (Fla.1979); Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978); State v. Johnson, 382 So.2d 866 (Fla. 2nd DCA 1980).

We think the correct rule of law was recognized in State v. Fulkerson, 300 So.2d 276 (Fla. 2nd DCA 1974), in which the court stated (Id. at 278):

The better reasoned opinions appear to hold that where one is imprisoned under some color of law, he is not entitled to resort to self-help but must apply for his release through regular legal channels. The possibility of violence incident to a prison break dictates strongly against any other rule.

This rule was quoted and followed by this court, although on different facts, in State v. Alcantaro, 407 So.2d 922 (Fla. 1st DCA 1981). In Dupree v. State, 416 So.2d 1228, 1230 (Fla. 1st DCA 1982), we said: “In the absence of evidence to the contrary, custody pursuant to an arrest warrant will be presumed valid.” Appellant argues that this statement implies the existence of the defense urged here. Again we disagree. Although this statement appears in response to an argument that the State had failed to prove lawful custody of the escapee because the State failed to prove that the arrest warrant for the escaping person was valid, our view is that the court merely recited the quoted rule in support of its determination that the state’s evidence was sufficient, and did not indicate in any way its approval of a defense such as that sought to be interposed here, i.e., that the judge issuing the warrant incorrectly determined the existence of probable cause for its issuance. Appellant’s contentioh on this issue runs counter to the “color of law” rule which as above noted has been followed by this court, as well as some other state and federal jurisdictions. See, annotation on justification for escape, 70 ALR2d 1430, and 70 ALR2d 1430 later case service; and 27 Am. Jur.2d, Escape, Prison Breaking, and Rescue, § 7, “Legality of custody, generally.” We have examined the cases relied upon by appellant on this point and find no conflict with the rule we apply here. Cf. Abigando v. State, 239 So.2d 646 (Fla. 1st DCA 1970); Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976); Estep v. State, 318 So.2d 520 (Fla. 1st DCA 1975); Fulford v. State, 113 So.2d 572 (Fla. 2nd DCA 1959); Haggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969); Williams v. State, 416 So.2d 493 (Fla. 5th DCA 1982).

III.

Turning to other issues, we find no error in the trial court’s denial of a motion for judgment of acquittal, nor in the court’s ruling on the state’s “late disclosure” of witnesses. The state filed a supplemental response a few days before trial containing the names of three officers, all of whom were to testify as to merely formal matters dealing with appellant’s arrest and detention in the Duval County Jail, none of these facts with respect to appellant’s arrest and incarceration being in dispute. Furthermore, on the morning of the trial appellant’s counsel admitted that he had taken the deposition of the witnesses the afternoon before. We conclude that the trial judge was sufficiently informed by the hearings on April 5, 1982 and April 8, 1982 to satisfy the Richardson requirements, and that there was no abuse of discretion in denying the motion to exclude. Richardson v. State, 246 So.2d 771 (Fla.1971).

IV.

Appellant further urges that the trial court reversibly erred in denying appellant’s motion in limine in which appellant sought an order restricting the state to introduction of only one capias for arrest, rather than introduction of all seven capias-es upon which he was arrested. In Fonts v. State, 374 So.2d 22 (Fla. 2nd DCA 1979), the Second District held that reversible error occurred in an escape trial when the state was allowed to reveal to the jury the nature of the crime for which the defendant was serving a sentence at the time of his escape. Appellant acknowledges that the Supreme Court of Florida, in Parker v. State, 408 So.2d 1037 (Fla.1982), disapproved the holding in Fouts v. State. Appellant urges, however, that although under the Parker decision the state is not precluded from proving the crime for which a defendant was being incarcerated at the time of his escape, nevertheless the state here should have been restricted to proof of just one capias, including the underlying offense charged in that case, rather than be permitted to prove that appellant was subject to prosecution for some thirteen different offenses. In other words, appellant argues, any slight probative value in proving the nature and number of the several offenses charged against appellant was outweighed by the prejudicial effect of this information upon the jury, citing Section 90.403, Florida Evidence Code, Florida Statutes (1981). All of the capiases were issued and served at the same time, and we find no basis upon which to hold that the trial court should have required the state to select only one of the capiases for submission into evidence on this issue.

V.

Finally, with respect to the state’s “smoke screen” argument, we have condemned such language in the past, and have no intention of departing from our prior decisions on this point. See, Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973); Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977); Melton v. State, 402 So.2d 30 (Fla. 1st DCA 1981); Cooper v. State, 413 So.2d 1244 (Fla. 1st DCA 1982); and Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982). However, because of the absence of any substantial factual controversy which possibly could have been influenced one way or the other by this argument, we find harmless error.

The judgment of conviction and sentence are AFFIRMED.

BOOTH and ZEHMER, JJ., concur.

OPINION ON MOTION FOR REHEARING

LARRY G. SMITH, Judge.

