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    Klenna Ann FLETCHER, a/k/a Kay Fletcher, Appellant, v. FLORIDA PUBLISHING COMPANY, a Florida Corporation, Appellee.
    No. V-101.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Rehearing Denied Oct. 22, 1975.

      Ellis E. Neder, Jr., and Rudolph J. In-man, Jr., Jacksonville, for appellant.
    Harold B. Wahl of Loftin & Wahl, Jacksonville, for appellee.
   BOYER, Chief Judge.

While appellant was absent from the State her home located in Jacksonville was severely damaged by fire. After the fire was extinguished the fire marshal and a police sergeant entered the residence accompanied by various representatives of the news media including a photographer employee of appellee. The body of appellant’s seventeen-year-old daughter, clad only in underclothing, was discovered on the floor of a second-story bedroom. When the body was removed a silhouette remained on the bedroom floor. The officials, having exhausted their supply of film, requested appellee’s photographer to make a picture of the silhouette, such being important to their investigation as it allegedly demonstrated that the child was on the floor of the bedroom prior to the fire. Other photographs were taken, some of which (together with the silhouette picture) were delivered to the authorities to be made a part of their official file. The photographs were also delivered to appellee who published in its newspaper an account of the fire together with several of the photographs including the silhouette of the child’s body. Beneath the silhouette picture in large type appeared the words “Silhouette of death”. Appellant first learned the facts surrounding the tragic death of her daughter by reading the story and viewing the photographs published by the appellee.

Appellant’s amended complaint was in three counts. The first count alleged trespass and invasion of privacy; the second count alleged invasion of privacy without reference to trespass and the third count was for the wrongful intentional infliction of emotional distress, seeking punitive damages.

The learned trial judge, upon appropriate pleadings, dismissed Count II of the complaint with prejudice and granted a summary final judgment in favor of the defendant (appellee here) on Counts I and III. This appeal followed.

We will here treat each count separately and will recite such other facts as are gleaned from the record as may be found to be material to the specific point being considered.

. The trial court, in its order granting the motion for summary judgment as to Count I, found that “as a matter of law an entry, that may otherwise be an actionable trespass, becomes lawful and non-actionable when it is done under common usage, custom and practice” and that “it is common usage, custom and practice for news media to enter private premises and homes to report on matters of public interest or a public event.” Those findings were based upon numerous affidavits filed by the defendant in support of its motion for summary judgment.

Historically, trespass has its roots in the criminal law. However, as the law developed it became also recognized as a tort, compensible in damages. Thus, at common law, every entry upon the land of another, except by consent, was a trespass for which satisfaction in damages would lie. There is now a clear distinction between criminal trespass and civil trespass. Among other things, the burden of proof is different as is the ultimate result upon a determination of guilt. A criminal trespass is an offense against the State or one of its political subdivisions and is punishable as such. On the other hand, one found guilty of a civil trespass responds in damages to the injured party.

In an action for civil trespass the plaintiff is always entitled to at least nominal damages, and all damages of which the act of trespass was the efficient cause and for which the plaintiff is entitled to recover in any form may be recovered in such action although in point of time they did not result until sometime after the act was committed.

Consent is, of course, an absolute defense to an action for trespass provided the consent is given by the possessor of the land or one competent and authorized to give such consent and provided further that the acts of the party accused of the trespass do not exceed, or are not in conflict with, the purposes for which such consent was given.

The defense of common custom and usage is but another way of expressing consent by implication; that is, consent may be implied from custom, usage or conduct. However, consent to an entry on property by a person named cannot be extended by inference to justify the unlicensed entry of others, and while permission to go upon the premises of another may be implied from custom, usage or conduct, such implied consent is necessarily limited to those acts which are within a fair and reasonable interpretation of the terms of the grant. In order fpr custom and usage to constitute implied consent to a trespass the custom and usage must have been at the acquiescence of the possessor or others similarly situated. As an example, the opening of an office to transact business with the public is a tacit invitation to all persons having business with the proprietor, and a permission to others to enter the place of business. Further, unless a home owner manifests externally in some way his or her wish to remain unmolested by the visits of solicitors seeking orders for merchandise, a solictor may take custom and usage as implied consent to call where such custom and usage exists. In the absence of some external indication to the contrary, custom and usage would render unactionable a trespass on the premises of another for the purpose of a social visit, retrieving young children who had wandered away or to seek the assistance of the possessor at a time of emergency. There are unquestionably other instances in which consent will be implied based on common custom, usage and conduct: The foregoing examples are merely by way of explanation, and are not intended to be exclusive.

Appellee relies heavily upon Prior v. White, supra. However, it is readily apparent that that case has no application to the facts sub judice. There the Supreme Court of Florida had for consideration the constitutionality of a municipal ordinance declaring solicitation “in and upon private residences” a nuisance, constituting a misdemeanor punishable by fine or imprisonment. The Supreme Court there simply held that such solicitation was not a nuisance, either private or public, and that it did not have any relation to the public health, safety, or general welfare of the community, (a requisite basis for assertion of the police power) emphasizing that “where the householder permits solicitors, the city cannot forbid.” Quoting 2 Cooley on Torts, 4th Ed., page 238, § 248, the Court said:

“ ‘Every retail dealer impliedly invites the public to enter his shop for the examination of his goods, that they may purchase them if they see fit; the mechanic extends the like invitation to those who may have occasion to become his customers; the physician and the lawyer invite them to their respective offices, and so on * * * No doubt one may visit another’s place of business from no other motive than curiosity, without incurring liability, unless he is warned away by placard or otherwise. So every man, by implication, invites others to come to his house as they may have proper occasion, either of business, or courtesy, for information, etc. Custom must determine in these cases what the limit is of the implied invitation." (180 So. 3S5; emphasis the Court’s)

Declaring the offending ordinance unconstitutional the Supreme Court emphasized that the defendant, a Fuller Brush salesman, though going to the home in question without express invitation, remained at the implied invitation of the occupant who placed orders for the merchandise which he was selling. Entry of the home of another without invitation was not an issue in Prior v. White.

Neither is State v. Blocker of any help. First, that opinion is the opinion of a single judge of the County Court of Dade County, and therefore not binding by the doctrine of stare decisis upon this Court. Second, in that case the defendant newsman, who was being prosecuted criminally, did not go into the residence of the prosecuting witness. The holding of that opinion is summed up in the second sentence thereof: “Joel Blocker did approach Mr. Fernandez’s house, go on to his property and knock on the door, but this activity was not extraordinary and is permitted by custom. See Prior v. White, 132 Fla. 1, 180 So. 347, 356 (1938).” (39 Fla.Supp. 138) In short, the defendant there went to the front door of the home of the prosecuting witness. He did not go in. Prior v. White, supra, was properly cited as a precedent for the granting of the order of dismissal in that case. Such are not the facts sub judice.

McKee v. Gratz is also distinguishable upon the same basis. That case involves a trespass upon unenclosed land in reliance upon implied consent by custom and usage, not an intrusion into a private dwelling.

In Martin v. Struthers, the United States Supreme Court had occasion to consider an ordinance, similar to the ordinance involved in Prior v. White, supra. There the appellant was convicted in the Mayor’s Court and fined for violating an ordinance which declared it unlawful for any person to distribute handbills, circulars or other advertisements, to ring the doorbell, sound the door knocker, or otherwise summon the inmate or inmates of any residence to the door for the purpose of receiving such handbills, circulars or other advertisements. Holding that the ordinance was violative of the Federal Constitution’s guarantee of free speech and the press the Supreme Court said:

“ * * * Whether such visiting shall be permitted has in general been deemed to depend upon the will of the individual master of each household, and not upon the determination of the community. In the instant case, the City of Struthers, Ohio, has attempted to make this decision for all its inhabitants. * * * ” (319 U.S. at page 141, 63 S.Ct. at page 862, 87 L.Ed. at page 1316)

Recognizing the distinction between criminal trespass and civil trespass the writer of the opinion further said:

“Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. * * * We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. * * *” (87 L.Ed. 1319, 319 U.S. 147, 63 S.Ct. 865)

There is nothing in Martin v. Struthers relating to damages for a civil trespass as distinguished from a fine for criminal trespass. Neither does it involve an entry into a house. It is in every regard very similar to Prior v. White.

