
    In re FORFEITURE OF 1985 FORD RANGER PICKUP TRUCK, VIN # 1FTBR10S7FUB74784, FLORIDA LICENSE # 802-DPU; and $453 U.S. Currency.
    No. 89-03063.
    District Court of Appeal of Florida, First District.
    April 18, 1991.
    On Motion for Rehearing July 23, 1991.
    Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellant.
    John F. Daniel of Daniel and Komarek, Panama City, for appellees.
   BARFIELD, Judge.

Appellant, the State of Florida, contends that the trial court erred in denying the forfeiture of a 1985 Ford Ranger pickup truck on the grounds that the “innocent spouse” exception contained in section 932.-703(2), Florida Statutes (1989), rendered the statute unconstitutional. We reverse the decision of the trial court and remand for further proceedings.

On July 1,1989, the State seized the 1985 Ford Ranger pickup truck pursuant to sections 932.701-.704, Florida Statutes. The seizure was based on Alan R. Barry’s use of the truck to obtain cocaine and to attempt to run over a police officer while fleeing the scene of a sting operation. The title to the truck is registered in the names Alvin R. Barry, and his son, Alan R. Barry.

The court denied forfeiture and ordered the truck returned to appellees, the Barrys, after finding that the father was an innocent owner. The trial court ruled that section 932.703(2), Florida Statutes (1989), violates due process and equal protection in that it exempts from forfeiture certain co-owned vehicles and not others.

We agree with the State that section 932.703(2), Florida Statutes (1989), does not violate either the due process or equal protection clauses of the state or federal constitutions; however, we decline to follow In Re Forfeiture of 1978 BMW Automobile, 524 So.2d 1077 (Fla. 2d DCA 1988), because the result reached in that case appears to establish constitutional impediments arising from both equal protection and due process considerations. That decision would allow a sole owner of property to escape forfeiture although the owner’s permissive use of the property resulted in the targeted criminal conduct, while a joint owner of property, equally innocent, who could not forbid the use of the property, would suffer loss by forfeiture. The concept of imputed knowledge, or imputed criminality, was created by the Second District Court’s decision, not the legislature.

In our view the statute is susceptible of a construction which fairly comports with constitutional constraints of due process and equal protection. An “innocent owner” under the statute need not be the owner of the whole property where the ownership is divisible and the property is susceptible of division in kind or sale and division of proceeds. The statutory exception for husband and wife conforms the statute to the definition of property held by the en-tireties which ownership is singular and indivisible. The statute is definitive in eliminating the proof requirements that the owners intended to create a tenancy by the entirety and overcomes the provisions of section 319.22(2)(a)l, Florida Statutes (1989). Smith v. Hendry, 454 So.2d 663 (Fla. 1st DCA 1984); Crawford v. United States Fidelity and Guaranty Co., 139 So.2d 500 (Fla. 1st DCA 1962).

The State certainly should have the right to proceed against the property; however, the State is not entitled to take the property of one who did no wrong and knew of no wrong. The greatest impediment that one who owns property with another under these circumstances should suffer is the loss of the property in exchange for fair consideration or the association of a new partner.

The judgment of the trial court is REVERSED and the case is REMANDED for the trial court to conduct an evidentiary hearing to determine whether the father had the requisite knowledge of the criminal activity of the son.

ERVIN, J., concurs.

BOOTH, J., dissents, with written opinion.

BOOTH, Judge,

Section 932.703, Florida Statutes, provides, in part, as follows:

(2) No property shall be forfeited under the provisions of ss. 932.701-932.704 if the owner of such property establishes that he neither knew, nor should have known after a reasonable inquiry, that such property was being employed or was likely to be employed in criminal activity. Property titled or registered jointly between husband and wife by use of the conjunctives “and,” “and/or,” or “or” shall not be forfeited if the coowner establishes that he neither knew, nor should have known after a reasonable inquiry, that such property was employed or was likely to be employed in criminal activity.
(3) No bona fide lienholder’s interest shall be forfeited under the provisions of ss. 932.701-932.704 if such lienholder establishes the he neither knew, nor should have known after a reasonable inquiry, that such property was being used or was likely to be used in criminal activity; that such use was without his consent, express or implied; and that the lien had been perfected in the manner prescribed by law prior to such seizure.

We should reverse the judgment below. On In Re Forfeiture of 1978 BMW Automobile, 524 So.2d 1077, 1080-1081 (Fla. 2d DCA 1988), the court held:

Applying and extending our reasoning in [City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983)], to this case, we hold that if the co-owners are not husband and wife, the guilty knowledge of one conjunctive co-owner is a sufficient basis to justify forfeiture.

In the 1978 BMW case, supra, as in City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983), the court upheld the forfeiture of a vehicle titled in the names of parents and son, where the son, without actual knowledge of the parents, used the vehicle for illegal purposes.

The “innocent spouse” exception in the Act is based on the doctrine of tenancy by the entireties. Under that doctrine, neither spouse can, by his or her unilateral act, alienate, encumber, or forfeit property held jointly by husband and wife. See Parrish v. Swearington, 379 So.2d 185 (Fla. 1st DCA 1980); United States v. One Parcel of Real Estate at 11885 S.W. 46 Street, etc., 715 F.Supp. 355, 359 (S.D.Fla.1989). Property held jointly by husband and wife is thus not subject to rules applicable generally to jointly-held property. The BMW case, supra, holds that where the Legislature has expressly limited the forfeiture exemption for a coowner to property held by husband and wife coowners, the court would not extend it to other coowners, applying the maxim “expressio unius est ex-clusio alterius.”

ON MOTION FOR REHEARING

BARFIELD, Judge.

Both parties have sought rehearing alleging among other things that the state and the defendant stipulated that the father had no knowledge of the criminal activity of the son and was therefore an innocent owner. Our remand for determination of this matter is therefore not necessary. The trial court need only determine the appropriate disposition of the property consistent with the opinion of the court. Except to the extent the opinion is modified herein, the motions for rehearing or clarification are denied.

ERVIN, J., concurs.

BOOTH, J., dissents. 
      
      . Exemption was added by amendment effective October 1, 1985. Ch. 85-316, § 1, Laws of Fla.
     