In his motion for rehearing and request for en banc consideration or certification appellant redirects our attention to his claim that the holding of Fouts v. State, 374 So.2d 22 (Fla. 2nd DCA 1979) — to the effect that it is reversible error to allow the state to prove the nature of the crime for which an accused was incarcerated at the time of his escape — has continued viability. Appellant’s argument is bottomed on the assumption that Parker v. State, 408 So.2d 1037 (Fla.1982), cited in our above opinion, dealt only with the state’s right to reject the defendant’s offer to stipulate to the fact of his previous conviction, and that the Parker decision left intact the Fouts v. State requirement that the nature of the crime be excised from the certified copy of the judgment and sentence introduced to prove a prior conviction.

It is true, as appellant argues, that the Fourth District’s opinion in Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980), decision reviewed and approved Parker v. State, 408 So.2d 1037 (Fla.1982), points out that no objection was made at trial concerning the portion of the judgment and sentence showing the nature of the defendant’s prior felony conviction. It is also apparent that the Supreme Court’s Parker v. State opinion does not expressly mention the excision issue. Nevertheless, the opinions of the Fourth District and the Florida Supreme Court hold that the state may introduce a certified copy of the defendant’s prior judgment and sentence. Both opinions state that the document in that case was similar in form to that found in Rule 3.986, Florida Rules of Criminal Procedure. The form displayed in this rule contains a space for insertion of details including the nature and degree of the crime or crimes of conviction, as well as the offense statute numbers. We think it is highly unlikely, given the absence of any qualifying expression in the Supreme Court’s opinion, that the court intended to approve use of a certified copy of a judgment and sentence only if the nature of the offense of conviction is first excised.

The Parker opinion, on the other hand, does specifically point out that rulings on the admissibility of prior conviction evidence must be determined in the light of Sections 90.402 — .403, Florida Evidence Code (Florida Statutes, 1979). This means that evidence of prior convictions must be restricted if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence.” Parker v. State, 408 So.2d at 1038. As noted in our above opinion, we considered and rejected appellant’s argument that the trial court erred in failing to require the state to limit its proof under this standard.

As for appellant’s contention that our decision conflicts with our prior decision in Hall v. State, 400 So.2d 102 (Fla. 1st DCA 1981), petition for review dismissed, 412 So.2d 470 (Fla.1981), we first judicially notice certain facets of the procedural history of that case which are somewhat pertinent here, but nevertheless are not mentioned in the motion for rehearing or for en banc consideration. These facts are as follows: This court reversed Hall’s conviction and ordered a new trial. 400 So.2d at 103. The Florida Supreme Court accepted jurisdiction for discretionary review on petition of the State of Florida alleging conflict with Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980), but refused to stay the First District’s mandate. Petition for review was later dismissed by the Florida Supreme Court upon the state’s suggestion for dismissal on the ground of mootness, in that while review was pending Hall had been retried, convicted, and sentenced to forty years imprisonment. This dismissal of the petition for review occurred on December 22, 1981. See 412 So.2d 470. Of course, shortly thereafter, on January 7, 1982, the Florida Supreme Court issued its Parker v. State decision. See 406 So.2d 1037.

Secondly, our Hall v. State decision relied on Fouts v. State (later disapproved by the Florida Supreme Court, Parker v. State, supra), for the proposition that in Hall’s trial for robbery, aggravated battery, and possession of a firearm by a convicted felon, the nature of the crime should have been excised from the judgment and sentence introduced by the state to prove Hall’s prior felony conviction of robbery. The Florida Supreme Court’s disapproval of Fouts v. State alone casts doubt upon the continued precedential value of our Hall decision on the issue of excision (our reversal was also based on a second ground — error in jury instructions). But we need not address here the question of whether our Hall decision may be relied upon as requiring excision of the nature of the crime under the now rejected Fouts v. State rationale. This is so because in Hall we found (400 So.2d at 103): “The prejudicial impact of disclosing to the jury a prior conviction for robbery when appellant was then being tried for armed robbery requires reversal.” (emphasis supplied). We interpolate that this holding would not necessarily mandate a similar result in the case of a defendant being tried only on a charge of possession of a firearm by a convicted felon, nor, it logically would follow, on a charge of escape, as here. It should also be noted that this court in Hall considered that disclosure of the nature of Hall’s prior conviction was unnecessary in that case, because the state had already introduced the unrefuted testimony of an attorney who had previously represented Hall on a felony charge. Our Hall decision may properly be viewed, therefore, as falling within the ambit of Section 90.402- 403, Florida Evidence Code, rather than as standing for a per se rule of excision of the nature of the crime in every case in which proof of the prior conviction is an essential element. See, Parker v. State, 408 So.2d at 1038.

We are of the view that our decision is not at variance with Fouts v. State, Parker v. State, or Hall v. State, supra. Further, we see no need for further consideration of alleged conflict with Dupree v. State, 416 So.2d 1228 (Fla. 1st DCA 1982), which we specifically discussed in our original opinion. Much of the discussion of the Dupree case and other matters in the motion is simply reargument.

We adhere to our original decision and opinion, as above amplified, and affirm the judgment of conviction and sentence.

