author: DANAHY, Judge.

text:
    SEARS, ROEBUCK & COMPANY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Garry C. Ganey, Sr., Appellees.
    No. 84-1438.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    William E. Sizemore and Linda Renate Klein of Thompson, Sizemore & Gonzalez, Tampa, for appellant.
    Judy L. Harrelson, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   DANAHY, Judge.

Appellee Ganey was discharged by appellant (Sears) and applied for unemployment compensation benefits. A claims examiner allowed benefits and Sears appealed. Hearings were held before an. appeals referee, who approved the action of the claims examiner in allowing benefits. On appeal by Sears, the Unemployment Appeals Commission affirmed the conclusion of the appeals referee. Sears then appealed to this court.

The issue is whether Sears established that Ganey was discharged for misconduct connected with his work. If so, Ganey would be disqualified for benefits under section 443.101, Florida Statutes (1983). As a starting point, we set forth below the definition of misconduct contained in section 443.036(24), Florida Statutes (1983):

(24) MISCONDUCT. — “Misconduct” includes, but is not limited to, the following, which shall not be construed in pari mate-ria with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

Ganey was employed as a supervisor by Sears in its St. Petersburg distribution warehouse. During a routine exit interview, a resigning female employee named Bogle alleged that Ganey had made a number of passes at her and that he had also sexually approached a minor female coworker named Foster, a high-school student who worked part time as part of a work-study program. Sears undertook an investigation and obtained written statements from Bogle and Foster alleging that Ganey had made advances to them. Ganey himself admitted that he kissed Foster on the cheek during working hours and on company property. The Sears management thereupon discharged Ganey for misconduct.

At the hearing before the appeals referee, the only witnesses were Ganey and two representatives of Sears. The written statements of Bogle and Foster were proffered by the Sears people, but Sears was unable to produce either woman to testify. Ganey did testify and in his testimony admitted that he kissed Foster on the cheek. In explaining why Ganey was discharged, the Sears representatives testified that there was a company policy against conduct of that kind and, therefore, Ganey was discharged for misconduct connected with his work.

The appeals referee properly placed the burden on Sears to establish that Ganey was discharged for misconduct. He concluded that Sears had not met its burden because the written statements of Bogle and Foster were hearsay and there was not sufficient evidence to allow such hearsay testimony to be considered for the purpose of buttressing the direct evidence. Finding that Sears had not met its burden, the appeals referee ruled in favor of Ganey and the Unemployment Appeals Commission affirmed.

We disagree with the conclusion that Sears failed to meet its burden of proof in this case. Ganey, who is 32 and married, frankly admitted that he kissed a young female co-worker who was, at least at times, under his supervision. Ganey described the kiss as completely innocuous. That, however, is not the point. The point is that the act constituted a clear violation of an express policy of his employer which was adopted in order to prevent, to the extent possible, actions against the employer based on sexual harassment. We believe, under the circumstances of this case, that Sears met its burden of establishing misconduct on the part of Ganey even though it failed to present the testimony of the two former female employees to whom Ganey allegedly made advances.

Accordingly, we reverse the order of the Unemployment Appeals Commission and remand with directions that an appropriate order be entered disqualifying Ganey from unemployment compensation benefits in this case.

REVERSED AND REMANDED.

RYDER, C.J., and FOGLE, HARRY W., Associate Judge, concur.


source: Caselaw Access Project

author: RYDER, Chief Judge.

license: Public Domain

text:
    Herman A. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 84-2254.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
   RYDER, Chief Judge.

Appellant seeks review of the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

On April 24, 1984, appellant filed a motion for post-conviction relief alleging: (1) ineffective assistance of counsel; (2) violation of the plea agreement; and (3) involuntary guilty plea. On April 30, 1984, the trial court issued an order denying the motion on the grounds that the allegations regarding ineffective assistance of counsel were legally insufficient because appellant failed to set forth facts to support the allegation, and that the other two grounds should have been raised on appeal. There is no evidence in the record that appellant appealed this order.

On July 3, 1984, appellant filed another motion for post-conviction relief which is the subject of this appeal. As grounds for this motion, appellant alleged: (1) ineffective assistance of counsel; (2) violation of plea agreement; (3) involuntary guilty plea; (4) error in sentencing appellant as a habitual offender; and (5) denial of the right to appeal. On July 24, 1984, the trial court summarily denied appellant’s second motion for post-conviction relief on the ground that appellant had previously raised the same grounds by previous motion.

Although it appears from the record before us that this is appellant’s second rule 3.850 motion, the trial court has never considered the merits of appellant’s allegations of ineffective assistance of counsel, violation of the plea agreement, involuntary guilty plea, and error in sentencing. The rule which prohibits second or successive motions for similar relief only applies where previously raised grounds have been adjudicated on their merits, not where the motion was summarily denied or dismissed for legal sufficiency. McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). Appellant’s allegation of ineffective assistance of counsel was initially denied because the facts were legally insufficient. Because the appellant provided supporting facts in his July 3 motion, the court should have considered this issue on the merits. Appellant’s allegations of failure to abide by the plea agreement and involuntary guilty plea are issues which are properly considered by use of a rule 3.850 motion. Cf. Counts v. State, 376 So.2d 59, 60-61 (Fla. 2d DCA 1979). Lastly, appellant’s allegation that he was improperly sentenced under the habitual offender statute was not raised in his initial motion and should have been considered on the merits. Cf. Gammill v. Wainwright, 357 So.2d 714, 715 (Fla.1978); Massey v. State, 389 So.2d 712, 713 (Fla. 2d DCA 1980).

Wallace’s use of Florida Rule of Criminal Procedure 3.850 to present the allegation that he was denied the right to appeal was improper. In order to invoke our review of this particular point, Wallace should have filed a petition for the issuance of a writ of habeas corpus. However, in order to expedite this matter, to save judicial labor, we treat his entreaty as a petition for a writ of habeas corpus. We thusly deny the petition and affirm the trial court’s denial on this ground.

We reverse the trial court on its actions as to the remaining grounds and remand the matter to the trial court for an eviden-tiary hearing or, in the alternative, order the trial court to attach portions of the record which conclusively show that appellant is not entitled to relief.

GRIMES and LEHAN, JJ., concur.


author: SMITH, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, etc., Appellants, v. Eugene James HOOKS and Var Heyl Lincoln-Mercury, Inc., Appellees.
    Nos. AU-70, AU-473.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1985.

      L. Floyd Price, Bradenton, for appellants.
    William C. Andrews, Gainesville, for ap-pellee/Hooks.
    Charles G. Felder and Robert E. Round-tree, Jr., of Clayton, Johnson, Quincey, Ireland, Felder & Gadd, Gainesville, for appel-lee/Var Heyl Lincoln-Mercury, Inc.
   SMITH, Judge.

Appellant Auto-Owners Insurance Company, Inc. (“Auto-Owners”) brings this consolidated appeal from a final judgment for compensatory and punitive damages pursuant to jury verdict in litigation arising out of Auto-Owners’ wrongful replevin of an automobile. Both appellees, Eugene James Hooks (“Hooks”), owner of the automobile, and Var Heyl Lincoln Mercury, Inc. (“Var Heyl”), who sold the car to Hooks, received compensatory and punitive damages. Appellant contends that the punitive damage award to Hooks was erroneous, and that Var Heyl was improperly awarded both compensatory and punitive damages. Appellant further maintains that the court erred in awarding attorney’s fees. We reverse the judgment in favor of Hooks for punitive damages, and reverse the judgment in favor of Var Heyl as to both compensatory and punitive damages. We affirm the awarding of attorney’s fees to both appellees, but reverse and remand for redetermination of the amounts awarded.

The litigation below had its genesis in February of 1981, when Clarence Loflin, an insured of Auto-Owners, transferred title of his 1980 Lincoln Continental automobile to Troy Arnold. Mr. Arnold gave in payment what subsequently turned out to be a forged cashier’s check. As a result, Auto-Owners was required to reimburse Loflin for his monetary loss, and became subro-gated to whatever rights Loflin had in the automobile. After Mr. Arnold’s purchase, the automobile was transferred in rapid succession to a number of auto companies (four, to be exact, including Var Heyl, in a period of seven days), ending its journey among auto dealerships with Var Heyl.

In March 1981, Hooks purchased the automobile from Var Heyl, receiving title and possession. Later, on July 7, 1981, Auto-Owners filed a complaint for replevin of the automobile against Hooks. On July 9, 1981, Auto-Owners applied for and received from the circuit court an ex parte prejudgment writ of replevin under Section 78.068, Florida Statutes (1981), after posting a bond for $26,000 as security for any damages sustained by Hooks by reason of the writ being wrongfully obtained. The Alachua County Sheriff’s Department took possession of the automobile from Hooks eight days later, and subsequently delivered it to Auto-Owners.

On July 24, 1981, Hooks filed a motion to dissolve the prejudgment writ of replevin, which was denied by the trial court. Hooks then filed a third party complaint against Var Heyl for breach of warranty of title. Var Heyl, in turn, filed an amended answer asserting claims against Auto-Owners under Chapter 78, and for negligence and malicious prosecution, seeking compensatory and punitive damages, costs and attorney’s fees. Later, Hooks filed a counterclaim against Auto-Owners seeking compensatory and punitive damages, as well as attorney’s fees and costs, alleging that Auto-Owners improperly obtained the prejudgment writ of replevin.

