author: CAMPBELL, Judge.

text:
    Joann DEWBERRY, Appellant, v. Ralph DEWBERRY, Appellee.
    No. 83-1760.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Rehearing Denied Sept. 11, 1984.

      David A. Maney, Tampa, for appellant.
    Peter N. Meros of Meros & Smith, P.A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

The appellant/wife appeals a final judgment of dissolution of marriage. In doing so, she raises two points on appeal. First, whether the trial court erred in a lump sum award to her of assets from the marriage totalling approximately $220,291. She argues that that award is inequitable under the holdings of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and its progeny, in light of the husband’s remaining assets of some $900,000. Appellant’s second point is whether the trial court erred in awarding her only $24,000 per year permanent alimony in light of the husband’s annual income of some $112,000 in 1982? We affirm the trial court’s final judgment.

Appellant/wife was awarded nearly all of the liquid assets of the parties. The husband’s remaining assets, except for a river front lot in which his equity was approximately $10,000, consisted solely of his individually owned stock in the business corporations that produce his income from which he pays appellant’s permanent alimony-

The pertinent facts surrounding the parties’ marriage and accumulated properties are as follows.

The parties were married to each other in June, 1957. Both had just graduated from college at the time of the marriage, the husband having obtained an engineering degree and the wife having obtained a degree in physical education. Neither had any assets at the time of the marriage.

Two children were born of the marriage, a daughter, age twenty-three, and a son, age seventeen. The son has joined the Marine Corps, so his support and custody was not an issue.

The parties moved to Florida in 1960, and a business, Park Auto and Truck Supplies, was started. The business was initially a partnership among the husband, his stepfather, and Rennie Jamison. The business was started from scratch, with each partner contributing $10,000. The husband’s investment came from marital funds. Some of the money came from the wife’s teachers retirement funds. All of the initial investment has been paid back with interest, and that money was put into a joint account with his wife. The stock in Park Auto Truck Supply has always been in the husband’s name alone.

The business has expanded so that there are now three corporations involved: Park Auto and Truck Supplies, Inc., a wholesale jobber; Tri-City Warehouse, a warehouse distribution center; and Park Investment Company, which owns the property on which the other two are located and two apartment complexes, and is the controlling organization for the investments.

The husband states he is an employee of Park Auto Truck Supply and is paid a gross weekly salary of $1,300. His actual net after deductions for tax and social security is $700 a week. The difference between his regular salary and the $112,000 reported in 1982, consisted of bonuses of $20,000 per year gross before taxes, and income by way of director’s fees. The main value of the husband’s business is the work that he actually puts into it, along with that of his partner. He works long hours, often 7 a.m. to 7 p.m.

The wife worked during the early years of the marriage and after the birth of the children. The business did not initially provide enough income to the parties, so the wife continued teaching and quit work in 1972, when the businesses became more profitable. The husband encouraged her to quit work. Her teaching certificate was allowed to lapse in 1975. She did not work outside of the home after 1972, with the exception of some part-time work a few hours a week at a bowling alley during the separation.

During the marriage, the parties accumulated the assets distributed by the final judgment. Also during the marriage, Mrs. Dewberry acquired by gift and inheritance, twenty-five percent interest in certain properties in Texas. The wife states her interest in these properties was valued at $32,-855. The husband states her interest was worth approximately $50,000.

The final judgment of dissolution of marriage entered on August 3, 1983, awarded to the wife, as lump sum alimony, the marital home and contents valued at $125,-000, certificates of deposit in the amount of $50,000, Nautical Coating Company stock in the amount of $10,000, Southeast Bank stock in the amount of $8,000, and a note from Park Investment in the amount of $27,291.53. The wife also retained her inherited property. Additionally, she was awarded permanent alimony in the amount of $2,000 per month.

We are prohibited by Conner v. Conner, 439 So.2d 887 (Fla.1983), from making a determination that Mrs. Dewberry was “shortchanged.” However, even if we could make such a determination, we would not do so in this case. Neither can we say that Mrs. Dewberry has received a “pittance” from the assets of the seventeen-year marriage. McSwigan v. McSwigan, 450 So.2d 284 (Fla. 4th DCA 1984). Whatever standard we are left to apply in considering the adequacy or equity of an award of property and/or alimony in a dissolution of marriage proceeding, the test is not how large or small an award is, but whether it is equitable.

The concept of marriage as a partnership entitles each of the partners, upon termination, to an equitable share, not necessarily an equal share. The parties, because of their education, training and personalities, or because of the lack of those factors, do not come into the partnership with equal abilities or assets. Merely because they share part of their life together does not of itself require that they leave the partnership with equal assets or liabilities, but only that their contributions to the marriage receive equitable recognition and award. We cannot say in this case that the awards to Mrs. Dewberry were not equitable.

We therefore affirm.

BOARDMAN, A.C.J., and OTT, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry (Spud) HUGHES, Jr., et al., Appellants, v. ROARIN 20’S, INC., et al., Appellees.
    No. 83-1575.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Rehearing Denied Sept. 14, 1984.

      John A. Lloyd, Jr. of Lloyd & Henniger, P.A., St. Petersburg, for appellants.
    Wofford H. Stidham, Bartow, and Preston C. Widoff of Law Offices of Clifford J. Schott, Lakeland, for appellee Roarin 20’s, Inc.
    David J. Kadyk and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellees Lykes, Inc. and Lykes Bros., Inc.
   PER CURIAM.

This is an appeal of the trial court’s entry of summary judgment in favor of appellees Roarin 20’s, Inc., Lykes, Inc., and Lykes Brothers, Inc., hereinafter referred to as Lykes. We affirm the decision of the lower court.

Appellant, Harry “Spud” Hughes, suffered a paralyzing neck injury when he dove from a tree into shallow water at a swimming area on the Weeki Wachee River. The platform from which he dove was constructed on a tree located on property owned by appellee Lykes. Appellant brought suit against appellee Lykes and appellee Roarin 20’s, Inc., which operated a nearby campground resort, for his injuries alleging that the diving area was unreasonably dangerous. Appellant further alleged that both appellee Roarin 20’s, Inc. and appellee Lykes were guilty of negligence regarding the duty owed to a business invitee or licensee. Finally, appellant contended that the tree in question constituted an attractive nuisance.

In response to appellant’s complaint, ap-pellee Roarin 20’s, Inc. contended that the diving area was not included as part of the campground facility. They also maintained, as did appellee Lykes, that the condition on the property was open and obvious and that appellant voluntarily assumed the risk in diving from the platform.

After a hearing on appellees’ motion for summary judgment, the trial court held that diving into the shallow water was the proximate cause of appellant’s injuries, and that he fully recognized and appreciated the danger posed by such a dive. The lower court further held that appellant’s knowledge of the condition was equal, if not superior, to that of the landowners. Subsequently, summary judgment was entered in favor of appellee Lykes and Roarin 20’s, Inc.

The facts pertinent to this appeal are as follows. On October 4, 1975, appellant and a friend went to the Weeki Wachee campground which was leased by appellee Roa-rin 20’s, Inc. from a third party. They paid an admission fee and proceeded to rent “tubes” for tubing down the river. On an earlier occasion, appellant’s friend had been instructed that he could gain access to the river by following a trail which led to a lagoon that flowed into the river. On this day, the boys launched the tubes from this lagoon and floated into the river toward the tree. When they arrived at the tree, several people were diving from a platform which was reached by climbing steps that had been nailed onto the tree.

At the time of the accident, appellant was seventeen years of age and was experienced in diving into shallow water. On this occasion, appellant tested the depth of the water in the area he intended to dive and determined that he could make the dive safely. Unfortunately, the “shallow dive” was not successfully completed and appellant suffered a neck injury which resulted in paralysis.

The trial court concluded that appellant’s action in diving into the shallow water was the sole proximate cause of his injury and thus granted summary judgment in favor of appellees. We affirm. See Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983); Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla.2d DCA 1980). As this court stated in Savignac v. Department of Transportation, 406 So.2d 1143 (Fla.2d DCA 1981):

[A] property owner generally cannot be held liable for dangerous conditions which exist in natural or artificial bodies of water unless they are so constructed as to constitute a trap or unless there is some unusual danger not generally existent in similar bodies of water. 65 C.J.S. Negligence § 63(100) (1966); Allen v. William P. McDonald Corp., 42 So.2d 706 (Fla.1949). Shallow water, insufficient for diving, does not constitute a trap. Switzer v. Dye, 177 So.2d 539 (Fla. 1st DCA 1965).

Affirmed.

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


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Eugene ELLISON, Appellee.
    No. 83-275.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    As Corrected Sept. 26, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellee.
   DANAHY, Judge.

This appeal presents the question whether the trial court correctly ruled that the police officer did not have probable cause to initially seize a package from the defendant, Eugene Ellison, during a lawful vehicle stop. We hold that the trial court erred and therefore reverse.