BOOTH and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    Rodrick NANCE, Appellant, v. Lisa NANCE, Appellee.
    No. 82-2121.
    District Court of Appeal of Florida, Fourth District.
    June 8, 1983.
    Rehearing Denied Aug. 31, 1983.
    Stephen M. Bell, Plantation, for appellant.
    Victoria L. Semora, Hollywood, for appel-lee.
   PER CURIAM.

The trial court has not been shown to have been in error in concluding that the wife, by terms of the final judgment, was prohibited only from removing the child from the State on a “permanent basis” and that the removal under the circumstances was not permanent so as to require modification.

Affirmed.

LETTS, C.J., and BERANEK and WALDEN, JJ., concur.


author: LETTS, Chief Judge.

text:
    SUN LIFE ASSURANCE COMPANY OF CANADA and Sam C. Hakemian, Appellants, v. LAND CONCEPTS, INC., and Richard E. Gabel, Appellees.
    No. 81-1136.
    District Court of Appeal of Florida, Fourth District.
    June 15, 1983.
    Rehearing Denied Aug. 22, 1983.
    Brenton N. Ver Ploeg and Andrew L. Gordon of Shutts & Bowen, Miami, for appellants.
    Wallace B. McCall of Frates & McCall, Palm Beach, and Edna L. Caruso of West Palm Beach, for appellees.
   LETTS, Chief Judge.

An Insurance Company here appeals from an adverse final judgment, emanating from a non-jury trial. The trial court’s ruling was predicated upon proof, by the greater weight of the evidence, of fraudulent misrepresentations by the Insurance Company. These misrepresentations allegedly induced the insured to purchase one million dollars worth of life insurance. We disagree with the lower court and reverse.

A recitation of all the facts and circumstances of this matter would contribute nothing to the body of the law. Thus, we will not attempt to condense over 22 pages of facts contained in the various briefs and will report only those excerpts of the record which require reversal based on an inevitable conclusion of law.

The gravamen of the complaint was that the Insurance Company “breached [its] oral contract ... by misrepresenting ... facts . .. and/or by failing to comply with those representations.” A litany of those oral misrepresentations, all made by the Insurance Company’s agent, is thereafter set forth in the same pleading, including failure to advise the insured about (a) the true borrowing power of the policies, (b) the true annual cost of the premiums, (c) the fact that the death benefits would gradually decrease, and (d) the fact that the premiums could not be satisfied out of the cash surrender value.

As we search the record and the testimony of the only two witnesses — the insured and the insurer’s agent — we can find no allegata or probata other than reported in the preceding paragraph. Thus, there are no allegations, never mind proof, that the Insurance Company had knowledge of any fraudulent misrepresentations by the only one of its agents who conducted all the oral negotiations with the insured. Indeed, there are no allegations that the agent himself fraudulently misrepresented the policies and no words imputing fraud appear in the complaint. On the contrary, at the opening of the trial, the insured’s counsel made the following concession:

At this point in the proceedings, your Honor, after discovery, we are of the opinion that the agent has not done anything fraudulent, has not made any misrepresentations in this case, that all he did was tell the Plaintiffs about a program that was put into effect by Sun Life. That any misrepresentations in the case were done by Sun Life and not by [the agent] and accordingly, pursuant to Rule 1.250, we would drop [the agent] as a party at this time.

There are four traditional elements necessary to sustain a finding of fraudulent misrepresentations. See Amazon v. Davidson, 390 So.2d 383 (Fla. 5th DCA 1980). One of these is knowledge that the representations were false. This particular element, scienter, can be established by showing (1) actual knowledge of falsity; or (2) lack of knowledge of either truth or falsity; or (3) circumstances under which the rep-resentor ought to have known, if he did not actually know, of falsity. Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA 1965).

We have little doubt that the insured will complain on rehearing that we have committed the ultimate appellate error of substituting our judgment for that of the trial court. Sensitive to this possibility, we have repeatedly scoured the pleadings and the record. Yet from our study we can find no evidence, or even any allegations, of scienter on the part of the Insurance Company at the time the representations were made. The insured’s best shot is that the agent himself believed the misrepresentations and merely relayed them as the Company’s. Maybe so, but conceding this to be true, there is still no allegation of fraud or proof of scienter on the part of the Insurance Company. There being none, we must reverse the final judgment and order the trial court to enter a new one in conformity with this opinion.

In view of this result, there is no need to address the remaining points on appeal.

REVERSED AND REMANDED.

DELL, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Willie WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AO-211.
    District Court of Appeal of Florida, First District.
    June 30, 1983.
    Rehearing Denied Aug. 16, 1983.
    Michael E. Allen, Public Defender, and Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We do not reach the merits of appellant’s complaint concerning the testimony received on the subject of appellant’s prior sale of marijuana because, though the belated objection was sustained, no motion to strike was made. See Leonard v. State, 423 So.2d 594 (Fla. 3d DCA 1982). We find no other error in the record except that the judgment inadvertently adjudges appellant to be guilty of a violation of section 944.43, Florida Statutes (1981), rather than section 944.47, which proscribes the offense laid in the information. The judgment is amended accordingly and as amended it is

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and WENTWORTH and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    WELLCRAFT MARINE CORPORATION and Crawford and Company, Appellants, v. Judy A. TURNER, Appellee.
    No. AP-56.
    District Court of Appeal of Florida, First District.
    June 30, 1983.
    Rehearing Denied Aug. 12, 1983.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   NIMMONS, Judge.

