
    In re FORFEITURE OF ONE 1980 OLDSMOBILE 98, VIN 3X37NAM179969. Lawson L. LAMAR, Sheriff of Orange County, Florida, Appellant/Cross-Appellee, v. UNIVERSAL SUPPLY COMPANY, INC., Appellee/Cross-Appellant.
    No. 84-858.
    District Court of Appeal of Florida, Fifth District.
    June 6, 1985.
    Rehearing Denied June 21, 1985.
    See also, FIa.App., 452 So.2d 627.
    Peggy M. Morris, Orlando, for appellant/cross-appellee.
    Hal Roen, Orlando, for appellee/cross-appellant.
   DAUKSCH, Judge.

This is an appeal from an order denying forfeiture of an automobile. Appellee was in the automobile and waved a firearm at another person in a manner alleged by the state to be an aggravated assault. The trial judge found there was insufficient proof of the assault to support the allegation. Maybe so, but that is not the reason we affirm the judgment. We affirm it because the automobile was not the instrumentality of the crime and was thus not subject to forfeiture. Pheil v. Griffin, 452 So.2d 627 (Fla. 5th DCA 1985); City of Indian Harbour Beach v. Damron, 465 So.2d 1382 (Fla. 5th DCA 1985). The firearm was the instrumentality of this crime — not the car. This was one of those common roadside disputes where two drivers got mad at each other and pulled over to vent their emotions, or fight or force a backdown. The one with the gun won. Not with his car, though; it was his gun which was the instrumentality of the alleged assault.

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.  