Pearson v. Dodd, is cited as authority for appellee’s position here. However the facts are readily distinguishable. In that case former employees of Senator Dodd, neither of whom were parties to the suit, with the assistance of two members of his staff, entered his office without authority, removed various documents from his files, made copies of them, replaced the originals and turned over the copies to columnist Jack Anderson who was then associated with columnist Drew Pearson. The defendants Pearson and Anderson thereafter published articles containing information gleaned from those documents. The court emphasized that neither Anderson nor Pearson has trespassed upon Dodd’s premises although they were aware that the documents had been removed without authorization. Under those circumstances the court said:

“ * * * If we were to hold appellants liable for invasion of privacy on these facts, we would establish the proposition that one who receives information from an intruder, knowing it has been obtained by improper intrusion, is guilty of a tort. In an untried and developing area of tort law, we are not prepared to go so far. * * *” (410 F.2d 705)

The court thereupon concluded:

“ * * * Since we have also concluded that appellants’ role in obtaining the information did not make them liable to appellee for intrusion, their subsequent publication, itself no invasion of privacy, cannot reach back to render that role tortious.” (410 F.2d 706; emphasis added)

It is apparent from the language emphasized in the foregoing quote that had the appellants’ role in obtaining the information constituted actionable trespass then the decision would have been contra. Indeed, the court appeared to have anticipated this very case when it said:

“ * * * But in analyzing a claimed breach of privacy, injuries from intrusion and injuries from publication should be kept clearly separate. Where there is intrusion, the intruder should generally be liable whatever the content of what he learns. * * * ” (410 F.2d 705; emphasis added)

New York Times Co. v. United States, the infamous Pentagon Papers case, has no application at all to the case sub judice. The sole holding of the several separate opinions constituting that case is that publication by a newspaper of information wrongfully obtained will not be enjoined. No such issue is here involved.

Both parties cite Cantrell v. Forest City Publishing Co. In that case a mother and son brought a diversity action against a newspaper publisher, a photographer and a reporter, claiming that a feature story in the newspaper discussing the impact upon their family of the death of their father in a bridge collapse, which story contained several admitted inaccuracies and false statements about the family, entitled them to compensatory and punitive damages under the “false light” theory of invasion of privacy. The United States District Judge entered judgment on the jury’s verdict awarding damages and the Court of Appeals reversed. The United States Supreme Court granted certiorari, holding that the evidence was insufficient to support the jury’s verdict against the photographer but that the judgment based upon the jury verdicts should have been sustained as to the reporter and publisher. The action was bottomed on the “false light” theory of invasion of privacy and not upon trespass. In that matter it differed from the action sought to be asserted in Count I of the plaintiff’s complaint sub judice. The Circuit Court observed that there was little evidence as to whether the reporter and photographer were invited into the plaintiff’s home. One of the plaintiff’s children testified that one had asked them in and that no one had asked them to get out. He further testified that the door was open “because the men were coming.” The court observed:

“On appeal the appellees attempt to treat the entry of the two defendants into their home without an invitation when only children were present as the intrusion for which damages were justified. However, this was not the theory on which the case was tried in the District Court.” (484 F.2d 153)

In reversing the judgments the Court of Appeals said:

“ * * * The two newsmen may have been guilty of trespass against the property of the Cantrells. However, the gravamen of this action lies in the claim that the publication of the article, not the physical intrusion, damaged the plaintiffs. * * * ” (484 F.2d 154-155)

On certiorari, the United States Supreme Court reversed the Court of Appeals as to the reporter and publisher, reinstating- the judgments against them. In so doing, it did not disturb those portions of the opinion of the Court of Appeals above quoted but, instead, specifically recited that “the case went to the jury on a so-called ‘false light’ theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William % * * »

It is abundantly clear therefore that the Cantrell v. Forest City Publishing Co. decisions have no effect upon a case bottomed on actual trespass.

Cases have been found wherein custom and usage was construed to imply consent to enter onto business property and into business establishments. Cases have also been found wherein custom and usage was construed to imply consent for the entering onto the private residential property of another. However, no case has been cited to us by counsel, nor has independent research revealed any, in which consent by custom and usage was held to have authorized entry into the private dwelling of another.

The law is so well established as to render citations superfluous that “every man’s home is his castle”. Even the law applicable to searches and seizures incident to the commission of crimes differs as to whether the property involved is a residence or some other type of property.

Sub judice, it is clear that appellant did not either impliedly or expressly invite appellee’s employees into her home; nor is there anything in the record to indicate that appellant (nor others like situated) had theretofore acquiesced in other persons coming into her home: Therefore there was no basis for the establishing of an implied consent by custom and usage. Though it is conceded by appellant that the fire marshal and police rightfully entered the premises for the purpose of discharging their official duties, there is nothing to indicate that those officials had, in the absence of an emergency, authority to invite others to do so. The fire had been extinguished prior to the entry complained of. The emergency was over. There is no contention that appellee’s employee went into the premises for the purpose of rendering assistance to the occupants nor to the officials. The established fact that photographs were taken by appellee’s employee at the request of the authorities after the entry has no effect on the alleged initial trespass which would have occurred when appellee’s employee crossed the threshold of appellant’s home. Under the authorities above cited, in the light of the affidavits filed by appellee in support of its motion for summary judgment, custom and usage implied consent to go onto the yard of appellant’s home and up to the front door: However, the proofs before the trial court were not sufficient to show that there was no genuine issue as to the very material fact as to whether implied consent by custom and usage authorized entry into the premises, without invitation by appellant or someone authorized by her.

While custom and usage are matters of fact which may properly be alleged in affidavits in support of, or in opposition to, motions for summary judgment, the legal effect of such facts are matters of law to be resolved by the courts. As a matter of law the implication of consent by custom and usage to go onto and into business premises, or onto a yard or enclosure surrounding a residence, or onto the entrance of that residence does not extend to an implied consent to proceed into the dwelling place. If custom and usage are to be relied upon as implying consent to enter into a dwelling place, after an emergency has subsided, as distinguished from entering onto a yard or a porch or into a common hallway, then the proofs must relate to that specific point. Affidavits reciting custom and usage as to emergency situations, or as to customary conduct involving exterior portions of a private dwelling may not be extended to include the interior. Said another way, although custom and usage may be relied upon as implying consent to enter into a private dwelling after an emergency has subsided, the proofs of such custom and usage must establish that specific fact, otherwise an issue is presented to be resolved by a trier of fact.

As far back as 1961 this Court recognized the right to recover damages for invasion of privacy in a negligence action. Allowance of such damages as an incident to a trespass is no extension of that doctrine.

Dietemann v. Time, Inc. involves a factual situation so analogous to that sub ju-dice that we feel justified in quoting extensively therefrom. Indeed, to paraphrase rather than to quote would serve only to lengthen this opinion. There the plaintiff, appellee, was engaged in the practice of healing with clay, minerals and herbs for which he made no charges, but did accept donations. Time, Inc. entered into an arrangement with representatives of the District Attorney’s office whereby Time’s employees would visit Dietemann at his home and obtain facts and pictures concerning his activities. They gained entrance to the plaintiff’s home through a ruse, took pictures by use of a secret camera, and carried on conversations which were transmitted by a hidden radio transmitter to a tape recorder in a parked automobile outside occupied by other employees of Time and an investigator of the State Department of Public Health. The plaintiff was thereafter arrested at his home on a charge of practicing medicine without a license, at which time many pictures were made by employees of Time, of plaintiff and his home. Also present were newspapermen who had also been invited by the officials to be present at the time of the arrest. Time, Inc. published a magazine article concerning Dietemann together with various photographs. Suit was filed alleging an invasion of privacy which resulted in a judgment for damages. In affirming the judgment the Court of Appeals said:

“The appeal presents three ultimate issues: (1) Under California law, is a cause of action for invasion of privacy established upon proof that defendant’s employees, by subterfuge, gained entrance to the office portion of plaintiff’s home wherein they photographed him and electronically recorded and transmitted to third persons his conversation without his consent as a result of which he suffered emotional distress? (2) Does the First Amendment insulate defendant from liability for invasion of privacy because defendant’s employees did those acts for the purpose of gathering material for a magazine story and a story was thereafter published utilizing some of the material thus gathered? (3) Were the defendant’s employees acting as special agents of the police and, if so, did their acts violate the First, Fourth, and Fourteenth Amendments of the Federal Constitution, thereby subjecting defendant to liability under the Civil Rights Act (42 U.S.C. § 1983) ? Because we hold that plaintiff proved a cause of action under California law and that the First Amendment does not insulate the defendant from liability, we do not reach the third issue. (449 F.2d at page 247)
* * * * * *
In jurisdictions other than California m which a common law tort for invasion of privacy is recognized, it has been consistently held that surreptitious electronic recording of a plaintiff’s conversation causing him emotional distress is actionable. Despite some variations in the description and the labels applied to the tort, there is agreement that publication is not a necessary element of the tort, that the existence of a technical trespass is immaterial, and that proof of special damages is not required. [Numerous citations omitted] (449 F.2d at page 247)
Although the issue has not been squarely decided in California, we have little difficulty in concluding that clandestine photography of the plaintiff in his den and the recordation and transmission of his conversation without his consent resulting in his emotional distress warrants recovery for invasion of privacy in California. California began developing a common law privacy tort in 1931 with the decision of Melvin v. Reid, 112 Cal.App. 285, 297 P. 91. Since then, the California Supreme Court has decided a number of privacy cases in some of which there are indications that California would recognize the plaintiff’s claim. (449 F.2d at 248)
“ * * * The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.” [Numerous citations omitted] (449 F.2d at page 249)
* * * * * *
“Defendant relies upon the line of cases commencing with New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and extending through Rosenbloom v. Metromedia, Inc. (1971) 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) to sustain its contentions that (1) publication of news, however tortiously gathered, insulates defendant from liability for the antecedent tort, and (2) even if it is not thus shielded from liability, those cases prevent consideration of publication as an element in computing damages.” (449 F.2d at page 249)
* ‡ ‡
“As we previously observed, publication is not an essential element of plaintiff’s cause of action. Moreover, it is not the foundation for the invocation of a privilege. Privilege concepts developed in defamation cases and to some extent in privacy actions in which publication is an essential component are not relevant in determining liability for intrusive conduct antedating publication. (Cf. Nimmer, ‘The Right to Speak From Time to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy’ (1968) 56 Calif.L.Rev. 935, 957.) Nothing in New York Times or its progeny suggests anything to the contrary. Indeed, the Court strongly indicates that there is no First Amendment interest in protecting news media from calculated misdeeds. (E. g., Time, Inc. v. Hill, supra, 385 U.S. 374 at 389-390 and 384 n. 9, 87 S.Ct. 534, 17 L.Ed.2d 456.)” (449 F.2d at pages 449 and 450)
“No interest protected by the First Amendment is adversely affected by permitting damages for intrusion to be enhanced by the fact of later publication of the information that the publisher improperly acquired. Assessing damages for the additional emotional distress suffered by a plaintiff when the wrongfully acquired data are purveyed to the multitude chills intrusive acts. It does not chill freedom of expression guaranteed by the First Amendment. A rule forbidding the use of publication as an ingredient of damages would deny to the injured plaintiff recovery for real harm done to him without any countervailing benefit to the legitimate interest of the public in being informed. The same rule would encourage conduct by news media that grossly offends ordinary men.
“The judgment is affirmed.”

(449 F.2d at page 250).

Unquestionably the fire in appellant’s home coupled with the tragic death of her daughter was of obvious legitimate public interest. That the published matter complained of is of general public interest has always been considered a defense to a claim of invasion of privacy by publication. Finding that the matter published was of obvious legitimate public interest, the publication, per se, was not an invasion of privacy. However, if the entry by appel-lee’s employees into appellant’s home constituted a trespass or “intrusion” it follows that such intrusion constituted a sufficient basis for the tort of invasion of privacy, entitling the injured party (appellant here) to such damages incident to the trespass action as may be proved to have resulted therefrom. As stated in Pearson v. Dodd:

“We approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff’s position could reasonably expect that the particular defendant should be excluded. Just as the Fourth Amendment has expanded to protect citizens from government intrusions where intrusion is not reasonably expected, so should tort law protect citizens from other citizens. The protection should not turn exclusively on the question of whether the intrusion involves a technical trespass under the law of property. The common law, like the Fourth Amendment, should ‘protect people, not places’ ”. (410 F.2d 701 at page 704)

We do not here hold that a trespass or “intrusion” did in fact occur sub judice: We simply find that such is alleged in Count I of the amended complaint and that the proofs before the learned trial judge were insufficient to resolve the point by summary judgment.

Count I of the amended complaint seeks punitive damages in addition to compensatory. Punitive damages are, of course, properly recoverable when the requisite elements are present. Although not unambiguously, the Supreme Court of the United States in Cantrell v. Forest City Publishing Co. distinguished between “actual malice” as established in New York Times Co. v. Sullivan and the commonlaw standard of “malice” required to support an award of punitive damages. In our view the Supreme Court intended to hold in Cantrell v. Forest City Publishing Co. that under factual situations as alleged sub judice the commonlaw standard is applicable. Being so, it is apparent from a reading of the first count of the amended complaint that plaintiffs allegations met the tests of the authorities above mentioned. However, it is equally apparent that in responding to the defendant’s motion for summary judgment the plaintiff did not rebut by facts under oath the negative allegations of fact contained in the defendant’s affidavits. Accordingly although we here recognize that punitive damages are recoverable in a proper case for trespass resulting in an invasion of privacy, we find from the record before us that the learned trial judge did not err in granting a motion for summary judgment in favor of the defendant on the issue of punitive damages in the case sub judice.

As to Count II of appellant’s complaint, a careful reading thereof reveals that it is no more than a reiteration of the allegations contained in Count I, absent the allegation of trespass. There is no allegation of falsity or defamation. Neither are there any allegations sufficient to bring that count within the ambit of Cantrell v. Forest City Publishing Co., supra. There is nothing in the allegations of that count, nor does there appear anything in the record-on-appeal, to suggest that by further amendments the count could be amended to state a cause of action for any claim not encompassed by the allegations of Count I. It follows that the learned trial judge was eminently correct in dismissing Count II with prejudice.

We now turn to a consideration of Count III of appellant’s amended complaint which count seeks damages, compensatory and punitive, for an alleged intentional infliction of emotional distress. Such an action has long been recognized in Florida and elsewhere. To sustain such an action the complaint must allege conduct exceeding all bounds that could be reasonably tolerated by society of a nature especially calculated to cause severe emotional distress to a person of ordinary sensibilities and the wrongful act alleged must be such as to reasonably imply malice or be such that, from the entire want of care or attention to duty or great indifference to the person, property or rights of others, such malice may be imputed as would justify assessment of exemplary or punitive damages. The wrongful act giving rise to the cause of action must also have been done intentionally or in reckless disregard of the rights of others.

Although we find that the allegations of Count III of the amended complaint sub judice were such as to meet the requirements above mentioned, there is nothing in the record-on-appeal to support the allegations. On the contrary, the affidavits filed in support of the motion for summary judgment negated the allegations of Count III in that regard, and those affidavits were not rebutted. No issue of material fact having been demonstrated as to the allegations of Count III of the amended complaint, the learned trial judge was eminently correct in entering summary judgment thereon in favor of the defendant, appellee here.

In summary, we reverse as to compensatory damages as alleged in Count I and affirm as to punitive damages alleged in that count. We further affirm as to dismissal of Count II and the summary judgment as to Count III.

Remanded for further proceedings consistent herewith.

RAWLS, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

I disagree with the ruling of the majority opinion that the news photographer, in entering the burned home, was a trespasser, and that, thus, the photograph published by appellee and the news story resulting from the entry were an actionable invasion of privacy. The only photographs taken and published were of fire damage — none were of deceased or injured persons. There, is no contention that the particular photograph complained of (the silhouette picture) and the news story were in any way false or inaccurate. There could, therefore, be no recovery under the “false-light” doctrine of invasion of privacy. See Cantrell v. Forest City Publishing Company, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). Thus, there could be no recovery from the publication if the same photograph had come from a source other than from the news photographer’s entry upon the premises. Any recovery in this case must necessarily be based upon trespass, and, therefore, the only question is whether or not there was a trespass by the news photographer. The majority opinion discusses the implied consent doctrine under which a person, who does not have express consent from the owner or possessor of premises, may legally enter under circumstances which infer or imply consent (common usage, custom and practice). It is my view that the entry in this case was by implied consent.

It is not questioned that this tragic fire and death were being investigated by the fire department and the sheriff’s office and that arson was suspected. The fire was a disaster of great public interest and it is clear that the photographer and other members of the news media entered the burned home at the invitation of the investigating officers. (Numerous members of the general public also went through the burned house.) Many affidavits of news editors throughout Florida and the nation and affidavits of Florida law enforcement officials were filed in support of appellee’s motion for summary judgment. These affidavits were to the general effect that it has been a long-standing custom and practice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest has occurred — entering in a peaceful manner, without causing any physical damage, and at the invitation of the officers who are investigating the calamity. The affidavits of law enforcement officers indicate that the presence of the news media at such investigations is often helpful to the investigations in developing leads, etc.

The affidavits as to custom and practice do not delineate between various kinds of property where a tragedy occurs. They apply to any such place. If an entry is or is not a trespass, its character would not change depending upon whether or not the place of the tragedy is a burned out home (as here), an office or other building or place. An analysis of the cases on implied consent by custom and usage, indicates that they do not rest upon the previous non-objection to entry by the particular owner of the property in question but rest upon custom and practice generally. Implied consent would, of course, vanish if one were informed not to enter at that time by the owner or possessor or by their direction. But here there was not only no objection to the entry, but there was an invitation to enter by the officers investigating the fire. The question of implied consent to news media personnel to enter premises in a circumstance such as this appears to be one of first impression not only in this jurisdiction but elsewhere. This, in itself, tends to indicate that the practice has been accepted by the general public since it is a widespread practice of long standing. Due to such widespread and long-standing custom, reason and logic support the application of implied consent to enter the premises in the case before us. It, therefore, was not a trespass, and I would affirm the trial court.

      . Leonard v. Nat Harrison Associates, Inc., Fla.App.2nd 1960, 122 So.2d 432.