The employer/carrier (E/C) appeals from the deputy commissioner’s order awarding wage-loss benefits. The E/C asserts that the deputy erred because the claimant failed to present evidence supporting a finding of a permanent physical impairment as required by Section 440.15(3)(b), Florida Statutes. The deputy, however, ruled that the claimant was not required to present such evidence because this was the subject of a prior wage-loss hearing which resulted in an unappealed order awarding wage-loss benefits.

The hearing resulting in the appealed order was the third wage-loss hearing held before the deputy commissioner. The first wage-loss hearing in April, 1981, resulted in an order denying the claim on the grounds that the claimant had not made an adequate job search. A subsequent wage-loss claim heard in October, 1981, resulted in an order awarding the claimant wage-loss benefits, the order expressly finding that the accident resulted in permanent impairment. The E/C did not appeal that order.

Except to the extent modification is permitted by Section 440.28, Florida Statutes, deputies’ compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960); City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981); compare Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). Although the statutory scheme governing a claimant’s entitlement to wage-loss benefits affords the employer/carrier the right to contest on appropriate grounds succeeding wage-loss claims, §§ 440.-15(3)(b), 440.185(10), and 440.20, Florida Statutes, there would be no justification for requiring the parties to relitigate the element of permanent impairment after the same has been determined in a wage-loss proceeding. We hold that estoppel by judgment precludes the E/C from relitigating the issue of permanent impairment.

This, of course, does not mean that the E/C would be foreclosed from controverting the claim on the basis of an alleged change in the claimant’s condition in which case the E/C would bear the burden of proving such change in condition. The deputy’s order, after ruling that the claimant need not again prove permanent impairment, then construed the E/C’s notice to controvert as a petition for modification on the grounds of a change in condition pursuant to Section 440.28, Florida Statutes. The deputy’s order then correctly ruled that the E/C failed to prove such a change in the claimant’s condition.

The deputy commissioner’s order awarding wage-loss benefits is therefore AFFIRMED.

LARRY G. SMITH and JOANOS, JJ., concur.


author: JORGENSON, Judge.

text:
    Howard HERRING, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2110.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Aug. 24, 1983.

      Harold Mendelow, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   JORGENSON, Judge.

Howard Herring was charged in a multi-count information and found guilty by a jury of several criminal violations. We affirm the trial court judgments and sentences entered on the jury verdicts with two exceptions and remand for further proceedings.

The state has conceded that Redondo v. State, 403 So.2d 954 (Fla.1981), controls Count IV of the information and the trial court is therefore directed to vacate the conviction and sentence entered upon Count IV. See Thomas v. State, 430 So.2d 616, 617 (Fla. 2d DCA 1983).

As for Count VI, section 316.027(2), Florida Statutes (1979), is violated if the driver of a vehicle involved in a traffic accident resulting in injury or death willfully fails to remain at the scene of the accident until the requirements of section 316.-062, Florida Statutes (1979), are fulfilled. See State v. Murray, 425 So.2d 661 (Fla. 4th DCA 1983); §§ 316.027(1), (2), 316.062, Fla. Stat. (1979).

It is apparent that the purpose of sections 316.027 and 316.062 is to assure that any injured person is rendered aid and that all pertinent information concerning insurance and names of those involved in the traffic accident is exchanged by the parties.

At the time of the injury the “accident” in which Herring was involved was already a fait accompli and no injury resulted therefrom. Sections 316.027 and 316.062 were therefore not implicated. Any injury which resulted occurred after Herring’s vehicle had struck the other vehicle and the other vehicle had been stopped. It was the driver of the other vehicle’s act of restarting his vehicle that caused the injury to the passenger of that vehicle. This was an “accident” to which Herring was not a party. The trial court is therefore directed to vacate the conviction and sentence entered upon Count VI of the information.