The evidence presented at a suppression hearing is not in dispute. On August 2, 1982, at about 9:45 p.m., police officers Gary Hitchcox and Carolyn Ferguson were on routine patrol in the Jordan Park area of south St. Petersburg. Jordan Park is an area well known to the police department as a site frequently used for street-level narcotics transactions. Officer Hitchcox himself had participated in three drug-related arrests within the last six months in that area.

While on patrol, the two officers observed a vehicle without a taillight being driven by Ellison on a city street. The officers decided to make a traffic stop for this violation. Officer Hitchcox turned on the top lights of the patrol car, signalling Ellison to pull over. Ellison pulled over to the curb, stopped, and turned his engine off. Just as the patrol car was coming to a stop behind him, Ellison hurriedly exited his vehicle and started walking back toward the patrol car. Hitchcox immediately exited his patrol car and approached Ellison who, by this time, was fully illuminated by the headlights of the patrol car. When the two men met within two feet of each other, Hitchcox observed a rolled up, clear plastic baggie containing several flat, irregular-shaped pieces of tinfoil which protruded two to three inches above the front waistband of Ellison’s trousers.

Officer Hitchcox stated that police officers know that this packaging arrangement of tinfoil packets encased within a plastic baggie is consistent with the way narcotics are customarily packaged and sold, particularly in the Jordan Park area. Officer Hitchcox also stated that he felt certain he was dealing with a narcotics violation as soon as he saw this packaging arrangement. He based his conclusion on ten years’ experience and training as a police officer. His experience included personal observation of over 1,000 tinfoil packets and twenty-five to thirty plastic baggie and tinfoil packet arrangements which were found to contain heroin or cocaine. Further, he had participated in some fifty arrests involving similarly packaged narcotics which had been seized from the waistband area of various suspects. Accordingly, without first communicating with either Ellison or Officer Ferguson, Officer Hitch-cox reached out and removed the package from Ellison’s waistband. The officers then took Ellison into custody.

At the police station, a presumptive test run on the contents of the encased tinfoil packets proved positive for heroin. Ellison was then formally arrested for possession of that narcotic. Incident to his arrest, Ellison was searched and a knife with a four-inch blade was found. Ellison was then also charged with carrying a concealed weapon.

At the outset of our analysis of the question presented, we note that there is no question of the propriety of the stop and the police encounter with Ellison. We also note that the motion to suppress and the trial judge’s order concern only the initial seizure of the package. The propriety of the search of the package after its seizure is not presented and we do not address it. Accordingly, the issue we must resolve is whether Officer Hitchcox’s observation of the package, when coupled with certain other circumstances known to the officer at the time of the warrantless seizure, is sufficient to constitute probable cause to believe the package contained contraband.

Given the totality of the circumstances related by Officer Hitchcox, we conclude that he had probable cause to believe that the package contained narcotics. Our conclusion is reached after a study of applicable precedents of this and other courts which have discussed the conditions necessary to support a warrantless seizure under the plain view doctrine.

A law enforcement officer, in certain circumstances, may make a warrant-less seizure of objects which are in plain view. In reviewing the plain view cases, we recognize that evidence is legally seized if:

1. The officer is in a place where he had a lawful right to be.
2. The officer inadvertently comes upon an object which is openly visible.
3. It is immediately apparent to the officer that the object constitutes evidence of a crime.

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see, e.g., Adoue v. State, 408 So.2d 567 (Fla.1981); Ensor v. State, 403 So.2d 349 (Fla.1981); Neary v. State, 384 So.2d 881 (Fla.1980); Derrickson v. State, 399 So.2d 100 (Fla. 1st DCA 1981); State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 637 (Fla.1980).

Thus the plain view doctrine permits a law enforcement officer to seize incriminating evidence or contraband in plain view whether or not there is time to get a warrant if such contraband is inadvertently discovered during lawful police activity. Ensor.

There is little dispute that Officer Hitchcox’s actions satisfied the first two prongs of the Coolidge test. First, Officer Hitchcox clearly was in a location where he had a right to be when he stopped Ellison for the observed traffic infraction. Thus the initial intrusion which afforded the view was lawful. Second, Officer Hitchcox inadvertently discovered the package when he saw it protruding from Ellison’s waistband when Ellison approached him after the stop. Officer Hitchcox in no way violated Ellison’s Fourth Amendment rights by merely looking at the package which Ellison exposed to his view. Under the plain view doctrine such evidence is deemed to be properly seized where it is so placed that it might be seen by an officer who is where he had a right to be. It cannot be said that Ellison had any reasonable expectation of privacy in the exposed package at this point. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Albo v. State, 379 So.2d 648 (Fla.1980); Bailey v. State, 319 So.2d 22 (Fla.1975); Ensor; Hornblower v. State, 351 So.2d 716 (Fla.1977); Derrickson; State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978).

Whether the third prong of the Coolidge test has been satisfied, i.e., here whether the incriminating nature of the contents of the package was “immediately apparent,” is a more difficult question. Every warrantless intrusion must be justified by articulable facts which would have supported the issuance of a warrant based on probable cause. The test to determine the existence of such probable cause is whether “the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been [or is being] committed.” Benefield v. State, 160 So.2d 706, 708 (Fla.1964); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). See also Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). “The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” Wright v. State, 418 So.2d 1087, 1090 (Fla. 1st DCA 1982) (quoting Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981)). Additionally, we note that permissible observations of a police officer and the observations of an average person making contact with an individual are not the same. Ensor. Accordingly, we continue to adhere to our announced position that an officer’s actions will not be evaluated by whether an ordinary citizen would have reason to believe that the package contained contraband. Rather, the test focuses upon the experience and knowledge of the officer considered in the context of the situation existing at the time of the seizure. State v. Lynch, 378 So.2d 829 (Fla. 2d DCA 1979); Dixon. In essence, then, the totality of the circumstances, i.e., the whole picture, must be taken into account. Thus, while an ordinary citizen might not have reason to believe that Ellison’s package contained contraband, when Officer Hitchcox saw the unique packaging arrangement, he knew what trained police officers know, i.e., that the package most likely contained narcotics. In formulating that belief, he was entitled to utilize his specialized knowledge gained from training, education and experience in investigating drug offenses and identifying unusual packets which commonly contain illicit substances, particularly in this area of the city known for its high incidence of drug trafficking. See Redding.

It is true that an officer’s observation of the outer packaging of a suspected parcel, standing alone, is insufficient to constitute probable cause to believe the parcel contains contraband. Hansen v. State, 385 So.2d 1081 (Fla. 4th DCA), petition for rev. denied, 392 So.2d 1379 (Fla. 1980). Consequently, we have held that hand-rolled cigarettes alone may not be seized even though an experienced narcotics officer may suspect that they contain marijuana. Carr. Similarly, seizure of a plastic baggie ensconced in a shirt pocket is impermissible when the seizure is based solely on the officer’s knowledge that marijuana is commonly carried in such containers. Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977). See also Bailey. Likewise, a brown manila envelope, which could contain “any number of items,” cannot be opened and investigated without a warrant where the officer had no reason to believe that it contained marijuana even though such envelopes are commonly used to carry small amounts of marijuana. Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981). Accord Kelly v. State, 407 So.2d 1011 (Fla. 5th DCA 1981) (amber-colored prescription bottle); Hansen (“bundles” composed of a garbage bag, cardboard box, and briefcase). We do not disagree with these cases which hold that where the nature of the package observed is innocuous in and of itself and not readily indicative of its contents, the plain view doctrine cannot justify a warrantless seizure. That is so because such an observation gives rise to mere suspicion rather than probable cause to believe that the package contains contraband. To transform mere suspicion into a reasonable belief based on probable cause, the officer must articulate additional corroborating facts or circumstances. Absent these other supporting circumstances, there is no way that an officer could know that a particular packet contained contraband rather than some other material.

On the other hand, where there do exist other independent indicia of the illicit nature of the contents of an otherwise innocuous container which fortifies an officer’s belief that there is contraband within the container, we believe that probable cause can be established. In several cases we have sustained such warrantless seizures of packages containing contraband. In Redding, we upheld the warrantless seizure of several small, flat tinfoil packets subsequently found to contain heroin. Our holding was based upon the officer’s experience with drug offenses, his reliable knowledge that narcotics are customarily wrapped in small tinfoil packets, and the existence of certain other surrounding circumstances at the time of the seizure. These circumstances included the officer’s awareness of the defendant’s bizarre drug-induced behavior and the peculiar location of the tinfoil packets within the defendant’s shoes as well as the likelihood that the drugs would be quickly disposed of upon reoeeupancy and departure of the vehicle and driver. Similarly, we held in State v. Booker, 380 So.2d 1309 (Fla. 2d DCA 1980), that a police informant’s observation of an envelope in defendant’s possession containing numerous tinfoil packets commonly used to package heroin, and defendant’s statement to the informant that he and his co-defendant had “boy” for sale — “boy” being a common street name for heroin — was sufficient to establish probable cause to arrest the two and to seize and search the envelope. Even more recently, in State v. Spence, 448 So.2d 599 (Fla. 2d DCA 1984), this court granted a petition for writ of certiorari upon a finding that, based on the totality of the circumstances and the experience, perception, and careful observation of the officers, probable cause was established to arrest defendant and seize the cigarettes. In Spence, the police officers had observed Spence hand rolling cigarettes and attempting to conceal her activity during a rock concert held at the Lake-land Civic Center. Additionally, the officers were fully experienced in the area of narcotics crimes, especially in connection with some ninety arrests for possession of marijuana at the civic center. In each of these cases, our own court found that the combination of these factors was sufficient.