On Var Heyl’s motion, the trial court, on December 30, 1981, dissolved the prejudgment writ of replevin, and granted summary judgment for Hooks and Var Heyl, and against Auto-Owners, based upon its action in wrongfully obtaining the writ of replev-in. A jury trial was held on the issue of damages, resulting in verdicts for Hooks and Var Heyl for compensatory and punitive damages (see footnote 1, supra).

On appeal, Auto-Owners first contends that the trial court erred in allowing the punitive damages issues to go to the jury. The law is well settled that in order to be entitled to an award of punitive damages, a complaining party must show that the defendant acted with malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others. Walsh v. Alfidi, 448 So.2d 1084, 1086 (Fla. 1st DCA 1984). Punitive damages may not be assessed on the basis of mere negligence, U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1064 (Fla.1983). Even gross negligence, by itself, will not support the award of punitive damages. White Construction Co., Inc. v. Dupont, 465 So.2d 1026 (Fla. 1984); Smith v. Brantley, 455 So.2d 1063 (Fla. 2d DCA 1984). In ruling on Auto-Owners’ motion for a directed verdict, the trial court was required to evaluate the evidence in the light most favorable to ap-pellees, drawing every reasonable inference flowing from the evidence in appel-lees’ favor. On the other hand, Auto-Owners’ motion for a directed verdict should have been granted if there was no evidence upon which the jury could legally base a verdict for such damages in favor of appel-lees. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1121 (Fla.1984); Pritchett v. Jacksonville Auction, Inc., 449 So.2d 364 (Fla. 1st DCA 1984).

Judged by the foregoing standards, we conclude that Auto-Owners’ motion for directed verdict on the issue of punitive damages should have been granted. As the basis for punitive damages, appellees emphasized, both here and below, the testimony of James W. Campbell, claims representative for Auto-Owners who served as its representative in this action. Mr. Campbell admitted that before filing Auto-Owners’ complaint for replevin, he made no contacts with Hooks directly, and made no determination that Hooks was engaged in, or was about to engage in, any conduct that would place the car in danger of removal, concealment or destruction. Nothing in Auto-Owners’ complaint, however, implies that any such direct contact was made with Hooks, nor is there any direct or indirect implication that Auto-Owners had actual knowledge of any fact tending to show that Hooks intended to dispose of the car in any manner. Campbell’s further testimony explained that the mere fact that title had changed hands four times prior to being transferred to Hooks, and the fact that Hooks had an apparently transferable title to the car (which Auto-Owners thought it rightfully owned), making it possible for Hooks to transfer the car to yet another party, gave Auto-Owners reason to fear that the car might change ownership again prior to clarification of the rights of the parties. Upon comparison of Campbell’s testimony with the allegations of the sworn complaint (see footnote 2, supra), we conclude that these allegations are not only consistent with Campbell’s testimony; they are not susceptible to any other reasonable interpretation. The complaint contains no factual misstatements or misrepresentations, nor does it allege or insinuate any improper conduct on the part of Hooks, nor of Var Heyl, for that matter.

Upon close examination of the statute, Section 78.068(1), we note that it authorizes the issuance of a prejudgment writ “when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition.... ” The complaint accurately set forth the facts relied upon by Auto-Owners to satisfy this requirement. Further, subsection (2) of the statute provides:

2. This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed, (emphasis supplied)

Section 78.068(2), Florida Statutes. The above-quoted subsection, as the emphasized words indicate, thus imposes a burden upon the trial court to determine the sufficiency of the facts alleged. Here, the complaint did not allege facts sufficient to meet this statutory standard, not because of any misstatement of the facts, but because of Auto-Owners (and the trial court’s) erroneous assumption concerning the law applicable to those facts, particularly the legal effect of the forged cashier’s check involved in the insured’s sale of the vehicle, in relation to the rights of a subsequent good faith purchaser under the motor vehicle title transfer laws.

Admittedly, the court below found that Auto-Owners wrongfully obtained the issuance of the prejudgment writ. Auto-Owners does not contest the correctness of this ruling, nor its consequent liability for compensatory damages to Hooks as provided in Chapter 78, Florida Statutes. The issue, so far as the punitive damage awards are concerned, is whether the circumstances would permit a jury finding that Auto-Owners acted in wanton or reckless disregard of the rights of appellees. We hold that they would not. The actions of Auto-Owners were directed exclusively to its attempt to avail itself of a statutory remedy. Any mistake or misapprehension of the law involved, according to the specific directive of the statute (Section 78.-068(2)), was a matter for consideration by the trial judge before issuance of the prejudgment writ. Absent a showing that Auto-Owners made false allegations, either deliberately or with reckless disregard for the rights of appellees — as opposed to legally unsound or insufficient allegations— the mere fact that the trial judge whose duty it was to protect the rights of appel-lees under the law erroneously granted the prejudgment writ cannot, in our view, afford the basis for assessment of punitive damages.

The theory upon which appellees’ claims to punitive damages proceeded would extend the law allowing the award of punitive damages to unprecedented extremes. This theory would open the door to an award of punitive damages in every instance in which a party is ultimately unsuccessful in his resort to the court in pursuit of a legal remedy. Cf., Medel v. Republic Nat. Bank of Miami, 365 So.2d 782, 785 (Fla. 3d DCA 1979), cert. den., 376 So.2d 75 (Fla.1979). The drastic sanction of punitive damages is particularly inappropriate here since appellees, pursuant to the terms of the very statute under which they construct their legal theory, could have avoided the consequences they complain of by the simple act of posting a bond and securing the release of the replevied automobile. Section 78.068(4), Florida Statutes. Of perhaps even more fundamental significance, appellee Hooks could have secured an order immediately (as Var Heyl later did) dissolving the prejudgment writ by citing to the trial court the correct and controlling law, or, if his counsel did cite the correct law, by doing it more convincingly. Accordingly, submission of the punitive damage issue to the jury, and the entry of judgment in favor of Hooks and Var Heyl for such damages, was error.

Auto-Owners next contends that the trial court erred in allowing any and all of the legal claims of appellee Var Heyl to go to the jury and in giving Var Heyl’s malicious prosecution jury instruction. Var Heyl based its claims of negligence and malicious prosecution upon Auto-Owners’ invocation of Section 78, Florida Statutes, against appellee Hooks. Auto-Owners’ point here is well taken. Regarding the negligence claim, Var Heyl is evidently contending that Auto-Owners’ investigation into the status of the sought-after automobile in Hooks’ possession was negligently performed, and hence made the very decision to seek a writ of replevin from the trial court a negligent act. Assuming, ar-guendo, that the facts adduced below establish negligence on Auto-Owners’ part for its conduct of this lawsuit, we nevertheless find that Var Heyl fails to state a cause of action.

Although there is little reported case law on the subject, the few courts that have addressed the question have declined to impose liability on a person who “negligently” initiates a civil action. Thus, in Tappen v. Ager, 599 F.2d 376 (10th Cir. 1979), it was held that Kansas law did not impose a duty on litigants to utilize reasonable care either in filing a lawsuit or investigating its basis. Similarly, the court in Drago v. Buonagurio, 109 Misc.2d 192, 439 N.Y.S.2d 818 (S.Ct., S.T.1981), aff'd, 89 A.D.2d 682, 454 N.Y.S.2d 37 (A.D. 3d Dept. 1982), declined to recognize a cause of action for “negligent commencement” of a medical malpractice suit. The court noted that “[sjubjection to civil litigation improperly instituted or maintained through the negligence of a suitor is part of the price citizens pay for a free society....” The court also opined that recognition of the plaintiff’s novel claim would “unduly inhibit the recourse to the courts for the resolution of honest disputes.” 439 N.Y.S.2d at 820. Finally, in Pantone v. Demos, 59 Ill.App.3d 328, 16 Ill.Dec. 607, 375 N.E.2d 480 (1978), the court refused to allow a cause of action for “willfully and wantonly” filing a lawsuit. Pointing out that at common law a party was not liable for instituting any suit where the court had subject-matter jurisdiction and the party had not acted maliciously or without probable cause, the Pantone court found that the public has an interest in free access to the courts, and since

... the very purpose of a court of law is to determine whether an action filed by a party has merit, ... we refuse to recognize a rule which would render a litigant ... liable in tort for negligently (or even, willfully and wantonly) failing to determine in advance that which, ultimately, only the courts could determine.

16 Ill.Dec. at 611, 375 N.E.2d at 484, quoting Lyddon v. Shaw, 56 Ill.App.3d 815, 14 Ill.Dec. 489, 494, 372 N.E.2d 685, 690 (Ill. App.1978). We adopt the Pantone court’s reasoning as our own and hold that, on the facts before us, Var Heyl cannot maintain a cause of action for “negligent initiation of a lawsuit.”