      . See Harris v. Baden, 1944, 154 Fla. 373, 17 So.2d 608, wherein the Court said: “At the common law, every entry upon another’s land, except by consent, was deemed a trespass for which satisfaction would lie. Every man’s land was considered, as a matter of law, to be enclosed and set apart from his neighbor’s, either by a visible and material fence or by an ideal invisible boundary existing only in contemplation of the law.

      . Leonard v. Nat Harrison Associates, Inc., supra.

      . 52 Am.Jur., Trespass, § 47 and eases there cited.

      . Restatement of the Law of Torts, Chapter 8, § 167, et seq.

      . Restatement of the Law of Torts, Chapter 8, § 167, Comment d.; 52 Am.Jur., Trespass, § 39.

      . 52 Am.Jur., Trespass, § 39 and cases there cited.

      . Boston Manufacturers Mut. Ins. Co. v. Fornalski, Fla.App.4th 1970, 234 So.2d 386, and authorities therein cited.

      . 52 Am.Jur., Trespass, § 39 and cases there cited. See also Prior v. White, 1938, 132 Fla. 1, 180 So. 347; Martin v. Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313.

        . Boston Manufacturers Mutual Insurance Company v. Fornalski, supra.

      . 39 Fla.Supp. 136 (1973).

      . 1922, 260 U.S. 127, 43 S.Ct. 16, 67 L.Ed. 167.

      . 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313.

      . 133 U.S.App.D.C. 279, 410 F.2d 701 (1969).

      . 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed. 822.

      . (6th Cir. 1973) 484 F.2d 150, certiorari granted and case reversed by the Supreme Court of the United States, Cantrell v. Forest City Publishing Co., (1974) 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419.

      . Please see citations in footnotes 6, 7, 8, 9, 10 and 11 above.

      . Boston Manufacturers Mutual Insurance Co. v. Fornalshi, supra; State v. Blocker, supra; Prior v. White, supra.

      . The facts recited in Prior v. White, supra, reveal that there the court was not considering an entry into a residence. The entire transaction which gave rise to the appellant’s prosecution under the ordinance which was decreed unconstitutional took place on the porch of the prosecuting witness and not inside her home. By way of dicta the court there stated “it has been held that a license may be implied to entered the house of another, at usual and reasonable hours, and in a customary manner for any of the common purposes of life” citing Lakin v. Ames, 64 Mass. (10 Cush.) 198 and Section 167 of the Restatement of Torts. The only portion of Section 167 of the Restatement of Torts which can possibly be construed to relate to entries into (as distinguished from upon) the residence of another is the statement that upon “the possessor's failure to object to a particular entry, or his acquiescence to similar entries on previous occasions, may lead the actor reasonably to believe that the possessor is willing that he shall enter the land.” (Emphasis added) There, it will be noted, it is the possessor’s failure to object that leads to consent by custom not the failure of some remote third party to object. Examination of Lalcin v. Ames reveals that entry into a residence was not there involved. In that case the defendant had removed a shed built by the plaintiff on the town common which shed interfered with the plaintiff’s access to his family burial tomb. The court simply held that there was no trespass, and gratuitously by way of dictum added “thus it has been held that the entry upon another’s close or into his house, at usual and reasonable hours, and in a customary manner, for any of the common purposes of life, cannot be regarded as trespass.” (64 Mass. (10 Cush.) 220) No authorities for that statement were cited and the statement had nothing to do with the facts of that case.

        . Dunnavant v. State, Sup.Ct.Fla.1950, 46 So.2d 871: see also Swartz, Woodrum and Haynes v. State, Fla.App., 316 So.2d 618.

      . See Thompson v. City of Jacksonville, Fla.App. 1st 1961, 130 So.2d 105).

      . 449 F.2d 245 (9th Cir. 1971).

      . Pearson v. Dodd, supra.

      . Pearson v. Dodd, supra; 52 Am.Jur., Trespass, § 47, and cases therein cited.

      . Winn & Lovett Grocery Co. v. Archer, 1936, 126 Fla. 308, 171 So. 214; Cason v. Baskin, 1947, 159 Fla. 31, 30 So.2d 635; Buie v. Barnett First National Bank of Jacksonville, Sup.Ct.Fla.1972, 266 So.2d 657; Campbell v. Government Employees Insurance Co., Sup.Ct.Fla.1974, 306 So.2d 525, reh. den. Feb. 13, 1975.

      . 1974, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419.

      . 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686.

      . Rule 1.510 R.C.P.

      . Kirksey v. Jernigan, Sup.Ct.Fla.1950, 45 So.2d 188; Korbin v. Berlin, Fla.App. 3rd 1965, 177 So.2d 551; Kimple v. Riedel, Fla.App. 2nd 1961, 133 So.2d 437; LaPorte v. Associated Independent, Inc., Sup.Ct.Fla.1964, 163 So.2d 267; 32 Fla.Jur., Torts, § 15; Restatement of the Law of Torts, 2nd Ed., § 46, 312.

      . See Kimple v. Riedel, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a public corporation, Appellant, v. Sara L. DEADWYLER, Appellee.
    No. 74-1182.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
    Robert Grafton and Thomas J. Schwartz, West Palm Beach, for appellant.
    John W. Frost, II, Holland & Knight, Bartow, for appellee.
   PER CURIAM.

Affirmed. See Webb v. Giddens (Fla.1955), 82 So.2d 743.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


author: HOBSON, Judge.

text:
    Odessa D. TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 75-604.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.

      Charles W. Ehrlich, St. Petersburg, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.
   HOBSON, Judge.

Petitioner, Taylor, seeks certiorari review of an order of the circuit court, acting in its appellate capacity, which reversed an order of the county court granting petitioner’s motion to dismiss the information filed against her.

The county court, after hearing, concluded that the undisputed facts would not show a prima facie case of guilt, and dismissed the charge, basing its finding on Jolley v. City of Jacksonville, Fla.App.1st 1973, 281 So.2d 901.

The facts stipulated at the hearing were that at approximately 1:15 a. m. Police Officer Gell responded to a call of a disturbance created by loud record playing at a duplex apartment. When the officer stood on the porch of the duplex he smelled marijuana coming from one of the apartments. Officer Gell looked through a window and saw three males smoking what appeared to be marijuana cigarettes, but did not see any of the females smoking marijuana cigarettes nor did he see any cigarettes being passed around. The officer saw petitioner, Odessa Taylor, sitting on a couch between a ’male and a female. Officer Gell knocked on the door and arrested everyone in the room. On the floor next to the sofa was found a plastic baggie containing a small amount of marijuana, some marijuana particles were on the cushions of the sofa, and some crushed marijuana cigarette butts were found in the room. Taylor did not own or live in the premises and did not know the names of the owners. Someone had told her there was a party going on and she had arrived about twenty minutes prior to the arrest. Taylor does not smoke marijuana, was offered a marijuana cigarette at the party which she refused, and the only thing she had was some beer.

Taylor was charged with possession of less than five grams of marijuana. Charges were later dropped by the State against the two persons who sat on the sofa on either side of Taylor.

We are not concerned with whether the county court was correct in relying on Jolley, supra. On this petition for writ of certiorari our review is limited to the face of the record to determine whether the circuit court has exceeded its jurisdiction, failed to follow the essential requirements of the law, or applied the wrong rule of law to admitted facts. Mathews v. Metropolitan Life Insurance Company, Fla. 1956, 89 So.2d 641; State v. Staley, Fla.App.2d 1957, 97 So.2d 147; Zediker v. State, Fla.App.3d 1969, 218 So.2d 464; Mangone v. State, Fla.App.3d 1969, 219 So.2d 447; Coffman v. State, Fla.App.4th 1974, 292 So.2d 608.

Even where drugs are found on premises in joint possession, the proof must establish both the accused’s knowledge of the presence of the drug and his ability to maintain control over it or reduce it to his personal dominion. Spataro v. State, Fla.App.2d 1965, 179 So.2d 873. This will not be inferred but must be established by proof. Frank v. State, Fla.App.1st 1967, 199 So.2d 117; Markman v. State, Fla.App.3d 1968, 210 So.2d 486; Harris v. State, Fla.App.3d 1974, 307 So.2d 218.

The only evidence in the case sub judice with which the State could prove that Taylor could maintain control over the marijuana or had the ability to reduce it to her personal dominion was her proximity to it. This is circumstantial evidence. In order for circumstantial evidence to be sufficient for conviction it must be consistent with the accused’s guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. Harris, supra.

The evidence in this case is not only subject to the hypothesis of Taylor’s guilt but is also subject to the equally reasonable hypothesis of her innocence in that the marijuana was in the possession of the owner of the apartment or one of the other occupants. Langdon v. State, Fla.App.3d 1970, 235 So.2d 321.

Taylor did not have control or joint control of the premises, but was a mere visitor with no apparent authority to treat the drugs as her own. Arant v. State, Fla.App.1st 1972, 256 So.2d 515; D. M. M. v. State, Fla.App.2d 1973, 275 So.2d 308.