Affirmed in part, reversed in part and remanded with directions.


author: DANIEL S. PEARSON, Judge.

text:
    MEIGS & COPE AGENCY OF FLORIDA, INC., Appellant/Cross-Appellee, v. Edythe KOFFEY, Appellee/Cross-Appellant.
    No. 82-1880.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    As Amended on Rehearing Aug. 23, 1983.
    Weaver, Weaver & Lardin and Thomas D. Lardin, and Ben J. Weaver, Fort Lauder-dale, for appellant/cross-appellee.
    Morgan, Lewis & Bockius and Richard A. Pettigrew and Phyllis S. Bean, Miami, for appellee/cross-appellant.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Finding no merit in the points raised in the main appeal, we affirm the judgment for Koffey. In her cross-appeal, Koffey contends that the trial court’s refusal to add prejudgment interest to the judgment in her favor was error because (a) such judgment was based on Koffey’s contractual claim, the amount of which, even if, ar-guendo, in dispute, became liquidated by the jury verdict; and (b) the defendant, Meigs & Cope, stipulated that Koffey was entitled to interest in the event that the defendant was found liable, thus obviating the need to instruct the jury thereon and authorizing the court to add the interest to the amount of the verdict rendered. We agree with Koffey’s contentions and find them to be amply supported by our decision in Jockey Club, Inc. v. Bleemer, Levine & Associates Architects and Designers, Inc., 413 So.2d 433 (Fla. 3d DCA 1982). Accordingly, we remand the case to the trial court with directions that it add to the judgment an award of interest calculated at six per cent per annum from October 5, 1981, the date upon which the debt was due and owing, to July 1,1982, the effective date of the amendment to Section 687.01, Florida Statutes (1982), and at twelve per cent per annum from July 1,1982, to the date of the judgment.

Affirmed as modified.

      . At the charge conference, counsel for Meigs & Cope stated, “We agree on damages, do we not? If you win you get ninety seven-five [$97,500].”

      . Again, at the charge conference, in response to the assertion by Koffey’s counsel that his client was entitled to interest, defense counsel agreed, “Ninety seven five and interest if you win.”

      . Under the insurance contract, the loss was to be paid in thirty days after submission of the proof of loss. By denying liability, the defendant waived the proof of loss required by the policy. See, e.g., Keel v. Independent Life & Accident Insurance Company, 99 So.2d 225 (Fla. 1957). Therefore, the debt became due thirty days after the loss which occurred on September 5, 1981.


author: FERGUSON, Judge.

text:
    Lawrence K. HULL, Richard G. Peterson and Shirley L. Peterson, his wife; Richard D. Polley; and Richard W. Green, Appellants/Cross-Appellees, v. MIAMI SHORES VILLAGE and Edward A. McCarthy, as Archbishop of the Archdiocese of Miami, his successors in Office, Appellees/Cross-Appellants.
    No. 82-907.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Aug. 24, 1983.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks, and Gary Brooks, Miami, for appellants/cross-appellees.

      William F. Fann, Jr., Miami Shores, McDermott, Will & Emery and J. Michael Fitzgerald, Jr., Miami, for appellees/cross-appellants.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellants commenced this action on a complaint for a declaration that the use of certain property in Miami Shores Village for administrative offices of the Archdiocese is in conflict with the zoning code, and for an injunction prohibiting construction of the administrative building.

Both parties filed motions for summary judgment stipulating that there were no disputed issues of material facts and that the matter should be disposed of by summary judgment on the point of law.

Appellants, all residents of Miami Shores Village, reside in the immediate vicinity of the property owned by the Archdiocese. Their homes, and the Archidocese’s land, are located within a district designated for single-family residential use by Miami Shores Village Ordinance No. 270 and a Schedule of Regulations which is part of the ordinance. Article I, Section 101 of the ordinance is entitled “Purposes”. It sets forth the intent of the council in enacting the comprehensive zoning plan:

The regulations ... constitute a comprehensive zoning plan that ... recognizes the predominantly one-family residential character of the Village, with all other uses of land either being incidental and convenient thereto or, if existing as a result of extraneous factors, being secondary thereto. It is the intention of this ordinance to preserve and enhance the one-family residential character of the Village, making provision for such other uses as will contribute to this end, prohibiting such uses as would be in conflict therewith, and strictly limiting the intensity and extent of permitted uses the intensification and expansion of which would detract from the predominantly one-family residential character of the Village....

Appellees rely upon a provision in the Schedule of Regulations which permits use of the land for an ancillary purpose consistent with the “one-family dwelling” characteristic of the community:

Churches, other places of worship, Sunday school buildings and uses directly related thereto.

We are called upon to review the trial court’s determination that the Archdiocese’s administrative building is directly related to a place of worship and not inconsistent with the one-family dwelling characteristic of the Village as a matter of law.

In late 1981, the Archdiocese announced plans to construct a “Pastoral Center” which would serve primarily as a facility for the transaction of administrative affairs of the Archdiocese. A use analysis produced by the Archdiocese reflected that approximately eighty percent of the structure would be utilized strictly for administrative services to the entire Archdiocese, serving 135 parishes from Stuart, Florida on the north, to Key West on the south and Naples on the west; the remaining twenty percent of the structure would be utilized as a new parish church.

The administrative services to be provided at the center were to include: evaluation of religious services conducted within the Archdiocese; administration and coordination of services provided by the Catholic Service Bureau, a social service agency; planning, coordination and evaluation of the Archdiocese’s educational system; publication of the Archdiocese’s newspaper; and administration of fund-raising activities by its office of development. As planned, , the office would employ approximately 114 people, ninety of whom would be lay people. Parking spaces were planned to accommodate 180 vehicles. Less than one percent of the administrative services provided at the center would be for the benefit of parishioners of the church located on the property.