Our position finds further support in Albo, wherein our supreme court approved a police officer’s seizure from a mobile home of thirty-five to forty bales of marijuana wrapped in black plastic and burlap. The supreme court concluded that the officer had probable cause to believe that the bales contained illicit contraband:

In his two and one-half years of previous experience in undercover purchases and narcotics investigations, every bale he had ever purchased or seized had been packaged in an identical manner. Given his experience plus the defendant’s failure to produce the vehicle’s registration and the fact that the rear end of the motor home looked weighted down, the circumstances support [the police officer’s] determination that the bales were marijuana.

Albo at 650. Thus it appears that in the cases which have upheld and approved container seizures, the surrounding circumstances beyond the officer’s own experience with the container in question played an important role in determining the existence of probable cause.

As in Redding, Booker and Albo, it is apparent in this case that Officer Hitch-cox’s actions were based not only on his extensive experience with narcotics cases but also on the surrounding circumstances which existed at the time of the seizure. Admittedly, Ellison made no incriminating statements as in Booker, nor was his behavior such as to indicate he might be under the influence of drugs as in Red-ding. However, when Hitchcox observed the packaging arrangement in its peculiar location on Ellison’s body, he was fully aware that he was in the Jordan Park area and that narcotics were customarily packaged and sold in exactly such packages in this area of the city. Hitchcox knew that this method of dealing drugs had become a recognized pattern in this area of the city. These crucial facts and corroborating circumstances were sufficient to establish probable cause for Hitchcox to believe that the unique packaging arrangement contained contraband. Once the probable cause requirement of the plain view doctrine was met, it was proper for Hitchcox to seize the package, and its contents could then be used in prosecution of the crime to which they related. Albo.

The defendant argues that the plastic baggie and the tinfoil packets were not subject to seizure because they are merely innocuous objects themselves and are commonly used to hold such legitimate items as food and gum. Based on the facts presented here, we do not agree. Instead, we think that Officer Hitchcox could and did reasonably conclude that he was not observing an innocuous object. In arriving at his conclusion, Officer Hitchcox was not required to close his eyes to the scenario. This setting included the unique baggie-tinfoil packet configuration, its unusual location on Ellison’s person, and the particular locale at which the incident occurred. When all these factors are considered, the potential uses to which Ellison suggests the package could be put do not, under the circumstances which existed at the time of his encounter with Officer Hitchcox, seem reasonable. In Blanding v. State, 446 So.2d 1135, 1137 (Fla. 3d DCA 1984), our sister court recently noted:

As with all borderline situations regarding probable cause, innocent explanations for the activity may be imagined. But the mere possibility of other interpretations would not suffice to diminish the reasonable likelihood of illegality appearing, from the circumstances, to prudent men possessing the knowledge and experience of the officers in the case at bar.

We think that reasoning applies here.

Because we have found that the seizure of the package under the circumstances present here was proper, we also find that the subsequent search and seizure of the knife found during the search of Ellison’s person at the police station after his arrest was also valid. Dixon.

We cannot conclude our discussion without noting that other courts have had difficulty in determining the extent to which police officers may rely upon their experience and training to formulate probable cause to believe that an otherwise innocent object contains contraband, thus subjecting it to immediate seizure. In In the Interest of P.L.R., 435 So.2d 850 (Fla. 4th DCA 1983), the Fourth District recently considered a question similar to the one presented here. In that case the court sustained the trial court’s denial of a motion to suppress. A police officer had arrested P.L.R. in an area known to the police as a heavy drug trafficking area. The officer had seen P.L.R. in the area before and noticed that he was wearing a sweatshirt with the left pocket bulging open, revealing a small manila envelope. The envelope was of the type commonly used in the area and known to the police officers as a container for “nickel bags” of marijuana. On that basis, the officer reached down and removed the envelope from P.L.R.’s pocket. After he smelled its contents and determined that the contents smelled like marijuana, the officer placed P.L.R. under arrest. The officer testified that he had seen such envelopes used to package marijuana in excess of 100 times and that it was the only way he had ever seen the envelopes used. On rehearing the district court certified that its decision was in conflict with the decisions of this court in Carr, Harris, and Thompson. In the Interest of P.L.R., 435 So.2d 850 (Fla. 4th DCA 1983) (opinion on rehearing). We respectfully disagree. Rather, we believe that these decisions are not in conflict and can be harmonized. Most significant is the fact that unlike P.L.R. and our own case of Redding which is cited as supporting authority in P.L.R., neither Carr, Harris, nor Thompson included additional surrounding circumstances beyond the officer’s experience with the container. Therefore, as we held in Carr, Harris, and Thompson, no probable cause existed. Because this crucial factor distinguishes those three cases from P.L.R. and harmonizes them with Redding, we find no conflict requiring resolution.

The United States Supreme Court has had similar difficulty with this issue. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), a divided court attempted to clarify the probable cause requirement of the “immediately apparent” prong of the Coolidge test. Justice Rehnquist, writing for the plurality, appears to define “immediately apparent” as merely requiring a showing that there was probable cause “to associate the property with criminal activity.” 103 S.Ct. at 1540. The discussion takes special care to note that probable cause is a flexible, common sense approach which places great reliance on the officer’s experience and on the law of probabilities. Thus, the existence of probable cause does not demand any showing that the police officer “know” that certain items are contraband or evidence of a crime. 103 S.Ct. at 1539-41. “Requiring the police to obtain a warrant once they have obtained a first-hand perception of contraband ... would be a needless inconvenience.” 103 S.Ct. at 1541. The court then concluded that in view of the common use of balloons in packaging narcotics and the police officer’s narcotics training and experience, the officer had probable cause to believe that the distinctive character of an opaque, inflated party balloon tied at the neck and observed in plain view in defendant’s possession during a lawful vehicle stop immediately “announced” that it contained contraband. Although we are persuaded by the reasoning in Texas v. Brown, we do not believe that case has wrought a major change in the law. We think it does recognize the need to give credence to the beliefs of law enforcement officers as to the “practical, nontechnical” probability rather than an unduly high level of certainty that a given package in plain view contains contraband. We believe Texas v. Brown supports our conclusion.

Neither Texas v. Brown nor our own cases of Redding and Spence require that the officer know with certainty that the object to be seized is contraband. Similarly, we do not hold Officer Hitchcox to the unrealistically high standard of absolute certainty. Rather, we hold that Officer Hitchcox had ample probable cause based on his knowledge and experience and the surrounding circumstances to seize the contraband.

In view of the foregoing, the heroin and knife should not have been suppressed as evidence. Accordingly, we reverse the order and remand the case for further proceedings.

REVERSED AND REMANDED.

After we issued this opinion, we received the decision and opinion of the supreme court in In the Interest of P.L.R., 455 So.2d 363 (Fla.1984). P.L.R. establishes the precedent and provides the controlling authority for our decision. Therefore, in cases like this, whether an experienced police officer at a known drug-transaction site has sufficient probable cause to believe that a particular container does contain narcotics will depend on the “totality of the circumstances” existing at the time. In pronouncing that rule the court found that P.L.R. was distinguishable from our cases of Thompson, Carr and Harris and was more like Albo and our Redding case. In our opinion we found those same distinctions and similarities. Thus, we believe that what we have said comports with the principles announced in P.L.R.

BOARDMAN, A.C.J., and OTT, J., concur.

      . The offense committed by Ellison occurred prior to the effective date of the amendment to Article I, Section 12, Florida Constitution. This amendment, which must be given prospective effect only, provides:
      ARTICLE I
      DECLARATION OF RIGHTS SECTION 12. Searches and seizures — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted 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. [New language is underlined.] See State v. Lavazzoli, 434 So.2d 321 (Fla.1983); Copeland v. State, 435 So.2d 842 (Fla. 2d DCA), petition for rev. denied, 443 So.2d 980 (Fla. 1983).


author: WENTWORTH, Judge.

text:
    John M. FERENC, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. John M. FERENC, Appellee.
    Nos. AU-43, AU-452 and AV-69.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Rehearing Denied Sept. 14, 1984.
    John M. Ferenc, pro se.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for State of Florida, appellee/cross appellant.
   WENTWORTH, Judge.

The defendant’s appeals from the denial of his motion for return of property and from his convictions of carrying a concealed firearm, possession of burglary tools, and attempted burglary while armed are affirmed. The state’s appeal from the order which partially granted appellant’s pretrial motion to suppress is therefore moot and we do not address the constitutionality of the arresting officer’s initial intrusion into the defendant’s van.

Affirmed.