Var Heyl’s malicious prosecution claim is equally lacking in merit. For one thing, Var Heyl prematurely filed this action before the original action against Hooks was complete. Waite v. Ward, 413 So.2d 830 (Fla. 1st DCA 1982); Cazares v. Church of Scientology of Cal., 444 So.2d 442, 447 (Fla. 5th DCA 1983); Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980). Moreover, in order to maintain a cause of action for malicious prosecution, a plaintiff must establish six elements:

(1) the commencement or continuation of an original civil or criminal judicial proceeding;
(2) its legal causation by the present defendant against the plaintiff;
(3) its bona fide termination in favor of the plaintiff;
(4) the absence of probable cause for such prosecution;
(5) the presence of malice; and
(6) damages conforming to legal standards resulting to the plaintiff, (citation omitted)

Gause v. First Bank of Marianna, 457 So.2d 582, 584 (Fla. 1st DCA 1984). Failure to plead and prove any element is fatal to the plaintiff’s claim. Id. As Auto-Owners correctly points out, two elements of a malicious prosecution action are missing here. First, Var Heyl was not a defendant in the original proceedings; appellee Hooks was the sole defendant (other than Ford Motor Credit Company, as lien holder) in the action initiated by Auto-Owners to secure a prejudgment writ of replevin. Var Heyl was brought into the case as a third party defendant by Hooks. Although Var Heyl attempts to establish itself as a party to the proceedings below within the meaning of Chapter 78, this statute offers no language supportive of Var Heyl’s position so far as a malicious prosecution claim is concerned. In any event, we have been furnished no authority for the proposition that the right to a malicious prosecution action extends to parties against whom the plaintiff has initiated no legal proceeding. See 52 Am.Jur.2d, Malicious Prosecution, § 56:

The right to bring an action for malicious prosecution is personal to the person directly aggrieved, so that the action cannot be maintained by one who was not a party to the allegedly malicious prosecution.

Cf. Atlantic Plaza Partnership v. Daytona Sands, Inc., 357 So.2d 761 (Fla. 1st DCA 1978) (where party filing malicious prosecution counterclaim was not a party to the initial lawsuit, plaintiff there could not be held liable regarding malicious prosecution claim asserted against it).

Finally, it is clear that colorable probable cause existed for the action as originally begun by Auto-Owners, as the trial court below initially granted the writ and denied Hooks’ motion to dissolve. The law is clear that, where the facts are undisputed, the issue of whether probable cause for initiation of an action exists is a question of law for the trial court. Gause v. First Bank of Marianna, supra, at 584; see also Bell v. Anderson, 414 So.2d 550, 551 (Fla. 1st DCA 1982), pet. for rev. den., 424 So.2d 760 (Fla.1982). The trial court found probable cause for Auto-Owners to initiate and secure a prejudgment writ of replevin. That the trial court subsequently saw fit to correct its own error when presented with different law does not mean that the initial probable cause finding may simply be ignored. Totally absent from Hooks’ and Var Heyl’s arguments is any recognition of the fact that they were dealing, in effect, with a “stolen” car, and that, but for the beneficence of the Legislature in determining that antecedent maleficence should not be visited upon subsequent title holders, they would have found themselves in much the same predicament as Auto-Owners and its insured. Accordingly, both the compensatory and punitive damage awards to Var Heyl and against Auto-Owners were in error. Var Heyl was entitled, however, to judgment against Hooks pursuant to its counterclaim for the rental of a substitute vehicle to Hooks while the automobile was held by Auto-Owners; and Hooks was entitled to receive and presumably did receive reimbursement for this expense as a part of his compensatory damage award against Auto-Owners.

Lastly, Auto-Owners contends that the trial court erred in awarding attorney’s fees to Var Heyl, and in considering the punitive damages recovery in awarding attorney’s fees to appellee Hooks. Regarding the fees awarded to Hooks, it is clear from the record below that Hooks’ recovery of punitive damages was a factor considered in determining a reasonable amount both by the experts and by the trial court. Since we have reversed the punitive damage award, the fees awarded to Hooks’ attorney must be-reversed and remanded for rehearing and award of a fee that does not take into account the erroneous punitive damages award. Venema v. Tost, 426 So.2d 1028 (Fla. 3d DCA 1983).

Regarding the attorney’s fees awarded Var Heyl, while we find that it was not error to award fees, the amount actually awarded had an improper basis. As to the propriety of any award to Var Heyl, we believe recovery is here sanctioned by North American Van Lines, Inc. v. Roper, 429 So.2d 750 (Fla. 1st DCA 1983), which held that

where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interest, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.

429 So.2d at 752, quoting Baxter’s Asphalt, Etc. v. Liberty County, 406 So.2d 461, 467 (Fla. 1st DCA 1981), quashed on other grounds, 421 So.2d 505 (Fla.1982). Var Heyl clearly would not have been involved in litigation with Hooks except for Auto-Owners’ action in securing a prejudgment writ of replevin, which was “obtained wrongfully” under the replevin statute, Section 78.068(l)-(3), Florida Statutes (1981). Upon being made a third-party defendant by Hooks, Var Heyl was compelled to defend title to the automobile. Furthermore, as a third party defendant Var Heyl was, under Rule 1.180(a), Florida Rules of Civil Procedure, entitled to pursue any defenses to Auto-Owners’ replevin action that Hooks could assert. Var Heyl did directly and successfully pursue such defenses by moving for and obtaining dissolution of the prejudgment writ of replevin, and by obtaining a summary judgment finding Auto-Owners liable for wrongfully obtaining the issuance of the writ.

However, attorney’s fees are recoverable under the “wrongful act” exception recognized in North American Van Lines only to the extent that they are incurred in litigation with a third party in connection with the dispute between the party seeking fees and the third party. 22 Am.Jur.2d, Damages, § 166; see also Warren v. McLouth Steel Corp., Ill Mich.App. 496, 314 N.W.2d 666 (1981) (“... reasonable expenses incurred in the primary litigation created by the wrongful acts of another may be recoverable but the expenses incurred in litigation with the actual wrongdoer are not1... ”). Here, Var Heyl can only recover those expenses incurred in defending the breach of title warranty claim brought against it by Hooks; that is, its expenses reasonably incurred until such time as the court granted summary judgment against Auto-Owners on its replevin claim. Any expenses Var Heyl generated in pursuing its malicious prosecution and negligence claims against Auto-Owners were not incurred “in connection with” its defense of Hooks’ claim against it, and hence are not recoverable in this action. Accordingly, the award of attorney’s fees to Var Heyl must be reversed and remanded for redetermination.

Both appellees have filed petitions for attorney’s fees in this court pursuant to Rule 9.400, Florida Rules of Appellate Procedure. These petitions are denied because neither appellee can be considered a “prevailing party” within the meaning of Florida Rule of Appellate Procedure 9.400(a). Dept. of Labor & Employment Security v. Am. Bldg. Main., 449 So.2d 932, 933 (Fla. 1st DCA 1984); see also Thaller v. Waterford Point Condominium Apartments, Inc., 437 So.2d 248 (Fla. 4th DCA 1983).

The portions of the judgment awarding punitive damages to Hooks, and awarding compensatory and punitive damages to Var Heyl, are reversed and set aside. The award of attorney’s fees to Hooks and Var Heyl is affirmed, except as to amount, and the cause is remanded for redetermination of the awards and entry of revised judgment as directed in this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

MILLS and NIMMONS, JJ., concur.

      . The jury verdict awarded $12,815.35 compensatory and $100,000 punitive damages to Hooks; and $5,000 compensatory and $25,000 punitive damages to Var Heyl. In post-trial proceedings, the trial court also ordered payment of attorney's fees to Hooks and Var Heyl.

      . Auto-Owners’ complaint set forth in detail the facts upon which it based its claim as subrogee, including Arnold's purchase of the automobile from its insured, Loflin, by means of a forged cashier's check. Because of this, the complaint alleged, the automobile was secured by Arnold "by fraud, misrepresentation and theft.” The complaint further related “upon information and belief” that through several intervening transfers, defendant Hooks was in possession of the car. The complaint then alleged that Auto-Owners “is the rightful owner” of the vehicle, and that the "entity” (unnamed) from which defendant Hooks took title "had no legal title,” and could not transfer legal title to Hooks. It alleged further that Hooks’ detention was wrongful, "though defendant [Hooks] may well believe ... otherwise,” also based on Auto-Owners’ information and belief. The body of the complaint then concluded with the following paragraph which provides the basis for a great deal of the verbiage appearing in the record of the trial below, and in the briefs and argument on appeal:
      12. Due to the fact that Defendant, HOOKS, is believed by Plaintiff to hold a Florida Automobile Title Certificate to the said vehicle, although invalid, it would be possible for Defendant, HOOKS, to transfer the vehicle to an innocent purchaser during the pendency of this action, which action may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of this Court, which would at best further frustrate Plaintiff's rights, unduly complicate this litigation, and require the adding of additional and, at this time, unknown parties to this action.

      . In issuing the prejudgment writ, and in denying Hooks’ July 24, 1981 motion to dissolve, the trial court obviously relied upon case law predating Florida’s Uniform Commercial Code, citing in the order of denial Federal Insurance Company v. Mercer, 237 So.2d 243 (Fla. 4th DCA 1970); Avis Rent-A-Car System, Inc. v. Harrison Motor Co., 151 So.2d 855 (Fla. 2d DCA 1963); and Home Insurance Co., Etc. v. Small, 389 So.2d 1255 (Fla. 1st DCA 1980). The trial judge later found, and so stated in the record, that the law had changed upon adoption of the Uniform Commercial Code. See, Florida Department of Corrections v. Blount, Etc., 411 So.2d 930 (Fla. 1st DCA 1982). It is pertinent to note that the trial court, during the jury charge conference put of the jury’s presence, stated: "I’m going to be quite candid with you, gentlemen. If I had been shown the correct law at the time I issued that writ, I never would have issued it. I was not. The law changed 180 degrees. I was shown the old law and upon that, that writ was issued.”