Constructive possession may be inferred from other incriminating statements or circumstances. Frank, supra; Markman, supra. In the case sub judice the State did not present any other incriminating circumstances from which possession could be inferred.

The trial judge was correct in holding that the State failed to make out a prima facie case of guilt under the statute involved. In reversing the county judge’s order, the circuit court applied the wrong rule of law to admitted facts. Mathews, supra; Staley, supra; Zediker, supra; and Mangone, supra.

The writ of certiorari is hereby granted, the order of the circuit court is quashed, and the cause remanded to the circuit court with directions to affirm the order of the county court.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    Jerome Wesley WALLACE, Appellant, v. The STATE of Florida, Appellee.
    No. 74-403.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Rehearing Denied Oct. 15, 1975.
    Phillip A. Hubbart, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was found guilty of assault with intent to commit murder after a non-jury trial, and sentenced to IS years in the state penitentiary.

The defendant-appellant urges as error (1) the acceptance by the trial court of his waiver of jury trial, and (2) the trial judge’s refusal to allow defendant to withdraw his waiver of trial by jury on the day of the trial.

As to point one, the record reveals that at his arraignment, defendant Wallace executed the waiver upon the advice of privately retained counsel who was present at the time of the execution thereof. Established case law has determined that his waiver is valid. See Quartz v. State, Fla.App.1972, 258 So.2d 283; Kinser v. State, Fla.App.1974, 291 So.2d 80.

With regard to the trial judge’s refusal to permit defendant to withdraw his waiver of a jury trial, the record on appeal reflects that defense counsel made his ore tenus 'motion therefor on the day the trial was originally scheduled to commence on the sole ground that he thought his law partner had exercised poor judgment in having the defendant waive trial by jury. Further, upon the case being continued by the trial judge, defense counsel failed thereafter to file any formal motion for withdrawal of waiver of jury trial and did not raise the issue on the actual day of the non-jury trial.

Thus, under the circumstances of the case at bar, we view the ore tenus motion to withdraw waiver of jury trial as not being seasonably made in good faith and, therefore, find no abuse on the part of the trial judge in denying said motion. See Floyd v. State, Fla.1956, 90 So.2d 105; Pearson v. State, Fla.App.1968, 213 So.2d 616; Williams v. State, Fla.App.1973, 280 So.2d 516.

Accordingly, the judgment herein appealed is affirmed.

Affirmed.


text:
    James Alonzer PENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1782.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Rehearing Denied Aug. 29, 1975.
    Engel & Mishkin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., PEARSON, JJ., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Quartz v. State, Fla.App.1972, 258 So.2d 283; see Wallace v. State, Fla.App.1975, 319 So.2d 117.


author: RAWLS, Chief Judge. McCORD, Judge

text:
    Ernest SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. W-95.
    District Court of Appeal of Florida, First District.
    May 9, 1975.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   RAWLS, Chief Judge.

Appellant, Ernest Saunders, appeals from judgments and sentences for three direct criminal contempt charges committed by him in open court in the presence of the trial judge.

Appellant was called as a witness in the trial of his two brothers concerning a criminal episode of the threesome which allegedly took place on September 27, 1973. Appellant had previously been tried as to these alleged criminal acts and the jury had returned a verdict of not guilty. During his own trial appellant voluntarily took the stand and testified. When appellant was called as a witness by the State during the trial of his brothers, the following transpired:

“Q Would you please state your full name, sir?
“A Ernest Saunders.
“Q I would like to direct your attention to the 27th of September, 1973, and ask you if you were with your brothers on that date.
“A (No response)
“THE COURT: Did you understand the question, sir?
“A I understood the question.
“THE COURT: You are hereby directed to answer that question.
“A (No response)
“Q Have you ever taken a trip in a U-Haul truck with your brothers ?
“A (No response)
“THE COURT: Mr. Saunders, sit up straight, if you will, please, sir. Do you understand that question ?
“A I understood it.
“Q Have you ever taken a trip in ’73 with your brothers in a U-Haul truck?
“A (No response)
“THE COURT: The Court is hereby directing you to answer that question, Mr. Saunders, unless you wish to invoke some right of self-incrimination or any other right.
“A I take the fifth amendment.
“MR. MODESITT: Your Honor, this is not appropriate, and if we’d like to take it out of the hearing of the jury again, I would be glad to have it. There is no incriminating matter with regard to his answers and there is nothing that the defendant could be held for.
“THE COURT: Ladies and gentlemen, let me ask you to excuse yourselves again. We have another rule of law we need to get resolved. This is not unusual. I hope you don’t think it is.
“(Thereupon the jury left the courtroom and the following proceedings were had:)
“THE COURT: Mr. Prosecutor.
“MR. MODESITT: Mr. Saunders has been acquitted of any charges arising out of this incident in a prior jury trial. The State is prepared to offer him any immunity regarding the robbery or false imprisonment for which he. was charged, if the Court feels it is necessary. However, he has had a full trial on these charges and has been acquitted.
“THE COURT: He’s been acquitted of both charges that are contained in the information ?
“MR. MODESITT: Yes, sir, that is correct.
“THE COURT: Mr. Smith, do you have anything you wish to say ?
“MR. SMITH: No, your Honor, but I think in the interest of justice maybe Mr. Saunders’ former attorney, Mr. Minerva, might want to advise him of the kind of trouble that he may be getting himself into.
“THE COURT: I’m going to advise him of the trouble he may get into if he refuses to answer.
“Mr. Saunders, the Court is satisfied that there is no possibility of your being incriminated to the point that you will be jeopardizing yourself in any further prosecution. Both the United States Constitution and the Florida Constitution prohibit double jeopardy. Double jeopardy means that you cannot be tried twice for the same offense. And, your having been acquitted of the two counts in this Information in which your brothers are here on trial means that you cannot be tried again for that, even if you were to sit up here and admit yourself that you did it. You could not be tried for that offense or these offenses in the Information. Now, when either side asks you a question, let me say now that the Court considers, after having been advised of your acquittal of these charges, that you do not have the right to invoke the fifth amendment because there is no incriminating evidence that could subject you to any further legal proceedings in these matters. The State has also, in addition thereto, the prosecutor has even offered immunity from any further prosecution. Because of this, the Court has the authority to direct you to answer those questions. Now, in the event that you do not answer those questions as the Court directs you, you subject yourself to possible contempt, direct criminal contempt for direct refusal to abide by the Court’s directions or orders insofar as testimony. Now, the Court has the authority in a direct criminal contempt to sentence you to confinement or a fine or both if you refuse to answer the questions after the Court orders you to answer those questions. Do you understand all of that ?
“A (Witness nodding head)
“THE COURT: Do you understand that there is no possibility of your being incriminated by anything you have to say here, both under the prohibition against double jeopardy and the Florida Constitution and the United States Constitution, and also with the immunity that has been offered to you by the State Attorney’s office from any prosecution with regard to these offenses. There is no way that you can be prosecuted for anything having to do with the two counts in this information. Do you understand that ?
“A (Witness nodding head)
“THE COURT: Do you understand that you may be held in contempt if you do not answer the questions after I have directed you to do so ?
“A (Witness nodding head)
“THE COURT: Do you understand that as a result of a contempt citation by me you may be incarcerated or fined or both? Do you understand that?
“A (Witness nodding head)
“THE COURT: And let me further explain to you that just because you don’t want to testify against your brothers, you do not have the right to remain silent because of what I have previously explained to you, your acquittal and the immunity of anything having to do with these charges. Do you understand that? Do you understand that ?
“A (Witness nodding head)
“THE COURT: All right. Let the record reflect that the defendant has nodded his head in an understanding of the Court’s directions. Now, when I direct a question to you and when either of the attorneys address a question to you, you are directed to answer in an audible fashion. An audible fashion means by exercising your vocal cords and saying either yes or no or answering the question. Do you understand that?
“A (Witness nodding head)
“THE COURT: Now, I’m directing you to make an audible answer to my inquiries at this point. Do you understand that?
“A (Witness nodding head)
“THE COURT: Either say yes or no.
“A Yes.
“THE COURT: Yes, you do understand. All right. Now, is there any question in your mind as to the trouble that you may incur if you refuse to answer the questions directed to you by either the State Attorney’s office or by counsel for the defense ?
“A No question.
“THE COURT: No question in your mind whatsoever. All right, sir.
“MR. MODESITT: Your Honor, it might be appropriate, since the jury is out at this time, the defendant has made prior statements which are not necessarily incriminating against his brothers, but during his own trial gave testimony under oath and this is the only testimony we seek at this time. I believe it would be appropriate if the Court would apprise the defendant of the possible perjury charges which could arise if his statements here today contradict what he gave to the Court previously under oath.
“THE COURT: All right, sir. Let me advise you further, Mr. Saunders, that if you have testified previously in Court and you have testified under oath and you are under oath at this point, that any contradiction or any change of your testimony could subject you to a charge of perjury, which is within the authority of the State Attorney’s office to bring the charges of perjury against you if they see that your testimony differs and if there is some other intentional misrepresentation or aversion or change of story, that you subject yourself to a perjury charge, because you have previously been placed under oath and you have previously testified in other trials. Do you understand that ?
“A Yes.
“THE COURT: Is there any question in your mind about what I have explained to you at this point ?
“A No.
“THE COURT: Do you intend to answer the questions?
“A Hell no.
“THE COURT: What was that again.
“A No.
“THE COURT: I am directing you to answer the questions, Mr. Saunders. You are refusing the orders of the Court.
“A Refusing because I was brought here against my will, and I have received no subpoena and I was just drug out of the cell in Clearwater, yes, sir, and I’m not answering a damn one of the questions.
“THE COURT: I’m holding you in criminal contempt for use of profanity and I’m going to sentence you to—
“(Witness shaking fist)
“THE COURT: —you’re only going to load yourself up now. I’m going to sentence you to thirty days on the use of profanity and criminal contempt. I am also going to sentence you to sixty days for refusing to answer any questions ordered to you by the Court. Do you intend to sit there like a bump on a log and remain silent?
“A (No response)
“THE COURT: Now, I’m not trying to bait you or anything, I’m just trying to impress on you the importance of what you are taking on at this point. Those sentences will run consecutively. That means ninety days at this point you’re going to serve in the Leon County Jail. I am also going to fine you Five Hundred Dollars on each count of criminal contempt. That means a Thousand Dollars fine. Now, do you wish to reconsider at this point the stand that you have taken on your refusal to answer the questions?
“A (No response)
“THE COURT: I am offering you an opportunity to purge yourself of criminal contempt at this point. But make no mistake about it, this is business with me.
“A (No response)
“THE COURT: All right, Mr. Bailiff, take him out of the Courtroom.
“(The bailiff began to escort the witness toward the door of the courtroom)
“ERNEST SAUNDERS: Son-of-a-bitch.
“THE COURT: Come back here. All right. I don’t intend for this thing to break up in a big crying, shouting thing. Now, what words did you say a while ago?
“A (No response)
“THE COURT: Mr. Starner, did you hear him?
“MR. STARNER: Yes, sir.
“THE COURT: What did he say ?
“MR. STARNER: He called you a son-of-a-bitch.
“THE COURT: All right. I am sentencing you to a hundred days to run consecutively to that ninety days I have just sentenced you to. Now, let me advise you just to leave the courtroom and not make any further statements.
“(As Mr. Starner turned to escort the witness from the courtroom, a scuffle ensued)”