The terms, “churches”, “places of worship” and “Sunday school buildings”, as used in the ordinance, do not, in their ordinary and usual meaning, include buildings used primarily for administration. The question then is whether the administrative building was intended to have a use directly related to “[c]hurches, other places of worship, [or] Sunday school buildings” within the meaning which those terms must be given when considered in the context of the entire ordinance.

The single-family dwelling characteristic is the dominant theme throughout the zoning ordinance. The only harmonious interpretation that can be given “churches, other places of worship, [or] Sunday school buildings”, as a permitted ancillary use, is that the activities conducted at such facilities must be, at least primarily, for the benefit of those persons who attend, or are members of, the congregation using those facilities. Normally, that would be the residents of nearby single-family homes. The construction of the ordinance which appellees advance — that as long as the administrative offices bear some relationship to a community church, it makes no difference that the offices will serve 135 other parishes and a social service agency which have no connection to the Village — would circumvent and undermine its expressed legislative intent.

We have been presented no case directly on point but appellants argue persuasively by analogy. First, they cite City of Miami Beach v. Uchitel, 305 So.2d 281 (Fla. 3d DCA 1974). There the city had enacted a zoning ordinance which permitted a certain “accessory use” restaurant license. Under an accessory use license, the owner could operate the restaurant for the primary use and convenience of tenants, but could not operate for “commercial use”. This court held that the owner, by television and newspaper advertising addressed to other than tenants, had transformed his “accessory use” license into a primarily “commercial use”, in violation of the city ordinance. See also International Company, Inc. v. City of Miami Beach, 90 So.2d 906 (Fla.1956) (where coffee shops and lounges operated in hotel under accessory use permit, it was violation to erect a prominent sign outside the hotel building which had the effect of attracting persons who were not guests of the hotel).

In the more analogous case of Spey v. Hayes, 406 So.2d 1176 (Fla. 1st DCA 1981), residents and leaseholders on Santa Rosa Island sought a mandatory injunction to require removal of improvements allegedly constructed in violation of the Island’s protective covenants and restrictions. The purpose of the restrictions in question was to preserve the B-2 zoning (covering apartment, hotel court and hotel areas) as primarily residential with commercial use limited to that which is dependent on, and provided in connection with, the primary or predominant use of the property. The protective covenants gave a general description of affiliated commercial facilities and services which would be permitted in the zone, and stated that such services could be built “as may be deemed necessary and proper ... to serve the needs of tourists and vacationers.” The defendants constructed (1) a “seven-eleven-type” convenience store, (2) a separate shopping center with a bowling alley, and (3) several efficiency apartments added on top of the commercial strip. Of the total 9,000 square feet of improvements, only 2,000 square feet was for residential living.

The appellate court in Spey noted that where the commercial services and facilities must be associated with and incidental to the residential use, they must be of such a size and nature as to serve mainly tenants of the residential facility, although not to the exclusion of the general public. In reversing a judgment for the defendants, the court held that the relative size of the residential and commercial areas, the sequence of events leading to construction of the various portions of the development, as well as the actual use of the commercial portions and lack of use of the residential portion, was evidence that the residential use was far from the predominant or primary use of the property.

Likewise, the Pastoral Center in this case serves primarily the business of the South Florida Archdiocese with little direct relationship to any Village church. But for the addition of the church, which is a comparatively insignificant part of the entire structure, the building would not remotely qualify as a use ancillary to the single-family residences in the community.

A trial judge’s findings of fact and conclusions of law come to the appellate court with a presumption of correctness and will not be disturbed unless totally unsupported by competent substantial evidence. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). However, if the trial court’s decision is manifestly against the weight of the evidence or is contrary to the legal effect of the evidence, it becomes the duty of the appellate court to reverse such a decision. Zinger v. Gattis, 382 So.2d 379 (Fla. 5th DCA 1980) and cases therein cited. There is no competent evidence in the record of this case to support the trial court’s conclusion that the structure did not violate the zoning ordinance.

By cross-appeal the Archdiocese contends that the action for declaratory and injunc-tive relief, filed some six months after the Village council had approved the plans for construction of the Pastoral Center, was a jurisdietionally defective attempt to secure an untimely and improper de novo review of the council action. We do not pass on the propriety of using the declaratory judgment proceeding in this case because, on review of the record and the briefs, it is clear that the question was never presented to the trial court. National Automobile Insurance Association v. Brumit, 98 So.2d 330 (Fla.1957). Furthermore, from the abbreviated record presented, we cannot determine to a certainty that there were factual impediments to the court’s exercise of subject-matter jurisdiction.

Reversed and remanded for further proceedings.