      . To the extent that the punitive damage claims against Auto-Owners may be considered analogous to an action for abuse of process, some guidance may be afforded by reference to the principles governing such actions, which were recently stated in Bothmann v. Harrington, 458 So.2d 1163, 1169 (Fla. 3d DCA 1984):
      Abuse of process involves the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed ... (citation omitted). For the cause of action to exist there must be a use of the process for an immediate purpose other than that for which it was designed, (footnote omitted) There is no abuse of process, however, when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose.... (emphasis in original).

      . The Florida Supreme Court has pointed out that Florida courts have never recognized a separate tort for negligently swearing out a warrant for arrest, and that such cases may be brought only in the form of civil suits for malicious prosecution. Pokorny v. First Federal Savings & Loan Association of Largo, 382 So.2d 678, 683 (Fla. 1980). See also Jestic v. Long Island Savings Bank, 81 A.D.2d 255, 440 N.Y.S.2d 278 (A.D. 2d Dept.1981), in which the court rejected an asserted action for “negligent prosecution" in an action by an employee who alleged that a negligent investigation conducted by her employer, the results of which were turned over to the FBI, resulted in her indictment and subsequent acquittal on embezzlement charges.

      . See footnote 3, supra. Under the circumstances presented here it cannot reasonably be argued that Auto-Owners' legal position was so patently unsound as to in itself suggest a reckless indifference to or callous disregard for the law. That the experienced trial judge not only agreed with Auto-Owners’ position initially but adhered to the same view even after an adversary hearing would tend to dispel any such notion. We note that the Third District, in Bothmann v. Harrington, 458 So.2d 1163 (Fla. 3d DCA 1984) (cited in this opinion, supra), in a case involving disparagement of title or property by the improper filing of a notice of lis pendens, alluded to the distinction between "an improper filing in a procedural sense,” and a "wrongful filing in a substantive sense,” holding in that case that only the latter will support an action for disparagement of property, "because only it meets the requisite falsehood element of the action." 458 So.2d at 1168. The same distinction, in our opinion, may be used to characterize Auto-Owners’ filing for a prejudgment writ of replevin.


author: PER CURIAM.

text:
    Humberto Hernandez NAPOLES, Appellant, v. STATE of Florida, Appellee.
    No. AW-326.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1985.

      Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant challenges the trial court’s departure from the recommendation of the sentencing guidelines, urging that the court failed to provide sufficiently clear and convincing reasons for its departure as required by Fla.R.Crim.P. 3.701 d.ll. We reverse.

The Court imposed an 18 month sentence rather than following the guidelines recommendation of “any nonstate prison sanction.” We agree that five of the six reasons for departure provided by the trial court by way of a “checklist” are inadequate. Alford v. State, 460 So.2d 1000 (Fla. 1st DCA 1984). The remaining reason checked: “Number of times offender previously given probation after conviction,” merits some discussion. The reason is clearly improper as the record reveals that appellant had been on probation only once: at the time he committed the instant offense. The guidelines computation sheet reflects that this fact was already taken into consideration in computing the recommended sentence. Therefore, it should not be utilized as an aggravating factor in departing from the guidelines. Burch v. State, 462 So.2d 548 (Fla. 1st DCA 1985).

Although in Alford, this court looked with disfavor upon the use of a “checklist” or “laundry list” when stating reasons for departing from the sentencing guidelines, the fact that such a list was used does not compel reversal. However, since five of the reasons given for departure fall short of being clear and convincing and the remaining reason is improper, the appellant’s sentence should be vacated and the cause remanded for resentencing.

Accordingly, the sentence is REVERSED.

WENTWORTH, THOMPSON and WIG-GINTON, JJ., concur.


author: JOANOS, Judge.

text:
    CITY OF TAMARAC and Adjustco, Appellants, v. Aris C. VARELLAN, Appellee.
    No. AY-232.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1985.
    Rehearing Denied March 1, 1985.

      H. George Kagan of Miller, Hodges & Kagan, Deerfield Beach, for appellants.
    R. Cory Schnepper and Jay M. Levy of Hershoff & Levy, Miami, for appellee.
   JOANOS, Judge.

Employer and carrier appeal from a workers’ compensation order in which the deputy commissioner found that Varellan suffered a compensable injury when he allegedly contracted hepatitis-B virus during his police academy training while swimming in an algae ladened pool, and subsequently sustained another compensable injury when he received a blow to his abdomen, causing a contusion to his liver and aggravating his hepatitis. The deputy commissioner relied upon the testimony of Dr. Xenakis that the probable cause of Varellan’s hepatitis, based upon the history given by Varellan that he had been swimming in a contaminated pool for several months, was the contaminated swimming pool, possibly mouth-to-mouth resuscitation, or other unknown causes. Dr. Xenakis had no idea when Varellen contracted hepatitis. He discussed the average incubation period of 50-180 days for hepatitis-B virus and stated that he had seen shorter incubation periods, the shortest period being 21 days, in cases of blood-borne hepatitis. Dr. Xenakis felt a blow to a swollen organ could be very damaging, but he could not say if the blow Varellan suffered affected his hepatitis.

Because there is no evidence that the pool in which Varellan swam was contaminated with hepatitis-B virus and because there is a lack of evidence that Varel-lan suffered more severe symptoms or an extended length of illness from the blow to his abdomen than he would have suffered otherwise, we find no competent, substantial evidence to support the deputy commissioner’s findings.

In cases of an employee’s suffering a disease or physical defect, as a result of a compensable accident, distinguished from external occurrences, the claimant must prove a causal connection by some clear evidence, rather than showing it was logical or by a preponderance of the probabilities it arose from the employment. Department of Corrections v. Lussier, 451 So.2d 968 (Fla. 1st DCA 1984). Varellan has failed to produce any clear evidence which shows a causal connection between his contracting hepatitis-B virus and his swimming in a pool which was not shown to have been contaminated.

Accordingly, the deputy commissioner’s order is reversed.

MILLS and BARFIELD, JJ., concur.


author: FRANK, Judge.

text:
    James HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 84-685.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   FRANK, Judge.

Following a jury’s conviction of the appellant for the crimes of sexual battery and burglary/assault, the trial court sentenced him to concurrent terms of sixty years imprisonment on each of a two count information and it retained jurisdiction over one-third of both sentences contrary to the provisions of Section 947.16(3), Florida Statutes (1983). The concurrent sentences were imposed pursuant to the sentencing guidelines. By operation of Section 921.-001(8), Florida Statutes (1983), parole is no longer available to persons who are sentenced under the guidelines. Thus, the retention of jurisdiction, a practice which historically had relevance only when parole was available, is inappropriate. Carter v. State, 464 So.2d 172 (Fla. 2d DCA 1986); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984).

We therefore strike the trial court’s retention of jurisdiction but affirm the judgments and sentences in all other respects.

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


author: OTT, Acting Chief Judge.

text:
    Dorman E. PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 84-803.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

A jury convicted appellant of three counts of uttering a forged check. On appeal, he raises three points. For the reasons stated below, we affirm.

First, appellant argues that the trial court erred in refusing his requested instruction on his defense of authorization. A defendant is entitled to have the jury properly instructed on any valid defense supported by the evidence. Palmes v. State, 397 So.2d 648 (Fla.1981). See also Corujo v. State, 424 So.2d 43 (Fla. 2d DCA 1983). Obviously, authorization to sign another’s name is a valid defense to uttering a forged instrument. See Barker v. State, 78 Fla. 477, 83 So. 287 (1919). See also 36 Am.Jur.2d Forgery § 42 (1968). In Barker, the trial court refused to give the requested instruction on the defense of authorization. Our supreme court reversed, pointing out that this defense was not covered in the other instructions given by the court. 78 Fla. at 483, 83 So. at 289.

Here, the appellant requested essentially the same instruction that was denied in Barker, Unlike Barker, however, we find that the trial court’s instruction to the jury covered this defense. The trial court instructed the jury that the state had to prove beyond a reasonable doubt that: 1) appellant passed or offered to pass as true a check, 2) appellant knew the check was false or forged, and 3) appellant intended to injure or defraud some person or firm. The second and third elements of the offense would necessarily negate any defense of authorization. If the jury had believed the appellant had authority to write the check, it could not find the state had proven a crime.

We conclude, therefore, that this defense was adequately and fairly presented to the jury in the trial court’s instruction, and that it was not error to refuse the specialized instruction requested by the appellant. Mathew v. State, 209 So.2d 234 (Fla. 2d DCA 1968).

In so ruling, we note that the trial court refused to give appellant’s requested instruction, which is specialized and requires comment on the evidence. Instead, the trial court gave the standard jury instruction used in criminal cases. See Fla.Std.Jury Instr. (Crim.) (pp. 12-15, 23-24, 29, 168) (1981 ed.). This is the correct practice as the standard jury instructions were designed to cover all aspects and elements of the statutory offense, and to avoid unnecessary comment on the evidence.

Next, appellant argues that the trial court erred in denying his motion for mistrial based upon prosecutorial impropriety. The record does not reveal any remarks by the prosecutor about defense counsel that would require a mistrial. See generally Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1984).

Finally, the appellant argues that the trial court erred in denying his motion for a mistrial based upon the prosecutor’s remark on appellant’s invocation of his Miranda rights. Appellant invited the rebuttal by arguing to the jury that he (appellant) had not made any prior inconsistent statements, when appellant had, in fact, exercised his right to remain silent and made no statement at all. The trial court was correct in denying the appellant’s motion for a mistrial where the prosecutor “rose to the bait” east by the appellant. See Brown v. State, 367 So.2d 616, 625 (Fla.1979).