ERVIN, C.J., and BOOTH, J., concur.


text:
    PARADYNE CORPORATION, a Delaware corporation, Appellant, v. Irwin H. MILLER and Sonya Miller, his wife, and Phillip Benjamin and Marilyn Benjamin, his wife, Appellees.
    No. 83-1477.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.
    Rehearing Denied Sept. 10, 1984.

      John R. Bush of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellant.
    Bruce Marger of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P.A., St. Pe-tersburg, for appellees.
   CAMPBELL, Judge.

Appellant, Paradyne Corporation, seeks review of a declaratory judgment and a mandatory injunction requiring appellant to participate with appellees Irwin H. Miller, Sonya Miller, Phillip Benjamin and Marilyn Benjamin, in the construction of a 250-foot joint-use drive.

Appellant raises five points on appeal. Three are discussed here. First, did the circuit court have jurisdiction to decide a controversy which, according to Florida Statute, section 335.18 (1981), has been delegated to a state agency, the Department of Transportation (DOT)? Second, did the trial court err by finding that DOT’s permit was intended to benefit the properties of appellant and appellees? Third, did the circuit court’s mandatory injunction constitute a taking of appellant’s property without due process of law?

Appellant and appellees own adjoining pieces of property on the south side of State Road 688. Appellant and the parties who previously held an option to purchase appellees’ interest in the property applied to DOT for a permit to obtain a light-controlled intersection on State Road 688. DOT issued a permit positioning the traffic light on State Road 688 between the properties owned by appellant and appellees. In the preliminary discussions, a joint-use drive on both pieces of property extending 250 feet back from the intersection was proposed as a means for connecting the properties with the light-controlled intersection. The permit issued by DOT did not include the proposed 250-foot access road on the parties’ property. Appellant built a road diagonally across appellant’s property to the light-controlled intersection. The road was not designed in such a way that appellees could use it to reach the light-controlled intersection. Appellees maintain that they have a right of access to the light-controlled intersection through a 250-foot connector road as described in the preliminary discussions. Appellant refused to allow appellees access to the connector road on appellant’s property. Appellees requested that DOT issue a cease and desist order so as to require appellant to allow appellees to use the connecting road. DOT denied this request, stating that it was beyond DOT’s jurisdiction to order a 250-foot access road over the parties’ private property. Alternatively, appellees requested a separate connection to the light-eon-trolled intersection. DOT denied this request for safety reasons. There was also evidence that a separate traffic signal to serve appellees’ property would not be permitted due to traffic congestion problems.

Appellees filed a declaratory judgment action and requested a mandatory injunction. The trial court entered a mandatory injunction and ordered appellant to participate with appellees in the installation of a 250-foot connector road in accordance with the driveway permit and the DOT drawing. The injunction was conditioned on appel-lees’ participation and certain costs of the joint-use drive.

We find that the circuit court had jurisdiction pursuant to section 120.69, Florida Statutes (1981). That section provides for enforcement of agency action by the circuit court. Although the complaint in this case was not filed under section 120.69, Florida Statutes, and it does not strictly comply with the requirements of section 120.69, the allegations are sufficient to allow us to treat it as an action under section 120.69. That section provides that a petition for enforcement may request declaratory relief or temporary or permanent equitable relief. We find there was substantial evidence through the preliminary discussions with DOT, and the testimony of DOT officials at trial, to support the trial court’s finding that DOT intended that the owners of both parcels should have access to the light-controlled intersection.

We find, however, that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot connector road. The permit, as issued, did not require a 250-foot connector road. The circuit court is only authorized to enforce the DOT permit under section 120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.-18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(l)(d), or be joined as an indispensable party based on its duties under section 335.18. It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to redesign the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees. In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT’s permit, DOT has authority under section 335.18(4) to deny access and revoke the permit.

Affirmed in part and reversed in part and remanded with instructions.

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


author: NIMMONS, Judge.

text:
    STATE of Florida, Appellant, v. ONE (1) 1977 VOLKSWAGEN, VIN/1773229365, FLORIDA LICENSE “KTV-062”, Appellee.
    No. AV-364.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Rehearing Denied Sept. 13, 1984.

      Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., for appellant.
    Larry G. Turner, Tom Kurrus, and Robert S. Griscti of Turner, Kurrus & Griscti, P.A., Gainesville, for appellee.
   NIMMONS, Judge.

The state appeals from an order denying forfeiture to the state of a 1977 Volkswagen which was allegedly used to facilitate the sale of contraband (cocaine) in violation of Section 932.702(3), Florida Statutes (1981). The vehicle was seized pursuant to Section 932.703(1), and the state instituted forfeiture proceedings under Section 932.704. We reverse the order denying forfeiture.

The facts upon which the trial court relied in denying forfeiture were presented by stipulation between the state and the owner of the vehicle, Jeff C. Duckham. We summarize those facts.

On or about November 9,1981, Duckham and undercover police officer Brad Joll met at a restaurant in Gainesville to discuss the purchase by Joll of an ounce of cocaine. Joll had initially contacted Duckham prior to November 9 to discuss purchasing cocaine, and Duckham had indicated to Joll that Duckham could obtain cocaine from his roommates. Duckham drove alone in his vehicle arriving at the restaurant earlier than Joll who subsequently arrived in a separate vehicle. During the conversation at the restaurant, Duckham asked Joll for personal information about Joll so that Duckham could reassure his roommates of Joll’s credibility. No conversations occurred in Duckham's vehicle.

After the conversation at the restaurant, Duckham and Joll entered their respective vehicles and Joll followed Duckham to Duckham’s Gainesville residence. When they arrived, they parked their vehicles and entered Duckham’s residence. Once inside, Duckham and Joll awaited the delivery of cocaine to the residence by one Shawn Parker. Joll first received a quarter of an ounce of cocaine from Parker and, after a while, received an additional half an ounce from Parker.

Duckham was later arrested on December 31, 1981, and his automobile was seized on that date. The criminal proceeding culminated in the eventual conviction and sentence of Duckham on October 19, 1982.

Contrary to the holding of the trial court, we find that Duckham used his vehicle to facilitate the sale of contraband within the meaning of Section 932.702(3), and the state was entitled to an order of forfeiture. See One 1976 Dodge Van v. State, 447 So.2d 984 (Fla. 1st DCA 1984); and In Re: Forfeiture of One 1979 Ford, 450 So.2d 863 (Fla. 4th DCA 1984).

Accordingly, the order appealed is REVERSED.

THOMPSON, J., concurs.

BARFIELD, J., dissents with opinion.

BARFIELD, J., dissents:

I dissent. The court has extended the application of the forfeiture statute to snare all motor vehicles owned by participants in illicit contraband transactions if the owner transports himself for any reason in the vehicle during which time he also furthers the cause of the illegal transaction. Rather than interdicting the flow of contraband, the decision appears to encourage the use of a friend’s or relative’s vehicle, commercial transportation or other conveyance when the use of the vehicle is not really necessary to the accomplishment of the illegal transaction.

ON MOTION FOR REHEARING

NIMMONS, Judge.

In his motion for rehearing or clarification, Duckham, among other things, asks us to modify our opinion so as to remand for further proceedings in order that the trial court might address certain defenses raised by Duckham in the proceedings below but which were not mentioned in the order appealed. It is true that the trial court expressly discussed in its order only the issue of whether Duckham’s use of the subject vehicle was a proscribed “facilitation” within the meaning of the pertinent statute. The trial court concluded such issue adverse to the State and did not discuss the other defenses relied upon by Duckham, namely: (1) that the statute was unconstitutional on its face and as applied; (2) that the forfeiture proceeding was not initiated in a prompt and timely manner; and (3) that the State’s forfeiture petition was “insufficient on its face.”

The trial court’s order followed a final hearing at which any and all outstanding issues, including the above, were properly before the court. Whether the trial judge chose to expressly treat each such issue in his final order is of no moment. If the record supports the trial court’s order on grounds other than that which was expressly relied upon by the court, it is incumbent upon the appellee to assert such on appeal instead of requesting a remand for the purpose of applying to the trial court for express rulings on the other grounds. On appeal, Duckham has asserted the validity of the appealed order only on the ground that the trial court correctly held that Duckham’s use of his vehicle was not a “facilitation” under the statute. He has failed to present on appeal any argument supporting denial of the State’s petition on any of the other defenses which he raised in the trial court.

The motion for rehearing or clarification is Denied.

THOMPSON and BARFIELD, JJ., concur.

      . Section 932.702(3) provides:
      “It is unlawful:

      (3) to use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.”

      . Section 932.703(1) provides in pertinent part:
      "(1) Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. * * "

      .Parker was a co-defendant with Duckham in the subsequently filed related criminal proceedings.


author: RYDER, Chief Judge.

text:
    Edward K. MILLER, Appellant, v. Frances S. MILLER, Appellee.
    No. 83-1410.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Rehearing Denied Sept. 11, 1984.

      Charles M. Phillips, Jr. of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., Clearwater, for appellant.
    Robert H. Dillinger of Akerson, Swisher, Dillinger & Brett, St. Petersburg, for ap-pellee.
   RYDER, Chief Judge.