Before considering the points posed by appellant, we direct our attention to whether appellant who had testified at his own trial, had the constitutional right pursuant to the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of the State of Florida to refuse to testify in the subsequent trial of his brothers.

The trial judge was eminently correct in noting that appellant had been acquitted by a jury of charges arising out of this alleged criminal episode and thus could not again be tried on these charges regardless of his testimony in his brothers’ trial. However, the following colloquy shows that both the trial judge and the Assistant State Attorney recognized that appellant by testifying in the trial of his brothers could possibly subject himself to charges of perjury.

“MR. MODESITT: Your Honor, it might be appropriate, since the jury is out at this time, the defendant has made prior statements which are not necessarily incriminating against his brothers, but during his own trial gave testimony under oath and this is the only testimony we seek at this time. I believe it would be appropriate if the Court would apprise the defendant of the possible perjury charges which could arise if his statements here today contradict what he gave to the Court previously under oath.
“THE COURT: All right, sir. Let me advise you further, Mr. Saunders, that if you have testified previously in Court and you have testified under oath and you are under oath at this point, that any contradiction or any change of your testimony could subject you to a charge of perjury, which is within the authority of the State Attorney’s office to bring the charges of perjury against you if they see that your testimony differs and if there is some other intentional misrepresentation or aversion or change of story, that you subject yourself to a perjury charge, because you have previously been placed under oath and you have previously testified in other trials. Do you understand that?
“A Yes.”

In a similar case, the Third District Court of Appeal recently reviewed in detail the constitutional right of a citizen, which flows from both the federal and the state constitution, to remain silent. We do not here repeat the exhaustive analysis contained in Salem, supra, of the federal and state decisions which elaborate on this constitutional right of our citizens. Based on Salem, supra, and the decisions cited therein, we conclude that under the circumstances of this case appellant had the constitutional right pursuant to the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of the State of Florida to refuse to testify at the trial of his brothers. Appellant’s judgment of contempt for failure to testify at the trial of his brothers is reversed.

We now direct out attention to appellant’s judgments and sentences for contempt which resulted from appellant’s use of profanity in expressing his refusal to answer questions and in appellant’s calling the trial judge a “son-of-a-bitch”. While appellant had the constitutional right to refuse to testify he was not at liberty to exercise his right by the use of profanity or to call the judge a “son-of-a-bitch”. His conduct in this regard was clearly contemptuous as it was calculated to embarrass and obstruct the court in its administration of justice and to lessen the authority and dignity of the trial court. The only question remaining is whether the two judgments holding appellant in contempt for his profane conduct were properly entered by the trial judge. Appellant contends that these two judgments were not proper as: 1) the trial judge did not follow the procedures outlined in Florida Rule of Criminal Procedure 3.830; 2) the evidence is insufficient to support the summary punishment for contempt as to Count III, because it does not appear that the trial judge heard the contemptuous remark; and 3) the trial judge should have afforded the appellant the opportunity to be represented by counsel.

Direct criminal contempt is governed by Florida Rule of Criminal Procedure 3.-830, which provides in material part: 1) the judgment of guilt shall include a recital of those facts upon which the adjudication is based; 2) prior to adjudication, the judge shall inform defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt; and 3) defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.

Appellant argues that the record in this cause required reversal because the judge did not include a recital of facts upon which the adjudication of guilt was based, and that the fundamental error is the failure of the trial court to afford the appellant the opportunity to explain his actions. We do not agree.

The transcript speaks for itself. The trial judge patiently and courteously, with meticulous regard for this appellant’s constitutional rights, sought to avoid the confrontation that appellant knowingly brought about. The purpose of the subject rule is to afford a defendant the basic constitutional guarantees scrivened by our forefathers after escaping from star chamber proceedings. Can it be logically argued that this defendant was not apprised of the accusation against him and that he was not afforded an opportunity to present evidence of mitigating circumstances? The facts are clearly set out in the transcript which supports the trial court’s adjudication of “. . . I’m holding you in criminal contempt.” A step-by-step recitation of each provision of the subject procedural rule is not requisite upon the trial judge. The record of the proceeding when taken in its totality is the scale upon which fundamental rights must be weighed. Kelly v. State, 254 So.2d 22 (1 Fla.App.1971); Mower v. State, First District Court of Appeal, 308 So.2d 586, Opinion filed January 28, 1975; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Frontero, 452 F.2d 406 (5th Cir. 1971); and Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974).

As to appellant’s contention that his “son-of-a-bitch” statement was outside of the court’s hearing and thus not committed in the actual presence of the court, we again look at the record. The trial judge obviously heard an expletive which triggered his statement from the bench, “What did you say?” Again, the appellant did not respond to the opportunity to “. . . present evidence of excusing or mitigating circumstances . . . . ” but chose to remain silent, even after the bailiff advised the court, “He called you a son-of-a-bitch.” The court reporter had no difficulty in recording the profane statement by appellant. To hold under these facts appellant’s conduct did not constitute direct contempt would invite anarchy in the halls of justice.

Appellant’s third point on appeal is that the trial court should have afforded him a right to counsel after it became evident that appellant might be found guilty and sentenced for contempt. The orderly administration of justice must be preserved if civilized society is to prevail. The stage in the instant cause was set: Citizens performing their duty by serving as petit jurors, witnesses foregoing their private affairs in attending court; bailiffs, court reporters, clerks, and other personnel, all to assure the constitutional guarantees of this republic to those accused of violating the laws of the sovereign; and one witness, who flaunts the authority of the sovereign contending that his right transgresses all others, and that he is entitled to profane this judicial proceeding without being subject to summary punishment until and unless he has been afforded counsel. To so hold would make a mockery of our judicial process. The trial judge in the instant cause fully advised this appellant of 'his rights and obligations. He unlawfully and scandalously rejected the direct order of the trial court. It was not the time nor the place to halt the trial of his brothers and seek counsel for appellant. We are not unaware of the broad statement in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), “. . . that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel.” However, that case did not involve a direct contempt during the course of a trial. We hold that the “narrowly limited category of contempts” rule as set forth in Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), obtains the purpose of F.R.Cr.P. 3.830 (formerly Rule 1.830) as fully discussed by the Florida Supreme Court in Fisher v. State, 248 So.2d 479 (Fla.1971) obviated any requirement of counsel for appellant.