Appellant’s conviction and sentence are affirmed.

AFFIRMED.

DANAHY and SCHOONOVER, JJ„ concur.

      . The appellant requested the following instruction:
      There was evidence presented to you to the effect that the Defendant, DORMAN EDWARD PERKINS, was authorized to sign the name of HERBERT D. RALEY in each of the cases being tried before you. I charge you that such evidence may be a defense to the charges pending before you. If you believe that the Defendant was given such authority. i.e., that HERBERT D. RALEY's signature was affixed to the checks with his knowledge and/or consent, you should find the Defendant Not Guilty.
      Or, in the event that you have a reasonable doubt that MR. RALEY authorized the Defendant to write the checks, you should give the Defendant the benefit of this doubt and find him Not Guilty.

      . The following exchange occurred before the jury:
      MR. MIELE (Defense Attorney): In short— in conclusion, rather, you’ll find that’s put in before you that the defendant has always had the same position — the same position. He has never changed position. The State Attorney will want you to believe that, oh, yeah, after the — after he was found out, then he says, yes I did this, this, this, and this. Okay. That’s not so. They haven’t produced one witness, which is generally what they want to do, their habit of doing, that shows he’s made any inconsistent statements prior to this or any denials before you.
      MR. YOUNG (Prosecutor): Judge, he knows .full well the defendant invoked his Miranda rights.
      THE COURT: Let’s not get into that.
      MR. MIELE: Objection, objection, objection, objection, Judge. Your Honor, a mistrial.


text:
    Russell MATHISON, Appellant, v. STATE of Florida, Appellee.
    No. 84-1114.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We reverse defendant’s sentences for burglary and attempted robbery. The burglary in this case was a first degree felony punishable by life. The trial court applied the sentencing guidelines and sentenced defendant on the basis of a presumptive sentence which resulted from scoring the primary offense, burglary, as a life felony. However, at the time of defendant’s sentencing, the guidelines’ category 5 burglary scoresheet did not provide for scoring a first degree felony punishable by life. Thus the burglary charge should have been scored as a first degree felony. Vileta v. State, 454 So.2d 792, 794 (Fla. 2d DCA 1984).

If the scoresheet had reflected the correct number of points, the total would have produced a presumptive sentence of three years. Accordingly, defendant’s concurrent four-year sentences on each charge were outside the guidelines. Because no reasons were given for the departure, we reverse and remand for re-sentencing.

RYDER, C.J., and OTT and LEHAN, JJ., concur.


author: DANAHY, Acting Chief Judge.

text:
    Walter L. CULLARS and Linda Lea Cullars, husband and wife, Appellants, v. MANATEE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 84-1157.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      Diane E. Billings and Bernard F. Walsh of Schultz & Walsh, Bradenton, for appellants.
    A.H. Lane of Lane, Trohn, Clarke, Bertrand & Williams, Lakeland, for appellee.
   DANAHY, Acting Chief Judge.

Appellants (Mr. and Mrs. Cullars) brought this suit to recover damages for injuries sustained by Mrs. Cullars in an automobile accident. On May 22, 1981, Mrs. Cullars was employed as a deputy sheriff by appellee (Manatee County). On that date, while driving a vehicle owned by Manatee County, she stopped at an intersection intending to make a left turn. A vehicle directly behind her also stopped, but a third vehicle driven by William Bernard Frazier failed to stop and struck the second vehicle, which in turn collided with the automobile occupied by Mrs. Cullars.

Frazier’s liability insurer paid its policy limits of $10,000 to Mrs. Cullars. Manatee County had purchased automobile liability insurance coverage with limits of liability of $500,000 per person and $500,000 per accident, the County being the named insured; however, the County's policy did not provide uninsured motorist coverage.

In this action, Mr. and Mrs. Cullars sought to establish that Manatee County had a duty to provide uninsured motorist coverage to Mrs. Cullars or, alternatively, that there was uninsured motorist coverage under the County’s policy because the County did not make a proper rejection of uninsured motorist coverage. The trial judge dismissed the Cullars’ complaint with prejudice and they appeal. We reverse.

We reject the Cullars’ first theory of liability; that is, that there was a duty on the part of Manatee County to provide uninsured motorist coverage to Mrs. Cul-lars. The facts alleged in the complaint simply do not present a theory under which such a duty could be found. But the complaint clearly alleged that Manatee County failed to make a proper rejection of uninsured motorist coverage when it acquired its liability policy. At the time of Mrs. Cullars’ accident, the law did not require that such a rejection be in writing. § 627.-727(1), Fla.Stat. (1983); Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982). There is authority for the proposition that an employee has standing to question whether .his employer made a proper rejection of uninsured motorist protection. Lane v. Waste Management, Inc., 432 So.2d 70 (Fla. 4th DCA 1983). Whether there was a proper rejection of such coverage is a question of fact. Kimbrell.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SCHOONOVER, J., and SHAFER, ROBERT T., Associate Judge, concur.


text:
    Jack HENDERSON, Appellant, v. Marilyn HENDERSON, Appellee.
    No. 84-1185.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      Craig M. Spanjers of Stanley, Wines, Bennett, Murphy, Spanjers & Helms, Au-burndale, for appellant.
    Arthur C. Fulmer of Smith, Fulmer & Smith, Lakeland, for appellee.
   DANAHY, Judge.

Four months after the final judgment which dissolved the marriage of the parties the husband filed a petition to decrease the award of permanent alimony because of a change in his finances. After a hearing, the trial court denied the petition. The husband appeals that order. We affirm.

The husband has experienced wide fluctuations in his finances, largely because his solely-owned corporation is in the throes of reorganization in the bankruptcy court. The bankruptcy proceedings were not concluded at the time of the hearing on the husband’s petition. We can understand why the trial judge found that the evidence of these constant changes in the husband’s finances did not meet his burden of a “strong showing” of a “permanent” decline in his ability to make the alimony payments. Schiff v. Schiff 54 So.2d 36 (Fla. 1951); Thibodeaux v. Thibodeaux, 461 So.2d 1035 (Fla. 2d DCA 1985); Bish v. Bish, 404 So.2d 840 (Fla. 1st DCA 1981). It may be that when the husband’s finances become stabilized, through termination of the bankruptcy reorganization or otherwise, he will be able to prove that any post-judgment financial misfortune is of such a material, involuntary, and permanent nature as would entitle him to' relief. On this record he has not done so.

AFFIRMED.

GRIMES, A.C.J., and FRANK, J., concur.


text:
    J.D.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 84-1213.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, and Larry Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the defendant’s adjudication of delinquency for committing an act of criminal mischief. Contrary to defendant’s arguments, there was sufficient evidence to justify the trial court’s denial of defendant’s motion for acquittal. However, we reverse and remand for correction of his sentence.

The trial court sentenced defendant to “indefinite community control.” Section 39.11(l)(a) 1, Florida Statutes (1983), provides that when the court imposes community control as a sanction for an adjudication of delinquency

the duration of such supervision or program shall not be longer than the sentence that could be imposed if the child were committed for the offense.

Section 39.11(3), Florida Statutes (1983), states that

[a]ny commitment of a delinquent child ... shall be for an indeterminate period of time, but the time shall not exceed the maximum term of imprisonment which an adult may serve for the same offense.

The maximum term of imprisonment for the offense involved here is 60 days. § 775.082(3)(b), Fla.Stat. (1983). Therefore, on remand the trial court should correct the sentence to an indeterminate period of time not to exceed 60 days.

The state argues that the statutory scheme of section 39.11(3) is consistent with the general rule applied in adult proceedings that a defendant may not be placed on probation for a period of time exceeding the possible maximum period of incarceration. State v. Holmes, 360 So.2d 380 (Fla.1978). The state points out that even though the general rule is as stated above, under section 948.04, Florida Statutes (1983), an adult may be placed on probation for six months for a second degree misdemeanor. The criminal mischief offense involved in this case is a second degree misdemeanor. § 806.13(l)(b), Fla. Stat. (1983). The state argues, therefore, that we should direct the trial court to correct the length of community control to an indeterminate period of time not to exceed six months. The basis of the state’s argument is that if the legislature created an exception regarding probationary terms for second degree misdemeanors by adults, the legislature must not have intended to limit a community control program for second degree juvenile misdemeanants to only 60 days. Such a short period of time, the state contends, would not be long enough to accomplish even minimal rehabilitation. We disagree. The foregoing exception to adult probationary periods is statutory. If the legislature had intended that type of exception to apply to juveniles, we presume the legislature would have enacted a statute to that effect.

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and OTT and LEHAN, JJ., concur.


author: BOARDMAN, EDWARD F. (Ret.) Judge.

text:
    Moye SCRUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1412.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, Bartow, L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, EDWARD F. (Ret.) Judge.

Appellant Moye Scruggs appeals from his final judgment and sentence for sexual battery. As his sole point on appeal, appellant contends the trial court erred by refusing to allow him to present evidence or argument relative to sentencing. We agree.

In January of 1983, appellant pled nolo contendere to a charge of sexual battery and received two years probation. As a result of a violation of his probation, appellant was adjudicated guilty of the sexual battery and sentenced to five and a half years in prison.