Appellant, Edward K. Miller, and appel-lee, Frances S. Miller, were divorced in 1978 after a twenty-six year marriage. The husband is a medical doctor. One provision of the final judgment granted the wife $64,000.00 as lump sum alimony, which was to be paid when the husband’s pension and profit sharing accumulations were withdrawn or paid to him in installments. The husband appealed that judgment and this court affirmed. Miller v. Miller, 381 So.2d 776 (Fla. 2d DCA 1980).

In late 1982, the wife filed a supplemental petition requesting that the court clarify the final judgment and alleging that the $64,000.00 award was one-half of the amount then existing in the pension and profit sharing plan and that she was being deprived of her property without due process of law because she had a vested interest in the award but no access to the fund from which withdrawals were solely within the husband’s control. Because distribution was not made in 1978, the amount in the pension and profit sharing plan continued to grow and $64,000.00 no longer represented one-half of that fund. Both parties filed motions for summary judgment. The trial court granted the wife’s motion, ruling that it was the court’s intention when it entered the final judgment in 1978 to award to the wife a one-half interest in the husband’s pension and profit sharing plan and that, when distribution from the plan is made, the wife will maintain a one-half interest in it. The husband appeals from that order.

In the matter sub judice, we are faced with the problem of what the trial judge may have intended to do and the consequences of what was actually done. The original order was explicit and awarded the wife $64,000.00 as lump sum alimony but no interest in the plan. Had the wife sought an interest in the pension and profit sharing plan rather than a lump sum award of money, she had a right to appeal the trial judge’s order — but she did not. Lump sum alimony vests at the time of entry of the final judgment and is not subject to modification. Philipose v. Philipose, 431 So.2d 698 (Fla. 2d DCA 1983); Horne v. Horne, 289 So.2d 39 (Fla. 2d DCA 1974). Therefore, the trial judge erred when he modified the final judgment to grant the wife a one-half interest in the pension and profit sharing plan rather than the original lump sum of $64,000.00.

Even though a lump sum alimony award is not modifiable, the manner of its payment may be modified. Philipose. We reverse and set aside the order modifying the original final judgment without prejudice to the wife to seek a modification of the manner of payment of the lump sum alimony upon a proper showing of change of circumstances.

REVERSED.

GRIMES and OTT, JJ., concur.


author: PER CURIAM. ERVIN, Chief Judge

text:
    Jacquelyn Harriet BOUKNIGHT and Nellie Mae Anderson, Appellants, v. STATE of Florida, Appellee.
    Nos. AT-126, AT-127.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Rehearing Denied Sept. 14, 1984.
    Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a judgment based on the denial of a dispositive motion to suppress, and an appeal of sentences as cruel and unusual punishment. Appellants contend that Florida’s knock and announce statute, § 933.09, was illegally violated by officers’ entry into defendants’ home, and that the imposition of mandatory minimum sentence provided by § 893.135, Florida Statutes, is violative of the Eighth Amendment to the United States Constitution as cruel and unusual punishment. We affirm.

The officers in this case did not adhere to the requirements of the knock and announce statute, § 933.09, in their search pursuant to a warrant. We find the departure was justified under the exception stated in Kelly v. State, 287 So.2d 13 (Fla.1974). The test to be applied is “whether or not there existed good reason to fear at time of entry the destruction of evidence.” In this case, the officers had actual and particularized knowledge that there were 30 to 45 small containers of heroin and cocaine in the apartment. They knew from past experience that quite often in this particular neighborhood, once police presence was known, occupants tried to flush the evidence away or destroy it with muri-atic acid. On their approach, the officers also realized they were in plain sight of the occupants. This testimony shows the officers, at the time of entry, had reason to fear the destruction of evidence. This issue is one of fact. The standard of review is whether there is competent, substantial evidence to support the trial court’s ruling.

Appellants’ argument that the officers should have knocked and announced because they saw the occupant was making no furtive gestures is without merit. There may have been and was another occupant. The only gesture necessary to destroy the evidence would have been an order to the other occupant to do so. The true import of the situation is the officer saw the occupant; therefore, the occupant may have seen the officers. An exigent circumstance was created. The officers had reasonable grounds to fear the evidence would be destroyed. The trial court’s ruling should be upheld.

Affirmed.

BOOTH and WENTWORTH, JJ., concur.

ERVIN, C.J., concurs and dissents with opinion.

ERVIN, Chief Judge

concurring and dissenting.

Appellants-defendants appeal from convictions imposed for possession of heroin and cocaine, and trafficking in the same substances. They entered pleas of nolo contendere to those offenses, reserving their rights to appeal the denial of their motions to suppress the evidence seized, alleging (1) a violation of Section 933.09, Florida Statutes (1981), the knock and announce statute, and (2) a violation of the Eighth Amendment to the United States Constitution proscribing cruel and unusual punishment, by reason of section 893.135’s requirement of mandatory minimum sentences. I agree with their contentions as to the first point and would reverse the convictions and remand with directions that the motions to suppress be granted. I would otherwise uphold the sanctions provided in section 893.135.

The drugs which formed the basis of the charges against appellants were seized from an apartment which they occupied during a search pursuant to a warrant. The search warrant in turn relied upon an affidavit from a confidential informant who had alleged that within the past 20 days he had purchased heroin and cocaine from the premises sought to be searched. One of the officers at the suppression hearing testified that the informant had advised him that the illegal substances were contained in small individual packages, numbering from 30 to 45. The searching officer was also aware from his own prior experience that substances such as cocaine and heroin have often been destroyed either by flushing them down the toilet or by applying muriatic acid to them.

Armed with the search warrant and possessing the above information, and upon approaching the apartment to execute the warrant, the officer noticed that the front door to the apartment was open and he was then able to see through the closed screen door appellant Bouknight and two children in the front room. Although he did not observe Ms. Bouknight make any furtive gestures or efforts to destroy the drugs subsequently found inside the apartment, he failed to knock and announce his authority and purpose, until he opened the screen door, stating “police”, whereupon he entered the house.

These facts represent a prima facie violation of the knock and announce statute, unless of course the officer’s entrance can be said to come within any of the recognized exceptions to the statute. One such exception is the searching officer’s reasonable apprehension at the time of entry that, if he complied with the law, relatively small amounts of disposable contraband would be destroyed. See State v. Kelly, 287 So.2d 13 (Fla.1974). Kelly, however, should not be interpreted as granting unlimited authority to an officer to enter without knocking simply because he fears that contraband may be disposed of if he delays his entry for such a short period of time necessary to comply with the statute. The reasonableness of the officer’s fear must be judged by the facts which were apparent to him at the time of his entry, and those facts must relate to the particular ease — not some generalized experience the officer may be aware of. See, e.g., Berryman v. State, 368 So.2d 893, 895 (Fla.4th DCA 1979); Hunsucker v. State, 379 So.2d 1043 (Fla. 1st DCA 1980). In the latter case, we held that the trial court erred in denying appellant’s motion to suppress, despite the searching officer’s estimate that evidence had previously been destroyed in half of the instances in which he had complied with the knock and announce statute before entering.

Florida case law clearly establishes that compliance with the provisions of section 933.09 must be strictly adhered to and exceptions to the statute be strictly construed. See, e.g. Benefield v. State, 160 So.2d 706 (Fla.1964); Earman v. State, 265 So.2d 695 (Fla.1972); Hunsucker v. State; Hurt v. State, 388 So.2d 281 (Fla. 1st DCA 1980), petition for review denied, 399 So.2d 1146 (Fla.1981); State v. Drowne, 436 So.2d 916 (Fla.4th DCA 1983).

It is true that the officer in the case at bar did have specific facts at the time of entry as to the potential amount of narcotics involved — 30-45 individual packets. Nevertheless, these facts must be balanced against those which were apparent to him as he approached the apartment; his view of appellant Bouknight and two children in the front room, and the absence of any efforts made by them to destroy evidence. Given the above facts, I consider the officer’s fear of destruction — a fear which caused him to enter without complying with the statute for the few additional seconds necessary to knock, announce his authority and purpose — unreasonable, thus requiring reversal of the convictions.

I concur in the majority’s affirmance as to the second point raised, urging that the imposition of mandatory minimum sentences as provided in Section 893.135, Florida Statutes, is violative of the Eighth Amendment to the United States Constitution, as cruel and unusual punishment. I consider this argument has been adversely decided to appellant’s position by the Florida Supreme Court in State v. Benitez, 395 So.2d 514 (Fla.1981). Nor do I believe that the United States Supreme Court opinion in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), requires a contrary result because of the obviously distinguishable facts existing in that case as opposed to those in the present.


text:
    Demetrio R. GABRIELE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1705.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Rehearing Denied Sept. 19, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Hogan, 451 So.2d 844 (Fla.1984) and Rusaw v. State, 451 So.2d 469 (Fla.1984).

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


text:
    Andrew RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-456.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Rehearing Denied Aug. 28, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Brownlee v. State, 427 So.2d 1106 (Fla. 3d DCA 1983); State v. Fraser, 426 So.2d 46 (Fla. 5th DCA 1982).