The judgments of the trial court holding appellant in contempt for using profanity and refusing to answer questions and for calling the trial judge a “son-of-a-bitch” are affirmed.

The judgments appealed are reversed in part and affirmed in part.

JOHNSON, J., concurs.

McCORD, J., concurring in part and dissenting in part.

McCORD, Judge

(concurring in part and dissenting in part).

I would affirm as to all of the contempt convictions. The question of whether or not appellant had the right to refuse to testify because to do so might uncover past perjury was not raised on this appeal either in the brief or in the assignments of error. The Appellate Court will not consider a question that has not been raised by an assignment of error. Paxton v. State, Fla.App. (1st), 304 So.2d 485. Had this point been raised on this appeal then we could get into the knotty questions involved in whether or not appellant had the right to refuse to give testimony upon making only a blanket invocation of the Fifth Amendment with no indication that it was based upon a fear that his testimony might uncover previous perjury or was invoked merely to secure immunity from perjury he was about to commit. See the following cases where such questions were considered. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971); Mason v. United States, 408 F.2d 903 (10th Cir. 1969); Kronick v. United States, 343 F.2d 436 (9th Cir. 1965); Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911). The only reason given by appellant for invoking the Fifth Amendment and refusing to testify was that he objected to having been removed from jail without a subpoena and brought to court. This affords no basis for the refusal.

      . Salem v. State of Florida, 305 So.2d 23 (3 Fla.App.1974).

      . Andersen v. Gerstein, 164 So.2d 891 (3 Fla.App.1964).

      . The appellant contended that all three judgments of contempt were invalid for these reasons. As we have already noted the judgment of contempt for refusing to testify was invalid for constitutional reasons and thus, we do not consider any further allegations concerning that judgment.


author: HOBSON, Acting Chief Judge.

text:
    Andrew Leo BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 74-1502.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
    James A. Gardner, Public Defender, Sarasota, and Steven H. Denman, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant pled guilty to the escape from lawful custody. Pursuant to a plea bargain he was sentenced to ten years imprisonment with the provision that if the original charges for which he was in custody were set aside on appeal and he was not tried or sentenced again, the sentence would be only four years.

Appellant argues that this sentence is improper. We agree. As stated by the Supreme Court:

“[I]t is of great importance to the prisoner that the sentence should be definite and certain, so as to advise him and the officer charged with its execution of the time of its commencement and termination, without' being required to inspect the records of another court or the record of another case.” Wallace v. State, Fla.1899, 41 Fla. 547, 26 So. 713, at page 725.

The case is remanded to the trial court for entry of a corrective sentence.

The judgment is affirmed and the cause is remanded with directions.

BOARDMAN and SCHEB, JJ., concur.


author:
RAWLS, Chief Judge.
      BOYER, Judge

text:
    Readus Roscoe SHEPARD and Geraldine Elizabeth Shepard, Appellants, v. STATE of Florida, Appellee.
    Nos. W-42 and W-136.
    District Court of Appeal of Florida, First District.
    May 12, 1975.
    H. Randolph Fallin and Edward J. Hopkins, Millar, Fallin & Lally, Jacksonville, for appellants.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Chief Judge.

“Amendment IV.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [Constitution of the United States]
“Article I, 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. Articles or information obtained in violation of this right shall not be admissible in evidence.” [Constitution of the State of Florida]

At approximately 9:30 p. m., January 31, 1974, two Jacksonville policemen met with a confidential informant who advised them that appellants had that day sold some amphetamines in the informant’s presence in a motel room which appellants had been occupying for two of three days. The two policemen were joined by a third policeman and immediately went to the named motel where they procured from the manager the number of appellants’ room and a passkey. The officers, who were dressed in what they described as casual attire, proceeded to the room occupied by appellants. One of the officers, whose hair style was long, knocked on the motel room door. Appellant, Readus Shepard, opened the door with the night chain in place. The long-haired plainclothes officer identified himself as “police” whereupon Shepard slammed the door. Within a matter of seconds, the three officers kicked the motel room door open and proceeded to search the bedroom and the bathroom occupied by appellant, Readus Shepard, and his wife, Geraldine. A small quantity of amphetamines were found in the bathroom in Ger-áldine’s possession. The commode in the bathroom was completing a flushing cycle.

Upon the foregoing essential facts, the trial judge denied a timely motion to suppress introduction of the articles obtained as a result of the search into evidence. The officers testified on deposition that:

“A We .were — as far as I was concerned we were going to search the room. [Record at page 27, hereafter referred to as R.]
“. . . We were acting as if we had a search warrant; which would have been to go there, search the residence or — if we had the search warrant we would have gone there and searched the place, and even if we hadn’t found anything we wouldn’t have made the arrest. [R at 53, 54]
“A Because I told you that we were basing our action there just as if we had a search warrant. At no time when we execute a search warrant, even though we have probable cause to obtain the search warrant for various reasons, — at that time if we would not have found anything we would not have arrested him. [R at 77]
“. . . I mean, maybe the necessary probable cause for arrest, but at such time it would have came [sic] to court we would not have had any evidence to substantiate this. So, we did not go under this pretense. We went there to search the place just as if we would if we had the search warrant.” [R at 76] [Emphasis supplied.]
“ . . . We had planned to go there to search the room with consent or without consent.” [Transcript at 87]

To sum up, these officers, in the name of probable cause predicated upon information of an unnamed individual of one sale of amphetamines, during the night kicked appellants’ bedroom door open for the sole purpose of conducting a search.

A basic argument submitted by the state as to the reasonableness of the search is that one of the officers testified that during his employment with the Sheriff’s office, he had applied for some 50 search warrants and that during working hours, it took some two to three hours to obtain a search warrant. The state then reasons that it would have been impractical to procure a search warrant at this time of night. The absence of efficient administrative machinery on the part of the sovereign does not repeal the constitutional guarantee to a citizen to be secure in his bedroom during the nighttime. The state further argues that the officers at that time of night were apprehensive that appellants might: a) sell the remaining evidence; b) leave their motel room, or c) destroy the evidence. In addition, the state contends that the police officers felt that by their actions they might prevent further sales of drugs as appellant, Readus Shepard, was known to them for his reputation of criminal activity, and that to maintain surveillance of appellants until a search warrant could have been obtained was not practical. Poppycock!

These officers possessed not one scintilla of independent knowledge as to appellants’ involvement with drugs in that room, or any information that “the evidence might be sold”. As to appellants leaving the motel room, the information possessed by the officers was that this husband and wife had lived in the subject room for two or' three days, and nothing indicated they were about to depart the room during the nighttime after 10:00 p. m. An isolated sale of drugs had been observed by this still unidentified person labeled a “confidential informer”. No other information was possessed by the officers as to any potential sale of amphetamines; however, surveillance of the premises might well have been in order. . Such course of action certainly was more reasonable than kicking the door open. The only reason for not establishing surveillance is one of the officer’s statements that such was not practical. As to Readus Shepard’s (appellant’s) propensity for criminal activity, this was supported solely by an officer’s testimony that, “. . . We had received information, I should say, about Mr. Shepard through anonymous phone calls and complaints in our office, and knowing that this informer was familiar with the people in that area that’s why I asked him about Mr. Shepard.”

Our forefathers chiseled in the granite of our State and Federal Constitutions the right to peacefully retire in our bedrooms at night without the fear of storm troopers kicking the door open and ransacking the premises. Suspicion by law enforcement officers of some unlawful activity within the confines of a bedroom is not authority for them to self-endow themselves with a search warrant and unilaterally proceed to execute such mythical instrument. To hold otherwise would be to invite a totalitarian police state. See Thurman v. State, 156 So. 484 (Fla.1934); Kraemer v. State, 60 So.2d 615 (Fla.1952); Boynton v. State, 64 So.2d 536 (Fla.1953); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947), and Vale v. Louisiana, 399 U.S. 90, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

The judgments appealed are reversed with directions that appellants be discharged.

Reversed.

McCORD, J., concurs.

BOYER, J., concurs specially.

BOYER, Judge

(concurring specially).

I am in complete agreement with the foregoing opinion. The actions giving rise to reversal are virtually identical to those condemned by, us in Hannigan v. State, Fla.App. 1st 1975, 307 So.2d 850. We here again experience the same frustrations as there expressed. Appellants’ guilt is apparent but the constitutional rights of all citizens are paramount. We must now therefore again reverse a conviction simply because the police refused to follow the simplest of procedures. Had those procedures not been ignored guilty felons would have been duly punished. Our frustrations must not, however, take precedence over constitutional rights. Reversal is required.

      . Appellants were registered at the motel in their correct names.

      . The other two officers concealed themselves around a corner of the building.


author: BOYER, Judge. RAWLS, Chief Judge

text:
    William Harold GRISHAM, Appellant, v. STATE of Florida, Appellee.
    No. W-145.
    District Court of Appeal of Florida, First District.
    June 23, 1975.

      Louis O. Frost, Jr., Public Defender, and James O. Brecher, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BOYER, Judge.