At the hearing on the violation of probation, the following colloquy occurred.

THE COURT: We’re talking now about how long you’re going to be gone, Mr. Scruggs. Anything else you want to say? The Court at this time revokes your probationf,] and it is the judgment, order, and sentence of the Court that you be adjudicated guilty of the offense for which you were on probation and confined in the Florida State Prison for a term of five and one half years therefor with credit for whatever time you may have already served.
MR. STONE: Your Honor, may we be allowed to be heard as to the sentencing?
THE COURT: Okay. What?
MR. STONE: Your Honor, the Court allowed me to look at the probation file that had been drawn up. Your Honor, the probation file has a guideline work sheet.
THE COURT: If you think there is some error in the numbers[,] appeal it. Don’t try to go into that here this morning. I gave you the bottom of the range that we’re operating in which is probably the top of the lower range so—
MR. STONE: Your Honor, my position is that he falls in the position of the three and a half to four year range[,] and I feel that this is the—
THE COURT: Appeal it. Let's don’t worry about it, right—
MR. STONE: For the record, Your Honor, is the Court — it is within the guidelines or the Court’s going outside the guide—
THE COURT: It is the guidelines, five and a half.
MR. STONE: For the record, Your Honor, I am going to have to object for not only because I can’t be heard as to what the guidelines should be but there’s been no evidence introduced or rebutted as to what his prior record is.
THE COURT: Okay.

Rule 3.720(b), Florida Rules of Criminal Procedure, provides that at sentencing a trial court “shall entertain submissions and evidence by the parties which are relevant to the sentence.” The language of the rule is mandatory. Mask v. State, 289 So.2d 385 (Fla.1973); State v. Hohl, 431 So.2d 707 (Fla. 2d DCA 1983); Riley v. State, 423 So.2d 576 (Fla. 2d DCA 1982). Here, however, the trial court clearly violated the rule by refusing to allow appellant’s counsel to submit evidence relative to the appropriate sentence under the guidelines and thereby deprived appellant of his day in court.

Accordingly, we vacate the sentence and remand for resentencing consistent with this opinion.

REVERSED and REMANDED.

GRIMES, A.C.J., and DANAHY, J., concur.


author: SCHEB, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert Anthony TAMBURRI, and Stephanie Calcagino, Appellees.
    No. 84-1510.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      Jim Smith, Atty. Gen., Tallahassee, Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellant.
    James Marion Moorman, Public Defender, Douglas P. Chanco, Asst. Public Defender, Bartow, for appellee Stephanie Cal-cagino.
    No appearance for appellee Robert Tam-burri.
   SCHEB, Acting Chief Judge.

The state appeals the trial court’s order granting defendant Stephanie Calcagino’s motion to suppress certain evidence taken when a police officer arrested her outside his jurisdiction. We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(B). We reverse.

The state charged Calcagino by information with fraudulent use of a credit card in violation of sections 817.61 and 817.67(2), Florida Statutes (1983) and with defrauding an innkeeper in violation of section 509.-151(1), Florida Statutes (1983). The state also charged her with forgery.

Calcagino filed a motion to suppress the evidence and any statements made as a result of her arrest by Officer Brian Lawrence. She alleged the arrest was illegal because Lawrence had no jurisdiction to arrest her outside the city limits of Punta Gorda.

At the suppression hearing where Officer Lawrence and Deputy Lynn Fuller of the Charlotte County Sheriffs Department testified, the following facts were adduced. On May 4, 1984, Officer Lawrence of the Punta Gorda Police Department investigated a report of the fraudulent use of a credit card at a local Howard Johnson’s motel. After Officer Lawrence arrived at the motel, the desk clerk told him that a couple had used a credit card to obtain a room there. The clerk informed him that when she checked the credit card with Barnett Bank, Gloria King, a bank employee, told her the card had been reported stolen.

While at the motel, Officer Lawrence telephoned the bank and talked with King. She told him that she had a report from Lauderhill Lakes, Florida, that the credit card in the name of Susan Mulliner had been stolen and that approximately $2,400 had been charged on it. She further said that Stephanie Calcagino would probably be in possession of the stolen credit card and Calcagino would probably be with Robert Tamburri, the co-defendant. Officer Lawrence also recalled King telling him that the card had been used in various places including Punta Gorda, Fort Myers and Sarasota.

The desk clerk proceeded to give Officer Lawrence a description of the couple’s car and said that “a man and woman” would be driving it. The clerk also gave Officer Lawrence the guest’s check-in paper signed in what purported to be Susan Mulliner’s signature and the slip of paper where the credit card was embossed with the name of Susan Mulliner. Officer Lawrence then requested his dispatcher to put out a BOLO (be on the lookout) for the car, a brown Toyota with Florida Registration Number ZKT 810 occupied by two persons.

Shortly thereafter, Deputy Fuller of the Sheriff’s Department received the BOLO over his radio while on patrol. A few minutes later he saw this vehicle and stopped it outside the city limits in Charlotte County. He told the occupants he was stopping them at the request of the Punta Gorda Police Department in reference to a stolen credit card, and he asked them to wait until the city police arrived. ■

Officer Lawrence, in his police uniform, drove his city patrol vehicle to the place where the Toyota was stopped. Officer Lawrence believed he identified himself as a police officer when he arrived at the scene. He requested identification of the occupants of the Toyota and advised them of their Miranda rights. He asked Calcag-ino for the credit card without mentioning Mulliner’s name. Calcagino produced a credit card in the name of Susan Mulliner issued by Barnett Bank. At this point Officer Lawrence placed Calcagino under arrest for fraudulent use of a credit card.

The trial judge ruled that it was the sheriffs department that stopped the Toyota and a municipal police officer of the City of Punta Gorda who arrested Calcagino. Since the police officer effected the arrest outside his jurisdiction, the court viewed the arrest as illegal and granted Calcagi-no’s motion to suppress.

The state argues that the trial court erred in suppressing the evidence because Officer Lawrence effected the arrest outside his jurisdiction. We view the officer’s arrest of Calcagino as a valid citizen’s arrest; therefore we reverse.

The “under color of office” doctrine does not prevent officers from making otherwise valid citizens’ arrests because they happen to be in uniform or otherwise clothed with indicia of their position when making the arrest. State v. Phoenix, 428 So.2d 262 (Fla. 4th DCA 1983), approved, 455 So.2d 1024 (Fla.1984). The fact that Officer Lawrence may have identified himself as an officer when he stopped defendants’ car did not prevent him from making a valid citizen’s arrest. Phoenix, 428 So.2d at 267.

A seizure of a person made by a police officer acting outside his jurisdiction as the action of a private citizen is permissible where the officer does not use the color of his office to gain access to evidence not available to a private citizen. State v. Williams, 366 So.2d 135 (Fla. 2d DCA 1979). Here, Officer Lawrence had sufficient valid grounds on which to make the arrest before he left his jurisdiction. See Hyer v. State, 462 So.2d 488 (Fla. 2d DCA 1984). From the information King and the desk clerk gave him when he was at the motel, it was reasonable for him to conclude that a credit card in the name of Susan Mulliner had been stolen and that Stephanie Calcagino was probably in possession of the card. The desk clerk informed him a couple had used the card to obtain a room and gave him tangible evidence of that fact. Additionally, when King informed him the card was stolen she also told him that $2,400 had been charged on the card and the card had been used in the general vicinity. Armed with these facts Officer Lawrence had probable cause to believe a felony had been committed before he left his jurisdiction. Thus, Officer Lawrence’s arrest of Calcagino was a valid citizen’s arrest. See Hyer; Phoenix, 428 So.2d at 265.

Where an arrest is a proper citizen’s arrest, evidence obtained as a result of that arrest is admissible at trial. See Hyer. Thus, it follows that the credit card and any other evidence that Officer Lawrence obtained at the time he arrested Cal-cagino were properly seized and should not have been suppressed.

Accordingly, we hold that the trial court erred in granting Calcagino’s motion to suppress. We reverse and remand for proceedings consistent with this opinion.

SCHOONOVER, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


text:
    Samuel Dean HART, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-1571.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.

      James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy Ann Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was convicted on charges of armed robbery and accessory after the fact and was sentenced as a youthful offender to concurrent terms of four years incarceration followed by two years community control on each charge. Thereafter, an affidavit for violation of the community control program was filed against him. Defendant pleaded nolo contendere to the violation. The court revoked the community control and sentenced defendant to twenty years imprisonment on the armed robbery charge and four years on the other charge to run concurrently. We affirm the revocation of community control but reverse the sentence imposed.

Defendant first contends that the trial court was without jurisdiction to revoke the community control. We disagree. See Crosby v. State, 462 So.2d 607 (Fla. 2d DCA 1985); Loveless v. Bryson, 460 So.2d 942 (Fla. 2d DCA 1984).

However, we agree with defendant’s second contention that the sentence was excessive. Section 948.06, Florida Statutes (1983), provides that upon revocation of a defendant’s community control program, the trial court may “impose any sentence which it might have originally imposed before placing the ... offender into community control.” See also § 958.14, Fla.Stat. (1983). This court recently held in a factually similar case that a youthful offender could receive a maximum of four years of incarceration (with appropriate jail credit) and ... two years of community control. Crosby, at 608.

Upon remand the defendant, of course, should be given proper credit for time served. See State v. Jones, 327 So.2d 18 (Fla.1976); Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981).