ORFINGER and SHARP, JJ., and BLOUNT, URIEL, Jr., Associate Judge, concur.


author: COBB, Chief Judge.

text:
    David Alan SCHERZER, Appellant, v. Mary Wilk BERON and American Ambassador Casualty Co., Appellees.
    No. 83-1441.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Rehearing Denied Sept. 10, 1984.
    Peter T. Ribaudo, Ormond Beach, and Henry P. Duffett of Duffett, Seps & Ak-ers, Ormond Beach, for appellant.
    Dennis P. Dore of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Daytona Beach, for appellees.
   COBB, Chief Judge.

The plaintiff appeals a judgment denying recovery. The question presented is whether a motorcyclist is subject to the threshold requirement of the Florida Reparations Reform Act, also known as the no-fault law. We hold a motorcyclist is not.

This action arose out of a collision in 1982 between the plaintiff motorcyclist and the defendant motor vehicle operator. At the subsequent trial, the jury found that the defendant was 100% negligent and that the plaintiff sustained damages of $4,500.00, yet it also determined that the plaintiff had not satisfied the threshold requirement of section 627.737(2), Florida Statutes (1981). Based upon the jury’s latter finding, the trial court entered a judgment in the defendant’s favor.

Section 627.733, Florida Statutes (1981), requires only the owner or registrant of a motor vehicle to maintain security (personal injury protection benefits). “Motor vehicle” is defined in section 627.-732, Florida Statutes (1981), so as to exclude any self-propelled vehicle with fewer than four wheels. Hence, a motorcycle is not a motor vehicle under the no-fault law and is therefore excluded from the statutory requirement of security. Apparently, this exclusion was prompted by the belief that the over-all cost of obtaining no-fault insurance would be reduced. The defendants, however, do not attach any significance to the motorcyclist exclusion; instead, they contend that regardless of the plaintiff's mode of transportation, the threshold requirement applies as long as the defendant has personal injury protection benefits as required by statute. The applicable statutory provisions refute this contention.

The threshold requirement of Section 627.737(2), Florida Statutes (1981), applies only in a tort action where security has been provided. Reading section 627.-736(1), Florida Statutes (1981), one discovers that security is not provided to a motorcyclist, who is “an occupant of a self-propelled vehicle.” Thus, a motorcyclist need not satisfy the threshold to maintain a suit for the damages enumerated in subsection (2) of section 627.737.

Similarly, a motor vehicle operator cannot assert the tort exemption of section 627.737 (1), Florida Statutes (1981), against a plaintiff motorcyclist because the exemption protects against liability only to the extent personal injury protection benefits are payable or would be payable but for express statutorily authorized exclusions. Of course, neither can a defendant motorcyclist claim the statutory tort exemption.

To say that under the no-fault provisions a motorcyclist is not only precluded from obtaining personal injury protection benefits but barred from maintaining a tort action as well, is to leave a motorcyclist without any remedy. In Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974), the Florida Supreme Court recognized the derivative benefit from mandatory insurance coverage:

In exchange for the loss of a former right to recover — upon proving the other party to be at fault — for pain and suffering, etc., in cases where the thresholds of the statute are not met, the injured party is assured a speedy payment of his medical bills and compensation for lost income from his own insurer, even where the injured party was himself clearly at fault_ The provisions of F.S. 627.737, F.S.A., do provide a reasonable alternative to the traditional action in tort, and therefore do not violate the right of access to the courts....

Id. at 15. In the case of a motorcyclist, no such alternative exists. Thus, requiring a motorcyclist to meet the threshold requirement would be a denial of his constitutional right of access to courts.

Accordingly, we reverse' the final judgment and remand for entry of judgment in the plaintiff’s favor in the amount of $4,500.00, plus costs.

REVERSED and REMANDED.

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

      . See Appleman on Insurance Law and Practice Vol. 8d, § 5166 (1981):
      Lest it be thought that the legislators had in mind charitable impulses to spare such persons [motorcyclists] this expense, it should be made clear that the motivation was quite different. It was feared, rather, that their possibly disastrous claims experience would run up the cost to all; and, since at that time, the legislators believed the arguments that no fault would reduce premium charges, it was considered desirable to shade the odds in this direction. In all events, the specification of one such group does not violate the principle of equal protection of the laws. Of course, in those states where acceptance of the coverage of a no fault plan confers at least a partial immunity to tort liability, all common law actions may remain against an uninsured motorcyclist or motorist.

      . § 627.737(2):
      In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.-741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Significant and permanent loss of an important bodily function.
      (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (c) Significant and permanent scarring or disfigurement.
      (d) Death.

      . § 627.736 Required Personal Injury Protection Benefits; Exclusion; Priority.—
      (1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an accupant of a self-propelled vehicle, all as specifically provided in (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows. (Emphasis added.)


author: COWART, Judge.

text:
    The AMERICAN BANK OF MERRITT ISLAND, Appellant, v. FIRST AMERICAN BANK AND TRUST, Appellee.
    No. 83-1477.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Rehearing Denied Aug. 23, 1984.

      Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, and John P. Ingle, III, of Spielvogel & Goldman, P.A., Merritt Island, for appellant.
    Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellee.
   COWART, Judge.

This case involves the essential constituent elements of a civil cause of action (1) for injunctive relief against unfair competition resulting from infringement of a common law tradename (or mark or symbol), (2) for statutory damages for infringement of a registered service mark under section 495.131, Florida Statutes, and (3) for injunc-tive relief from injury to business reputation and dilution of service mark, trade-name and form of advertisement under section 495.151, Florida Statutes.

Plaintiff-appellant, The American Bank, filed a three count second amended complaint against defendant-appellee, First American Bank and Trust, alleging in count one that commencing in 1976 plaintiff had actively engaged in the banking business under the tradenames “The American Bank of Merritt Island” and “The American Bank,” and that by use of its name and distinctive letters and red, white and blue colors as symbols in advertising and otherwise, prior to 1982 its tradename and symbols acquired throughout Brevard County, Florida, a secondary or special meaning and significance as indicating or identifying its banking services and that plaintiff had acquired business goodwill and that the public’s recognition and association of its tradename and symbols with its good will and banking services constituted a significant asset of the plaintiff banking corporation. It is further alleged that prior to 1982 the defendant-appellee banking corporation, First American Bank and Trust, did banking business in Palm Beach County, Florida, but that in 1982, as the result of a merger, the defendant commenced doing banking business in Brevard County, Florida, under the name “First American Bank,” “1st American Bank,” “First American Bank & Trust” and “1st American Bank & Trust” and using a combination of red, white and blue colors in its advertising. It is further alleged the defendant’s use of tradenames and advertising similar to that of the plaintiff has actually caused plaintiff’s customers to transact, and attempt to transact, business with the defendant under the mistaken impression or belief that they were transacting business with the plaintiff and that the similarity of names and advertising symbols will likely cause similar confusion among plaintiff’s customers and potential customers and the general public in Brevard County, Florida.

In count two it is alleged that the plaintiff has registered the name “The American Bank” as its trademark or service mark pursuant to chapter 495, Florida Statutes, and that by virtue of the facts alleged in count one and because of the defendant’s knowledge that its mark is intended to be used to cause confusion or mistake or to deceive (§ 495.131(2), Fla.Stat.), the plaintiff is entitled to the remedies provided in section 495.141, Florida Statutes.

In count three it is alleged that by virtue of the facts alleged in counts one and two there exists a likelihood of injury to plaintiff’s business reputation or of dilution of the distinctive quality of plaintiff’s service mark, tradename and form of advertisement and that the plaintiff is entitled to injunctive relief under section 495.151, Florida Statutes.

The trial court dismissed plaintiff’s second amended complaint with prejudice for failure to state a cause of action and the plaintiff appeals.

A cause of action for injunctive relief on the common law of unfair competition based on tradename or trademark infringement requires the following elements to be alleged and proved;

(1) The plaintiff first adopted and used a certain name (or mark or symbol or logo or sign design) in a certain market or trade area, as a means of establishing good will and reputation and to describe, identify or denominate particular services rendered or offered by it (or goods made or sold by it) and to distinguish them from similar services rendered or offered (or similar goods marketed) by others, and
(2) through its association with such services or goods the plaintiff’s trade-name (or mark, etc.) has acquired a special significance as the name of the services rendered (or goods marketed) by the plaintiff in its trade area because plaintiff’s tradename (or mark, etc.)
(a) is inherently distinctive (fanciful, novel or arbitrary), or
(b) while generic, descriptive, or geographic, plaintiff’s tradename (or mark, etc.) has, by actual usage, acquired in a certain trade area, a secondary, special or trade meaning as indicating, describing, identifying or denominating the plaintiff as the source of certain services (or goods), and
(3) the defendant has commenced, or intends to commence, the use of an identical or confusingly similar tradename (or mark, etc.) to indicate or identify similar services rendered (or similar goods marketed) by it in competition with plaintiff in the same trade area in which the plaintiff has already established its tradename (or mark, etc.) and
(4) as a consequence of the defendant's action, or threatened action, customer confusion of source or as to the sponsorship of the services (or goods) offered, or to be offered, by the defendant is probable (likely) or inevitable.