      . We are regularly called upon to review cases questioning the applicability of municipal zoning ordinances to religious groups. Miami Beach United Lutheran Church of the Epiphany v. City of Miami Beach, 82 So.2d 880 (Fla. 1955); Grosz v. State, 381 So.2d 316 (Fla. 3d DCA 1980); Town of Hialeah Gardens v. Hebraica Community Center, Inc., 309 So.2d 212 (Fla. 3d DCA 1975); City of Miami Beach v. Greater Miami Hebrew Academy, 108 So.2d 50 (Fla. 3d DCA 1958), cert. denied, 113 So.2d 229 (Fla. 1959).

      . It is suggested from the record and in oral argument that construction of the building was completed during the pendency of this litigation. That fact does not preclude the granting of some equitable relief if injury can be proved. Spey v. Hayes, 406 So.2d 1176, 1179 (Fla. 1st DCA 1981).


author: BERANEK, Judge.

text:
    Joseph IAPICHINO, Appellant, v. STATE of Florida, Appellee.
    No. 82-2322.
    District Court of Appeal of Florida, Fourth District.
    July 6, 1983.
    Rehearing Denied Aug. 81, 1983.

      Geoffrey C. Fleck and William R. Tunkey of Weiner, Robbins, Tunkey & Ross, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals his conviction and sentence for trafficking in cocaine under Section 893.135, Florida Statutes (1981).

This case arose as a result of a drug seizure at an airport. On April 23, 1982, the defendant was observed by an undercover detective as he entered the parking area of the Fort Lauderdale airport carrying one piece of luggage. Two other undercover agents watched him check his luggage in the parking area after making eye contact with another individual but observed no overt signs of recognition. The defendant was later handed a leather coat by this individual while inside the airport. The transfer of the coat was made without any acknowledgment by the two that they knew each other. The defendant appeared to be leaving the airport.

At this point he was stopped by two undercover agents who asked to talk to him. The agents specifically informed Iapi-chino that he had the right to refuse to talk to them. The defendant agreed to talk, and further agreed to go to a private room for a patdown, at which time cocaine was found in the leather coat. Defendant’s motion to suppress was denied, and he pled no contest to a charge of trafficking in cocaine.

The defendant maintains that his detention by the detectives was unlawful, relying on Florida v. Royer, - U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), aff’g. Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980) (en banc). However, material differences exist between the two cases. In Roy-er, the defendant’s ticket and I.D. were kept by the police officer throughout the entire period of questioning, circumstances that would give a reasonable person the impression he was not free to leave. Iapi-chino’s I.D. was never taken by the officers, and his ticket was returned after examination. In Royer the defendant never verbally consented or agreed to go to the private room, or to have his luggage searched. Iap-ichino verbally agreed to the patdown in the private room.

Finally, the initial stop of Royer was due to the fact that he exhibited a variety of characteristics commonly referred to as the drug courier profile. However, Iapichino, in addition to exhibiting characteristics common to the drug courier profile, was also observed to be involved in the transfer of the jacket with a “stranger,” who was clearly not a stranger at all. Such circumstances clearly created the requisite founded suspicion in the minds of the officers that he was engaged in criminal activity, providing grounds for the initial detention.

The defendant raises several other issues, none of which are of merit.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    David GORMAN, Trustee in Bankruptcy for International Glass and Manufacturing Co., Inc., Appellant, v. LARGO HOSPITAL OWNERS, LTD., a Florida limited partnership, and Chanen Construction Company, an Arizona corporation, Appellees.
    No. 82-2158.
    District Court of Appeal of Florida, Second District.
    July 6, 1983.
    Rehearing Denied Aug. 9, 1983.

      Walt Logan of Walt Logan, P.A., St. Pe-tersburg, for appellant.
    John W. Puffer, III, and Mark P. Buell of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.
   HOBSON, Acting Chief Judge.

David Gorman, trustee in bankruptcy for International Glass and Manufacturing Co., Inc., appeals two orders rendered by the trial court upon remand from an earlier appeal, Largo Hospital Owners, Ltd. v. International Glass & Manufacturing Co., 410 So.2d 518 (Fla. 2d DCA 1982). The orders 1) awarded Chanen Construction Company attorney fees against International Glass and 2) denied International Glass interest from the date of an earlier money judgment against Largo Hospital Owners, Ltd., as modified by us in the prior appeal. We affirm the first order and reverse the second.

With respect to the first order, we held in the earlier appeal that Chanen Construction was entitled under a contract with International Glass to recover attorney fees for services rendered by Chanen Construction’s attorneys in defending against a cause of action brought by International Glass. Since that holding became the law of the case, the trustee is precluded from arguing again on this appeal that Chanen Construction is not entitled to such fees. See Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976); Department of Transportation v. Florida East Coast Railway, 275 So.2d 289 (Fla. 3d DCA 1973). As for the amount of attorney fees awarded Chanen Construction upon remand, $37,500, we find upon an examination of the record that the trial court did not abuse its discretion in granting such a sum. Robertson v. Robertson, 106 So.2d 590 (Fla. 2d DCA 1958); In re Estate of Griffis, 399 So.2d 1048 (Fla. 4th DCA 1981).