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and OTT and LEHAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Wesley TWELVES, Appellee.
    No. 84-1631.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.
    Jim Smith, Atty. Gen., Tallahassee, Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellant.
    James Marion Moorman, Public Defender, Bartow, Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for ap-pellee.
   FRANK, Judge.

The State’s appeal, initiated in accordance with Section 924.07(9), Florida Statutes (1983), focuses upon the propriety of the lower court’s determination to mitigate or depart “downward” from the sentencing guidelines prescribed in Rule 3.701 of the Florida Rules of Criminal Procedure. The State does not contend, of course, that departure from the guidelines was in excess of the lower court’s authority granted it by Rule 3.701. Mitigating a guideline sentence is expressly contemplated in Rule 3.701(d)(ll) in the circumstance where “there are clear and convincing reasons” to warrant rejection of the presumptive sentence. The State attacks the lower court’s reduction of the appellee’s sentence; it suspended all but eighteen months of a ten-year term. We sustain the sentence imposed by the lower court.

It “is not the function of this court to re-evaluate the exercise of the trial judge’s discretion in this area.” Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). Here, no less than is true when a trial court enhances a guideline sentence, our function is to canvass the record to determine whether the lower court abused its discretion in departing from the guidelines.

In the present matter, the trial court suspended the ten-year sentence for reasons that are “clear and convincing.” The appellee’s military record discloses a substantial amount of combat, the receipt of a Purple Heart and a Bronze Star. Although the appellee developed a post-military record of criminality resulting in convictions and imprisonment, there was competent expert evidence before the trial court that the appellee suffers from Post-Traumatic Stress Disorder which may be remedied by the PAR Drug and the Bay Pines Vietnam Veterans Outreach programs. Moreover, friends, relatives and employers testified that they intend to assist the appellee in his effort to achieve rehabilitation. Based upon the foregoing, we are convinced the trial court acted within its discretionary power.

Accordingly, the judgment and suspended sentences are affirmed.

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


author: SCHOONOVER, Judge.

text:
    Harlan SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 84-1816.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.
    James Marion Moorman, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

Appellant, Harlan Smith, appeals from an order finding him guilty of violating his probation. We find merit only in appellant’s contention that the trial court erred in sentencing him.

On April 1, 1981, appellant was sentenced to two years incarceration, with all but six months suspended, and placed on probation for a period of three years for violating sections 812.014 and 812.015, Florida Statutes (1979). On June 18, 1984, appellant was found guilty of violating the terms of his probation. The court terminated appellant’s probation and then sentenced him to serve another five-year term of probation. Appellant contends that since five years is the maximum permissible sentence of combined incarceration and probation for his original crime, the court erred in requiring him to serve an additional five years of probation.

Appellant’s original sentence of two years incarceration followed by three years probation was within the five-year maximum sentence allowed for the crime he committed. See Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). If the court had modified this sentence by adding five years of probation to the original sentence, the total period of probation under the original order would have exceeded the maximum sentence and the court would have erred. Schertz v. State, 387 So.2d 477 (Fla. 4th DCA 1980). The court did not modify its original order, however, but instead revoked appellant’s probation. Upon revoking probation, a court may impose any sentence it could have originally entered less any jail time previously served as a part of the sentence. State v. Holmes, 360 So.2d 380 (Fla.1978). The court therefore had the authority to place appellant on a new term of probation for a period of five years. Although the court was not required to deduct the time already served on probation, it erred in failing to credit the jail time appellant had previously served on the original sentence. Holmes.

Accordingly, we affirm the order finding appellant guilty of violating the terms of his probation, but remand with directions that the order placing appellant on probation be modified to allow credit for jail time previously served on the original sentence.

Affirmed in part, reversed in part, and remanded.

SCHEB, A.C.J., and DANAHY, J., concur.


text:
    Donald R. McGINTY, Appellant, v. STATE of Florida, Appellee.
    No. 84-2506.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1985.
    James Marion Moorman, Public Defender, Bartow, Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
   PER CURIAM.

This appeal is taken from a judgment and sentence entered upon a guilty plea. Pursuant to section 924.06(3), Florida Statutes, Rule 3.172(c)(iv), Fla.R.Crim.P., and Rule 9.140(b)(1), Fla.R.App.P., there is no right to a direct appeal in such case. The statute requires that .. such a defendant shall obtain review by means of collateral attack.” See, also, Robinson v. State, 373 So.2d 898 (Fla.1979) and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). The latter case states that an appeal may be taken only after a collateral attack and mentions the two modes of collateral attack: a motion to withdraw plea and a Rule 3.850 motion to vacate.

Counsel for appellant, the Public Defender for the Tenth Judicial Circuit, has notified this court by means of a “statement of judicial acts to be reviewed” that this appeal is from a guilty plea, the sentence is within the maximum provided by law and, further, has attached a certificate of the clerk of the trial court that no motion to withdraw plea or Rule 3.850 motion to vacate has been filed by appellant in this case.

After receipt of this document filed by the public defender, this court has entered its usual order to show cause directed to appellant, pro se, explaining that any issue as to voluntariness of the guilty plea must now be raised by collateral attack. Appellant has not responded to the show cause order and this appeal must be dismissed because this court is without jurisdiction.

We write this opinion because we sense some concern by appellate counsel as to the ethics of filing such a statement of judicial acts to be reviewed on the ground that the document may appear to be an act taken against the interests of the client. Indeed, a few appellate public defenders have filed such a document reluctantly and most have not filed them at all. We perceive no substantial cause for concern. First, the statute and rules cited above make this a jurisdictional question which the court is obliged to resolve even if not raised by either counsel. Secondly, counsel is not expressing an opinion as to the merits of the client’s contentions, only that an appeal does not presently lie. In effect, counsel is merely channeling the client’s complaints on the guilty plea to the proper methods of attack, a motion to withdraw or a Rule 3.850 motion, and, if these are denied, an appeal from the denial. In doing this, the appellate attorney has served the client’s interest by assisting the court in channeling a claim where it can be heard on the merits. Surely, if Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) permits appointed counsel to state in a brief that there is no merit in the appeal, merely changing the method of attack is permissible. Counsel is also serving the interest of other appellants by alerting this court at an early date since counsel will not have to file a brief on the merits in a case that will be ultimately dismissed anyway and may devote more time to writing briefs in other cases.

Accordingly, the above-styled appeal is hereby dismissed.

GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Nathan Russell DARBY, a/k/a William Reed, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AT-124.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1985.

      Michael E. Allen, Public Defender, Ann Terry Carley, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Darby appeals from a final order granting the state’s motion for extension of speedy trial time and denying appellant’s motion for severance, resulting in appellant’s conviction and sentence. We reverse.

On December 2, 1982, by amended information, Darby and a co-defendant were charged with grand theft, which they had allegedly committed on September 25,1982. His co-defendant was also charged in the same information with knowingly giving a false name and false date of birth to a police officer.

On March 10, 1983, the state filed a motion for extension of speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191(f)(5), permitting a court to order an extension of speedy trial time if exceptional circumstances are shown to exist. The specific provision of subsection (f)(5), relied upon by the state, requires “a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant.” (e.s.) The state alleged that the co-defendant had hired new counsel who had informed the state that he could not be prepared for the trial which had been set for March 23,1983. As a result, it was further alleged that severance of the two defendants’ trials would require the travel of a witness from Miami to Tallahassee for two separate trials, thereby causing an undue burden to the state. During the hearing, appellant moved for a severance as authorized by Florida Rule of Criminal Procedure 3.152(b)(1) and (i), providing that a court “shall order a severance ... before trial ... [where] necessary to protect a defendant’s right to a speedy trial.” (e.s.) The trial judge granted the state’s motion for extension of speedy trial time, but denied the motion for severance.

On April 20, 1983, after the speedy trial period had expired, the defense orally renewed its earlier objections to the extension of time and to the denial of the severance, and moved for discharge of the defendant. The trial judge denied the motion for discharge, whereupon the appellant pled nolo contendere to the charge of grand theft, reserving his right to appeal the denial of the motion for discharge.

[I] The result reached by the trial court in denying a motion to sever and granting a motion to extend the time for speedy trial illustrates the inconsistency in applying simultaneously rules 3.191(f)(5) and 3.152(b)(l)(i). On the one hand, the trial judge may, under rule 3.191(f)(5), allow an extension of speedy trial time in order to accommodate a co-defendant “where there is reason not to sever the cases in order to proceed promptly with trial of the defendant” (e.s.). On the other hand, rule 3.152(b)(l)(i) mandates severance of the defendants to protect a defendant's right to a speedy trial. See Rico v. State, 463 So.2d 1172 (Fla. 2d DCA 1984).

The state argues that an appropriate reason for extending the time for speedy trial is if severance were granted and the time for trial of both cases not extended, a material witness would be forced to travel from Miami to Tallahassee for the purpose of testifying at the two separate trials. The question then becomes whether the state’s desire “to try [the] defendants together for the sake of convenience is a reason not to sever [the cases] when a defendant’s right to a speedy trial is at stake.” Westlake v. Miner, 460 So.2d 430, 432 (Fla. 1st DCA. 1984) (e.s.). Faced with this issue in West-lake, the court stated that “when Rule 3.152 and Rule 3.191 are read in pari mate-ria, we must conclude that the convenience of a joint trial is not an exceptional circumstance justifying a state’s motion for extension of the speedy trial time.” Id. Furthermore, if an order of severance is necessary to protect a defendant’s right to a speedy trial, the right to a speedy trial “takes precedence over the mere convenience to the state of trying” the defendants together. Machado v. State, 431 So.2d 337, 339 (Fla. 2d DCA 1983) (e.s.).