Defendant-appellee argues that the plaintiff-appellant has not sufficiently alleged actual customer confusion. Plaintiff-appellant alleges in paragraph 9 that “defendant has caused confusion among plaintiff’s customers” and “by its actions defendant has created great confusion and a continuing likelihood of confusion among not only plaintiffs customers, but also potential customers.... ” This is sufficient to allege actual customer confusion. However, we do not agree that “actual” customer confusion is a correct statement of the rule of law although it. has substantial probative value as to the correct “customer confusion” element.

The correct rule of law requires only a showing that customer confusion be likely or inevitable rather than to require actual confusion. such that confusion is probable and the intent was to cause such confusion.

Thus, a showing of actual confusion is unnecessary and very difficult to demonstrate, and a showing of the likelihood of confusion between the two names is sufficient. The weight of authority is that likelihood of confusion is a question of fact and in arriving at a conclusion all relevant factors should be considered in an overall perspective. Likelihood of confusion can be proved without any evidence of actual confusion, and since reliable evidence of actual confusion is difficult to obtain in trademark and unfair competition cases, any such evidence is substantial evidence of likelihood of confusion. [citations omitted]
74 Am.Jur.2d 780, Trademarks and Tradenames § 119 (1974).
In order to make out a case of unfair competition, however, it is not necessary to show that any person has been actually deceived by defendant’s conduct and led to purchase his goods in the belief that they are the goods of plaintiff or to deal with defendant thinking he was dealing with plaintiff, it is sufficient to show that such deception will be the natural and probable result of defendant’s acts, [citations omitted]
87 C.J.S. 325, Trade-Marks, etc., § 92 (1954).
Actual confusion need not be shown, but it is sufficient to show that confusion is probable, or likely to occur. This rule is universally recognized.
66 ALR 948 at 972; 115 ALR 1241 at 1247.

As a general ground for injunctive relief, the harm does not have to have actually occurred and the remedy is traditionally for protection from threatened or potential future injury likely to occur.

Defendant-appellee reads Junior Food Stores of W Fla., Inc. v. Jr. Food Stores, Inc., 226 So.2d 393 (Fla.1969), to require an allegation of actual confusion. We do not. Junior Food Stores involved two similar chains of small neighborhood convenience stores doing business in the Florida panhandle. The litigants stipulated their tradenames and signs were similar enough to cause confusion if used in the same location. The court found that the sole issue was the territorial scope of trade-name protection and that the name of the defendant corporation (respondent in the supreme court certiorari case) had not yet acquired a “secondary meaning” and that it was the defendant corporation that had expanded from a distant area to the only area (Niceville in Okaloosa County) where both corporations did business and there the petitioner was established first. The facts in Junior Food Stores had already been established at trial whereas this case involves the sufficiency of allegations in the complaint. The customer confusion element or “test” is that because of similarity in trade names or symbols “customer confusion” as to the source of the services or goods offered by the defendant is likely (probable) or inevitable. Proof of that likelihood is sufficient and “the test is satisfied when it is shown by one seeking injunctive relief that, because of a similarity of trade-names, •potential customers of the first appropriator of a tradename actually do business with a second appropriator under the mistaken impression that they are doing business with the first appropriator.” (emphasis supplied) 226 So.2d at 397. While such proof at trial of actual confusion would certainly establish the likelihood of future confusion by “potential” customers this does not mean that the rule of law requires actual confusion or that the probability or likelihood of future confusion by actual or potential customers could not be established by other means.

By use establishing a “secondary meaning” plaintiffs name is subject to trademark protection. It cannot be held as a matter of law that the words “American Bank,” which are common to the name of both parties, are not capable of causing customer confusion as to banking services rendered or offered by both parties in the same territorial trade area. Whether or not plaintiffs name has acquired a secondary meaning by use, as is alleged in the complaint, and whether or not the defendant’s use of its tradename (or marks or symbols) is likely to cause customer confusion, are questions of fact to be determined at trial. These issues are: (1) whether or not in fact a substantial number of present or prospective purchasers (the public) understand the plaintiff’s tradename (or mark or symbol), when used in connection with banking services (in Brevard County, Florida), not in its primary lexicographical sense, but as referring to the plaintiff (long continued use of the tradename is evidence from which a “secondary meaning” may properly be inferred; but the inference is rebuttable); and (2) whether an appreciable number of prospective purchasers of banking services in Brevard County, Florida, are likely to regard the tradenames (or marks, etc.) of both parties as indicating the same source. Each count in the complaint in this ease is sufficient to allege a separate cause of action and if plaintiff-appellant can establish the facts it has alleged, it is entitled to the relief and remedies it seeks.

REVERSED AND REMANDED.

ORFINGER, J., and STROKER, R.J., Associate Judge, concur.

        .See generally, 74 Am.Jur.2d, Trademarks and Tradenames, § 16 (1974); 87 C.J.S., TradeMarks, Trade-Names, and Unfair Competition, § 87 (1954); Annot., Protection of business or trading corporation against the use of same or similar name by another corporation, 66 A.L.R. 948 (1930), supplemented 115 A.L.R. 1241 (1938).

      . See 74 Am.Jur.2d, Trademarks and Trade-names, §§ 48-50 (1974); 87 C.J.S., Trade-Marks, etc., §§ 32, 35 (1954).

      . See 74 Am.Jur.2d, Trademarks and Trade-names, §§ 64 et seq. (1974); 87 C.J.S., TradeMarks, etc. §§ 90, 107b. (1954). See also Quality Courts United, Inc. v. Jones, 59 So.2d 20 (Fla.1952); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248 (Fla.1st DCA 1960); Hoyt, Trade Names: Protection Accorded Under

        Secondary Meaning Doctrine, 6 U.Fla.L.Rev. 256 (1953).

      .Because one's goodwill or reputation may be harmed by another’s use of a tradename similar to that of the first, it is often stated that under most of the more recent cases actual or direct competition is no longer essential to injunctive relief from infringement of a tradename, trademark or unfair competition. See 74 Am.Jur.2d, Trademarks and Tradenames, § 124 (1974); 87 C.J.S., Trade-Marks, etc. § 88 (1954); Annot., Actual Competition as necessary element of trademark infringement or unfair competition, 148 A.L.R. 12 (1944). However, actual or intended competition appears to be essential to potential customer confusion, when the issue is the sameness or similarity in kind of the services or goods involved (substantive scope of protection) {see Sun Coast, Inc. v. Shupe, 52 So.2d 805 (Fla.1951), and Annot., 148 ALR 12 at 33 (1944)), and when the issue is the territorial scope of tradename (or mark) protection (see Annot., 148 ALR 12 at 92 (1944)). Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39 at 42 (Fla. 2d DCA 1960), states:
      [T]he right to a trade name in which a business is conducted is usually of only local extent, and the name will be protected against use by others only in the locality where the business is conducted and the name is known, the rights being coextensive with, and limited to, plaintiffs market.
      Accordingly, the territorial scope of the defendant’s use of its trade name can be crucial as to the establishment of the area in which the name However, the test of infringement is likelihood of confusion, and the test of actual confusion is no longer the law. Actual confusion has also been held not necessary under state law, if the similarity is has acquired a secondary meaning and the respective trade area in which the parties are each doing business is highly relevant to the probability of customer confusion. These are questions of fact which will often preclude a ruling as a matter of law that two particular trade-names are so dissimilar on their face as to avoid the probability of customer confusion. For these reasons we agree with Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3d DCA 1978), only if the complaint in that case failed to allege that the parties were in direct competition in the same trade area.

      . See Annot., Unfair Competition: Geographical Extent of Protection of Word or Symbol under Doctrine of Secondary Meaning, 41 A.L.R.3d 434 (1972).

      . As to the terms “confusion of source” and "confusion as to sponsorship,” see Restatement (Second) of Torts, Tentative Draft No. 8 (1963), sec. 729, comment a. Because the subject of trade practices became governed extensively by legislation in many states this draft was withdrawn by, and has no official status with, the Council of The American Law Institute. However, the work has been referred to favorably by many courts in states where, as in Florida, the common law of unfair competition and of protection of tradenames and trademarks from infringement has not been superseded by statute. See Sec. 495.161, Fla.Stat. See also First Wisconsin National Bank of Milwaukee v. Wichman, 85 Wis.2d 54, 270 N.W.2d 168 (1978).

      . Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39 (Fla. 2d DCA 1960), is another case involving territorial scope of tradename protection and facts established by trial. It does appear that in affirming the trial court’s denial of relief the appellate court was disagreeing with the plaintiff's contention that "actual instances of direct competition or customer confusion" need not be shown but only "a possibility of close competition in the future.” However, the actual holding in the case appears to be that as to the goods and customers involved the respective trade areas of the parties (West Palm Beach and Coral Gables) did not in fact cause even probable customer confusion. The court stated, "Normally where one business adopts the name of another business already in existence, but uses it in a place and with distinguishing characteristics which render it improbable that injury could thereby result to the original business, such use of the name will not be enjoined, in the absence of proof that injury has actually resulted therefrom." (emphasis supplied) 120 So.2d at 42.