Regarding the second order, we vacated in the prior appeal the original money judgment entered in International Glass’ favor against Largo Hospital Owners and remanded in order that the trial court could file an amended judgment which omitted prejudgment interest and reduced the principal by the amount of a previously agreed upon set-off. We agree with the trustee’s contention that the court erred upon remand in not granting International Glass interest on the modified judgment from the date that the original judgment was rendered. As held by our sister court in Gilmore v. Morrison, 341 So.2d 779, 780 (Fla. 4th DCA 1977):

[Wjhere a money judgment has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, interest on the judgment as modified runs from the date of the original judgment.

See also Atlantic Coast Line Railroad v. Watkins, 99 Fla. 395, 126 So. 489 (1930); Novack v. Novack, 210 So.2d 215 (Fla.1968). See generally 32 Fla.Jur.2d Interest and Usury § 9 (1981).

Accordingly, we affirm the order awarding Chanen Construction attorney fees, reverse the order denying interest to International Glass on the modified judgment from the date of the original judgment, and remand with directions that the trial court award interest from the date of the original judgment as allowed by section 55.03, Florida Statutes (1979).

AFFIRMED in PART, REVERSED in PART, and REMANDED.

BOARDMAN and SCHEB, JJ., concur.


text:
    Howard H. HEWITT, Appellant, v. STATE of Florida, Appellee.
    Nos. AT-347, AT-348.
    District Court of Appeal of Florida, First District.
    July 6, 1983.
    Rehearing Denied Aug. 18, 1983.
    Aaron K. Bowden, Jacksonville, and Robert Augustus Harper, Jr., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Larry H. Evans, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a Leon County Circuit Court judgment of contempt and order of commitment of appellant by reason of his refusal to obey the court’s order requiring him to testify in response to a civil investigative demand issued by the Attorney General pursuant to Section 542.-28(1), Florida Statutes (1981). The Attorney General was conducting a civil antitrust investigation authorized by the “Florida Antitrust Act of 1980,” Chapter 542, Florida Statutes. A few days prior to the order of contempt, appellant had declined to answer questions propounded by the Attorney General on the Fifth Amendment grounds that his answers would incriminate him. Subsequent thereto, the Attorney General invoked the immunity provisions of Section 542.28(11) by applying to the circuit court for an order requiring appellant to testify. Over appellant’s objection, the court granted the Attorney General’s request and entered an order requiring appellant to testify for which he would be immunized from prosecution as provided in Section 542.-28(11).

Notwithstanding the court’s order, the appellant persisted in his refusal to testify and the circuit court, after a hearing, adjudged the defendant to be in contempt of court and committed appellant to the custody of the Sheriff of Leon County for incarceration until such time as the appellant expressed a willingness to comply with the court’s order requiring him to answer the questions propounded to him by the Attorney General. Appellant appeals from that order.

Appellant’s principal contention is that Section 542.28(11), which purports to grant to the Attorney General the authority to confer immunity, is contrary to the provisions of the Florida Constitution in that the state attorneys of the various circuits, so he asserts, are the only officials constitutionally entitled to confer immunity from prosecution. Appellant relies upon the following provisions which he argues should be construed to preclude the legislature from conferring upon any official other than state attorneys the authority to grant immunity from prosecution:

Article V, Section 17
State Attorneys. — In each judicial circuit a state attorney shall be elected for a term of four years. He shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law ....
Article I, Section 15(a)
No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court ....

Neither the above provisions nor any other sections of the Florida Constitution deal with the subject of immunity. The courts of this state have long recognized that immunity from prosecution is a creature of statute. E.g. State v. Schroeder, 112 So.2d 257 (Fla.1959).

We are not persuaded that the above constitutional provisions can properly be construed to prohibit the legislature from conferring upon any official other than state attorneys the power to confer immunity from prosecution. We hold that the legislature did not contravene the above constitutional provisions by providing the immunity mechanism embodied in Section 542.28(11) of the Florida Antitrust Act.

We have examined the other points raised by appellant and find them to be without merit. The order of contempt is AFFIRMED.

BOOTH, SHIVERS and NIMMONS, JJ., concur.

      . Appellant filed both a notice of appeal (AT-347) and a petition for writ of common law certiorari (AT-348) seeking review of this civil contempt order. We determined that the order of contempt was a final order reviewable by appeal. Therefore, these have been consolidated and the petition for writ of certiorari has been treated as the initial brief. See Fla.R. App.P. 9.040(c).

      . (11) The Attorney General or a state attorney may request that any natural person who refuses to comply with any provisions of this section on the grounds that the testimony or documents may incriminate him be ordered by the circuit court to provide the testimony or the documents. Except in prosecution for perjury, a natural person who complies with a court order to provide testimony or documents after asserting a privilege against self-incrimination to which he is entitled by law may not be subject to a criminal proceeding or to the civil penalty of s. 542.21(1), with respect to the transaction to which he is required to testify or produce documents. Any natural person who fails to comply with such a court order to testify or produce documents may be adjudged in contempt and imprisoned until the time he purges himself of the contempt.