We therefore must conclude that the trial judge erred in denying appellant’s motion for severance and granting the state’s motion for extension of time for speedy trial.

Nevertheless, we follow the earlier path of this court in Westlake, 460 So.2d at 433, and certify, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(B)(i), the following to be a question of great public importance:

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

Reversed and remanded with instructions to discharge the defendant.

MILLS and ZEHMER, JJ., concur.

      . An issue not addressed in Westlake because the case arose out of a petition for writ of prohibition to prohibit further trial proceedings, but one which we feel constrained to note from this record, is whether a defendant’s motion to sever his trial from that of his co-defendant can be considered to have been made in good faith when the moving defendant does not go forward with trial of the cause against him, but later, as here, enters a plea of nolo contendere to the charge, reserving only his right to appeal the denial of the motion for discharge. A motion to sever, made for the purpose of preserving the defendant’s right to speedy trial, would seem to be an implicit representation to the court that if the motion were granted, the defendant would then be prepared to go forward with the trial on its merits within the time yet remaining under the speedy trial rule. Perhaps the defendant could be said to no longer be bound by such representation once the motion is denied; yet, by analogy; a defendant who files in bad faith a demand for speedy trial, when he is obviously not prepared to go to trial within the sixty-day period provided in rule 3.191(a)(2), is not entitled to rely upon the lesser time period in which to be tried. State v. Kaufman, 421 So.2d 776 (Fla. 5th DCA 1982); State v. Wright, 389 So.2d 289 (Fla. 3d DCA 1980).


text:
    STATE of Florida, Appellant, v. Robert William HUME, Appellee.
    No. AW-279.
    District Court of Appeal of Florida, First District
    Feb. 11, 1985.

      Jim Smith, Atty. Gen., Gregory S. Cos-tas, Asst. Atty. Gen., Tallahassee, for appellant.
    Thomas W. Kurrus and Larry G. Turner of Turner, Kurrus & Griscti, P.A., Gaines-ville, for appellee.
   SMITH, Judge.

The state appeals an order of the trial court granting appellee’s motion to suppress certain conversations between appel-lee and an undercover police officer transmitted and recorded outside appellee’s home by a “body bug” worn by the officer, as well as physical evidence seized subsequent to appellee’s arrest. The state challenges all three grounds relied upon by the trial court in the order granting suppression. We affirm in part, reverse in part, and remand for further proceedings.

The trial court first found that State v. Sarmiento, 397 So.2d 643 (Fla.1981), prohibited the interception of conversations within appellee’s home and the simultaneous transmission of these conversations to the arresting officers outside the home, as violative of appellee’s reasonable expectation of privacy. The trial court so ruled in spite of the amendment to Article I, Section 12 of the Florida Constitution, effective January 3, 1983, which provided that that provision was to be construed in conformity with the Fourth Amendment of the United States Constitution as further interpreted by the United States Supreme Court. This was error.

The amendment to Article I, Section 12, applies because the electronic surveillance here occurred after January 3, 1983, the amendment’s effective date. State v. Lavazzoli, 434 So.2d 321 (Fla. 1983); State v. Ridenour, 453 So.2d 193 (Fla. 3d DCA 1984). Under United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), reh. den., 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971), the surreptitious interception of conversations between a criminal defendant and an agent of the state in the defendant’s home, and simultaneous transmission of these conversations to other agents of the state outside the home, does not violate the Fourth Amendment to the United States Constitution. Accordingly, we join the third district in holding that Sarmiento does not survive the amendment to Article I, Section 12 of the Florida Constitution. State v. Ridenour, supra. Therefore, the trial court erred in relying on Sarmiento to suppress the conversations between appellee and the undercover officer in this case.

However, the trial court did not err in granting appellee’s amended motion to suppress physical evidence seized without warrant subsequent to appellee’s arrest inside his residence. The trial court found as a matter of fact that the undercover officer inside appellee’s residence, after signaling to officers waiting outside that an illicit drug transaction had been consummated, on his own initiative opened the front door to allow the outside officers to enter and arrest appellee. The trial court further found that after appellee was placed under arrest, the undercover officer returned to a bedroom closet — where appellee had earlier that same day shown the officer cocaine, sensemilla buds, and drug paraphernalia— and seized the described contraband. The trial court found that in effecting appel-lee’s arrest the officers had failed to comply with Section 901.19(1), Florida Statutes (1981), the “knock and announce” statute. The trial court also found that the warrant-less seizure of contraband from appellee’s bedroom closet was not justified by any exception to the warrant requirement. Hence, the trial court held, all physical evidence seized subsequent to appellee’s arrest must be suppressed.

Concerning the alleged violation of Section 901.19(1), we note first the well-settled rule that the statute must be strictly complied with. Hurt v. State, 388 So.2d 281, 284 (Fla. 1st DCA 1980), pet for rev. den., 399 So.2d 1146 (Fla. 1981). Although there are four judicially recognized exceptions, none has been shown to apply here. Hurt v. State, supra. Although there was testimony below indicating that the undercover officer had a subjective fear of possible violence prior to appellee’s arrest, the officer admitted that he had no specific information regarding appellee’s propensity for violence, but rather based his fear on past “buy-bust” experiences in general. Absent a specific basis for fearing either imminent peril to the undercover officer or a defendant’s ability to escape or destroy evidence, the failure to “knock and announce” based on general information cannot be excused. Hunsucker ¶. State, 379 So.2d 1043 (Fla. 1st DCA 1980).

In opposition to the foregoing analysis, the state points to a line of cases dealing with “buy-busts” which collectively hold that the “knock and announce” statute does not apply where an undercover officer involved in an illicit transaction inside a defendant’s residence departs, on a ruse, and later reenters followed by other officers who assist in the defendant’s arrest. See, e.g., Griffin v. State, 419 So.2d 320 (Fla.1982). These cases have found, in terms of the Fourth Amendment, that

... [T]he fact that one officer left and returned on a ruse may have benefited the officers by allowing them the added protection of other armed officers to assist in the arrest, but such conduct did not constitute an additional intrusion into the defendants’ premises since such intrusion had already been lawfully accomplished by the undercover officers....

State v. Steffani, 398 So.2d 475, 478 (Fla. 3d DCA 1981), aff'd. sub nom. Steffani v. State, 419 So.2d 323 (Fla.1982), quoting Lawrence v. State, 388 So.2d 1250, 1253 (Fla. 4th DCA 1980), approved in Griffin, supra. We note, as the state points out, that the arresting officers possessed a warrant for appellee’s arrest and performed no act to gain entry to appellee’s residence because the undercover officer opened the door for the arresting officers. Thus, the state argues, the case at bar presents no facts requiring suppression based on Section 901.19(1), Florida Statutes.

We find, however, the cases alluded to by the state all involve a factual nuance not present in this case: namely, reentry into a defendant’s residence by the undercover officer. Here, the undercover officer never left appellee’s residence; rather, he allowed entry of the arresting officers by opening the front door. While it is arguable that this fact constitutes a distinction without a difference, with respect to the rationale identified in Steffani, we are not prepared to so hold as a matter of law, especially given the mandate to strictly construe exceptions to Section 901.19(1). Hurt v. State, supra; Cf. State v. Steffani, supra, at 478, n. 7:

... [W]e do not adopt the extreme position advocated by the state that the use of the defendant’s premises as a place of illegal business effects a waiver of his right to challenge any and all subsequent police intrusions into his home.

Accordingly, we find that the state has failed to overcome the presumption of correctness we must give to the trial court’s ruling on this issue. DeConingh v. State, 433 So.2d 501, 504 (Fla.1983), cert. den., — U.S.—, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984).

Finally, we hold that the trial court was correct in suppressing evidence seized without a warrant from appellee’s walk-in closet subsequent to appellee’s arrest. Since appellee’s arrest was unlawful, the seizure subsequent to his arrest was unlawful. McGraw v. State, 387 So.2d 444, 446 (Fla. 1st DCA 1980), quashed on other grounds, 401 So.2d 1325 (Fla.1981); Busch v. State, 392 So.2d 272, 273 (Fla. 1st DCA 1981), cert. den., 452 U.S. 909, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981); Walker v. State, 433 So.2d 644 (Fla. 2d DCA 1983).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WENTWORTH and WIGGINTON, JJ., concur.

      . The amendment provides as follows:
      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 by 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.

      . Neither party has challenged in this court the trial court’s findings of fact.

      . Section 901.19(1) provides:
      If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

      . The exceptions are:
      (1)where the person within already knows of the officer’s authority and purpose;
      (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm;
      (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose; or
      (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted.

        Jones v. State, 440 So.2d 570, 573 (Fla. 1983), citing Benefield v. State, 160 So.2d 706, 710 (Fla.1964).

      . Absent the circumstance of an initially unlawful arrest, the seizure of contraband from appel-lee's bedroom closet would have been lawful, since his Fourth Amendment expectation of privacy was waived by his actions in granting the undercover officer access to that area and in displaying the contraband for the officer's perusal. State v. Schwartz, 398 So.2d 460 (Fla. 4th DCA 1981); State v. Perry, 398 So.2d 959 (Fla. 4th DCA 1981).