      . "American”, when used with "Bank”, is not a generic term, such as "shredded wheat” (see Kellogg Company v. National Biscuit Company, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938)) or "light beer” (see Miller Brewing Company v. G. Heileman Brewing Company, 561 F.2d 75 (7th Cir.1977), cert, denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978)) because it does not connote a general meaning as to a category of banks of which plaintiff is merely a member nor does it describe the kind of services which plaintiff's bank offers. See, e.g., Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 611 (7th Cir.1965) (“Americana Hotel” is an arbitrary term “since it in no way suggests or describes hotel services”). Case law reveals that for one reason or another, the courts have always found tradenames containing the word "American” to be susceptible of appropriation. Some courts hold that the term "American” is not geographical at all because it is not used geographically to distinguish a product or service from a similar product or service of foreign denomination. See, e.g., Hamilton-Brown Shoe Company v. Wolf Brothers and Company, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916); American Plan Corporation v. State Loan and Finance Corporation, 365 F.2d 635 (3d Cir.1966), cert, denied, 385 U.S. 1011, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967). In Hamilton-Brown Shoe Company, supra, the United States Supreme Court stated:
      ... We do not regard the words “The American Girl,” adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant’s predecessors to designate shoes of their manufacturer_ 36 S.Ct. at 271.
      And in American Radio Stores, Inc. v. American Radio and Television Stores Corporation, 17 Del.Ch. 127, 150 A. 180 (1930), the court stated: [A]s to the words “radio” and "stores” the complainant cannot complain if defendant makes use of them in its corporate title. Those words are purely descriptive and, when used by the complainant, have attached to them no meaning of a secondary nature. But when the word "American" is used in conjunction with them, a distinguishing mark is introduced and the complainant is entitled to be protected in its use of that distinctive feature of its name.
      17 Del.Ch. at 131, 150 A. at 183.

        See also Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir.1965) ("Americana" Hotel is arbitrary term and therefore may be exclusively appropriated without a showing of secondary meaning). Some courts do regard the term “American” to be geographic in nature, but nevertheless allow the tradename containing the term to be protected under the secondary meaning doctrine. See, e.g., American Scientific Chemical, Inc. v. American Hospital Supply Corporation, 690 F.2d 791 (9th Cir.1982); American Optical Corporation v. North American Optical Corporation, 489 F.Supp. 443 (N.D. N.Y.1979).

      . See Restatement of Torts (the original not Second), Sec. 716, comment b. and Sec. 728, comment a.


author: COBB, Chief Judge. SHARP, Judge,

text:
    Terry B. HENDRIX, Appellant, v. STATE of Florida, Appellee.
    No. 83-1702.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Rehearing Denied Aug. 22, 1984.
    James B. Gibson, Public Defender, and James R. Wulehak, Chief, Appellate Div. Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

The appellant, Hendrix, challenges a four year prison sentence imposed by the trial judge outside the sentencing guidelines. Hendrix, who had pled guilty to grand theft, had a total of twenty-five points under the guidelines, the maximum sentence under the matrix for category six crimes thus being “any nonstate prison sanctions.” Of these twenty-five points/twelve resulted from prior convictions. The trial judge entered an order, stating:

The defendant, TERRY BECKETT HENDRIX, is to be sentenced on grand theft. The defendant had a prior record dating back to 1971 consisting of possession of controlled substances, shoplifting, driving under the influence, and disorderly intoxication. He has demonstrated corn-píete disregard for the laws of society, and a sentence to the county jail would simply not be sufficient deterrent or punishment for this individual and, therefore, this court finds and determines that it is necessary to go outside the guidelines and impose a sentence accordingly.

On appeal Hendrix contends that his pri- or record was taken into account in adding up his points under the guidelines, thus the same factor cannot be reconsidered to justify departure from the guidelines. Cf. Provence v. State, 337 So.2d 783 (Fla.1976), cert denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977).

Since the sentencing guidelines are new in Florida, this is a case of first impression. The issue in this case centers around Florida Rule of Criminal Procedure 3.701(d)(ll), which states:

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

Under Florida Rule of Criminal Procedure 3.701(d)(5), and the Committee Note thereto, each separate prior felony and misdemeanor conviction in an offender’s prior record shall be scored. This rule, when read in conjunction with (d)(ll), provides that an offender cannot be punished due to offenses which do not result in a conviction. The language of (d)(ll) states that the court is prohibited from considering offenses for which the offender has not been convicted, but the state notes that it does not expressly state that the court cannot consider offenses for which the offender has been convicted. The appellant, on the other hand, cites to cases from Minnesota, in which it has been held that the use of the same conviction as grounds for departure is, in effect, counting the conviction twice, which is contrary to the spirit and intent of the guidelines. See State v. Brusven, 327 N.W.2d 591 (Minn.1982); State v. Erickson, 313 N.W.2d 16 (Minn. 1981); State v. Barnes, 313 N.W.2d 1 (Minn.1981).

There is merit in each argument. But we are more persuaded by that of the state. If Florida Rule of Criminal Procedure 3.701(d)(ll) precludes consideration by the trial judge of past convictions, then it becomes only a political placebo to placate the trial courts and divert public attention from the legislature’s ultimate responsibility for abbreviated sentences. If a trial judge cannot depart from the guidelines based on a defendant’s prior criminal record of convictions, then that prohibition should be expressly defined and delineated by the Florida Legislature.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I disagree that a defendant’s prior record should be used as the basis for departing from a presumptive sentence under the sentencing guidelines, when his prior record was used in arriving at a point total for a presumptive sentence range. Here Hendrix received 12 points attributable to his prior convictions, while the offense for which he was being sentenced only totalled 13.

The guidelines contain specific factors to be weighed in specific cases to arrive at a presumptive sentence range. The defendant’s prior record is one of those specified areas. Further, the guidelines provide that no scoring shall be allowed for arrests or other nonconviction dispositions, Fla.R. Crim.P. 3.701(d)(5)(a)(l) & (d)(ll), and none shall be allowed for convictions obtained ten years or more before the most recent date of release. Fla.R.Crim.P. 3.701(d)(5)(b).

From the order entered in this case it appears that the trial court relied on matters which occurred more than ten years ago in departing from the presumptive sentence. Whether he also relied upon arrests or charges that were dropped, we cannot tell because the record does not reveal Hendrix’ “rap” sheet or presentencing investigation report. A problem with wholesale reliance on a defendant’s “record” in general is that it renders appellate review impossible.

It appears to me that the design of the guidelines implicitly prohibits the second use of a defendant’s prior record to further enhance his punishment. If uniformity in sentencing is to be achieved through use of the guidelines, Fla.R.Crim.P. 3.701(b), its mandates and exclusions should control the whole sentencing process. See Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).

The trial judge in this case thought the presumptive sentence was too light a punishment for this crime and this defendant with his prior record. I agree. However, the degree of punishment afforded by the guidelines, or lack thereof, should not be grounds for enhancement. The basic problem is the generally light punishments programmed as presumptively correct in the guidelines.

The legislature can remedy this problem. However, if in the meantime the courts render the guidelines meaningless by allowing departures in violation of the guidelines rules and mandates, there will be nothing left to remedy. Sentencing guidelines in Florida will become an interesting but failed social experiment.

      . Amendment of Florida Rule of Criminal Procedure 3.701(d)(ll) has been recommended by the Guidelines Commission, and approved by the Florida Supreme Court. In Re Amendment to Rules of Criminal Procedure (3.701, 3.988— Sentencing Guidelines), 451 So.2d 824 (Fla. 1984). The rule, as amended, would read:
      Departures from the Guideline Sentence: Departures from the guideline range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained. Legislative approval of this proposal is required by section 921.001(4)(b), Florida Statutes (1983). In any event, such amendment, even if now effective, cannot be applied retroactively to this case. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

      . Fla.R.Crim.P. 3.988.

      . As correctly pointed out by the majority, Minnesota, which also has adopted guidelines, has consistently condemned as "unfair,” the consideration of prior record when it was used in determining the presumptive sentence. State v. Magnan, 328 N.W.2d 147 (Minn.1983); State v. Brusven, 327 N.W.2d 591 (Minn.1982); State v. Barnes, 313 N.W.2d 1 (Minn.1981).

      . The paramount goal of the guidelines is to reduce unwarranted disparity in sentencing. Fla.R.Crim.P. 3.701. Thus, the guidelines are designed to insure that similarly situated offenders convicted of similar crimes receive similar sentences. See Sundberg, Plante, Braziel, Florida’s Initial Experience With Sentencing Guidelines, 11 Fla.St.U.L.Rev. 125 (1983). Similarly situated offenders would not be assured of equal treatment if each trial judge is allowed to sentence an offender based upon his or her ideas or philosophy regarding punishment.