Appellant-defendant Grisham appeals from an adjudication of guilt and the judgment entered thereon pursuant to his plea of nolo contendere to the crime of assault with intent to commit rape.

The sole point on appeal is whether appellant was entitled to discharge because of the provisions of Florida Statute 917.16 and Florida Rules of Criminal Procedure 3.191(a)(1) (“Speedy Trial without Demand”).

A chronological review of the record is important, viz:

November 16, 1972 — Appellant was charged by a two-count information of breaking and entering to commit a felony and assault to commit rape.
January IS, 1973 — Pursuant to motion filed by the state attorney, appellant was ordered to be examined by two doctors to determine whether he was a mentally disordered sex offender.
February 23, 1974 — The trial court entered an order committing appellant to the Florida State Hospital as a mentally disordered sex offender pursuant to Florida Statute 917.12.
February 21, 1974 — The trial court entered an order pursuant to the provisions of Chapter 917, Florida Statutes, directing that appellant be returned to the Duval County Jail at Jacksonville, Florida.
April 8, 1974 — Appellant withdrew his plea of not guilty and entered a plea of nolo contendere to the charge of assault with intent to commit rape.
April 20, 1974 — Appellant moved to withdraw his plea of nolo contendere. In arguing the motion, privately retained counsel advised the court that:
“ . . . [Wjhen I entered that plea I was unaware, really, of the Statute 917.16 which took effect January 1st, 1971, and was in effect at the time he was sentenced and that statute under which he was committed, he was sentenced to the State Hospital specifically providing by 917.16 that defendant not be deprived of speedy trial.

The court in denying counsel’s motion stated:

“That may be the law but if it is, it’s a dumb law and I will deny your motion. I will let you take it up on appeal, but I don’t think the law was designed for that purpose.”
May 20, 1974 — Judgment and sentence entered.

The state reasons that appellant’s unconditional plea of nolo contendere is in effect a “guilty plea” and as such waives all non jurisdictional defects, citing Seay v. State, 286 So.2d 532 (Sup.Ct. Fla.1974) and Peel v. State, 150 So.2d 281 (Fla.App. 2nd 1963). It next asserts that assuming appellant was denied a speedy trial, such denial is a nonjurisdictional defect that is waived by the entry of an otherwise valid guilty plea citing Fowler v. United States, 391 F.2d 276 (5th Cir. 1968); White v. State, 273 So.2d 782 (Fla.App. 2nd 1973); and Wells v. State, 297 So.2d 647 (Fla.App. 1st 1974). It last concludes that since the “nolo contendere” plea was equivalent to a guilty plea that the speedy trial claim was waived when that plea was tendered and accepted by the trial judge.

F.S. 917.16, upon which appellant heavily relies, provides as follows:

“The provisions of this chapter shall not deprive the defendant of his right to receive a speedy trial, but an application by the defendant to invoke the provisions of this chapter shall constitute a waiver of these rights. A defendant who is subsequently acquitted of the charges for which he was being tried shall no longer be subject to the provisions of this chapter."

However, F.S. 917.20 provides that:

“The division of corrections shall cause the committed person to be examined periodically to determine the progress of treatment and it shall file a written report of these examinations in the committing court not less than once a year. At any time after commitment, the division may file a written application in the committing court stating facts showing that the person has improved to a degree that he will not be a menace to others. The court shall set a hearing and order the committed person returned to the jurisdiction of the court. The hearing shall follow the procedures for the original hearing except that the appointment of psychiatrists shall be within the court’s discretion. If the court determines that the person has not recovered from the disorder, it shall order his return to the institution to be held under the previous commitment. If the court determines that the person has recovered from the disorder to a degree that he will not be a menace to others, it shall order him discharged from the institution. If criminal proceedings are still pending against the person, they shall recommence at the time of the discharge order.” (Emphasis added)

According to our calculations, 100 days elapsed between the time that appellant was charged (November 16, 1972) and the date of his commitment to the Florida State Hospital (February 23, 1973). The 180 day “speedy trial time” was tolled during appellant’s stay at the hospital. To hold otherwise would lead to the result that anytime a defendant is found to be a mentally disordered sex offender and therefore committed for treatment pursuant to Chapter 917 Florida Statutes the “speedy trial time” would virtually always expire if the offender were treated for any reasonable period of time and the concluding sentence of F.S. 917.20, above emphasized, would be rendered meaningless.

Assuming that the time again commenced to run when the trial court entered its order directing that appellant be returned to Duval County (February 21, 1974) the time was again tolled when appellant withdrew his plea of not guilty and entered a plea of nolo contendere. (April 8, 1974) (Please see Rubiera v. Dade County ex rel. Benitez, Sup.Ct. Fla.1974, 305 So.2d 161)

We find therefore, and so hold, that appellant’s contention that he is entitled to discharge under Rule 3.191(a)(1) RCrP is without merit. Implicitly we hold that application of the reasoning of Ru-biera v. Dade County ex rel. Benitez, supra, leads to the conclusion that because of the various actions which have had the effect of tolling the time the “speedy trial time” has not yet expired.

It follows therefore, that inasmuch as the “speedy trial time” has not yet expired appellant has in no manner been prejudiced by invocation of the provisions of Chapter 917, specifically the waiver provided by F.S. 917.16. Accordingly, although a motion to withdraw a plea of nolo contendere or a plea of guilty made prior to adjudication of guilt and imposition of sentence should be granted if it is apparent that a defendant has not voluntarily waived basic rights of which he was not aware, nevertheless in the case sub judice the waiver was not prejudicial, as above observed, therefore the learned trial judge was eminently correct in denying appellant’s motion to withdraw his plea of nolo contendere.

No prejudice nor error having been demonstrated, the judgment and sentence appealed are

Affirmed.

McCORD, J., concurs.

RAWLS, C. J., dissents.

RAWLS, Chief Judge

(dissents).

I dissent. The record is uncontradicted that appellant was committed to the mental institution upon motion of the state. Florida Statute 917.16 is explicit in stating that when a defendant is committed to a mental institution pursuant to Chapter 917 upon motion of the state, he is not denied his right to receive a speedy trial. The statute is equally clear in specifically stating that only if a defendant requests that the provisions of Chapter 917 be invoked shall there be a waiver of “these rights”. The “waiver” referred to by the majority is by the plain language of the statute applicable only if the defendant invokes the provision of Chapter 917. While the subject statute may well, as characterized by the trial judge, be “ . . . a dumb law . ”, nevertheless, it is a law and it is our duty to abide by it as written.


text:
    Daniel R. McLEAN, Appellant, v. STATE of Florida, Appellee.
    No. X-146.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
    Leo A. Thomas, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We have examined the record and briefs of counsel and find no excess of jurisdiction by the trial court and no departure from the essential requirements of law.

Certiorari denied.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


author: SCHEB, Judge.

text:
    L. C. L., Jr., a child, Appellant, v. STATE of Florida, Appellee.
    No. 75-87.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.

      Robert E. Jagger, Public Defender, and Larry B. Roberts, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

This appeal involves a question of whether the juvenile’s mother was properly notified of a hearing which resulted in the juvenile being certified for trial as an adult on felony charges.

The state charged the appellant, L.C.L., Jr., age 17, with theft of an automobile and with three counts of breaking and entering. The State Attorney moved to transfer the charges from the juvenile division for trial by the criminal division of the Circuit Court. At the hearing on the motion, held on December 17, 1974, the trial judge was informed that a notice of hearing had been mailed to the juvenile’s mother on December 2, 1974. Although there was no evidence the mother had received the notice, the court stated he would . . assume delivery was made of the notice and proceed with the hearing.” The court further noted that L.C.L., Jr. lived with his sister who had been contacted about the hearing, but who indicated a lack of interest in the matter. There was no evidence, however, that the sister was legal custodian of the appellant. On the day following the hearing, the trial court entered an order finding probable cause that the appellant had committed the four felonies. Pursuant to Fla.Stat. § 39.09 and RJP 8.110(b), the court ordered the cause transferred for prosecution in the circuit court on the same basis as if the appellant were an adult.

The appellant contends it was reversible error for the court to proceed with the waiver hearing without the required notification to his mother. We agree and reverse.

A State Attorney may file a motion requesting the juvenile judge to transfer for criminal prosecution a child 14 or more years of age at the time of the conduct charged, who is alleged to have committed an act which would be a violation of law if committed by an adult. Fla.Stat. § 39.-09(2) (a). Upon conduct of such a “waiver hearing” notice of the hearing shall be by summons as provided in Rule 8.090 RJP, Subsection (d) of which provides as follows:

The summons shall be served upon the following persons:
(1) A parent having custody or the legal custodians, actual custodians, and guardian ad litem, if there be any other than the parents.

No summons was issued and the child’s mother did not appear in person or by counsel. There is, in fact, no evidence that she received any notice of the hearing. True, there was evidence of a letter being forwarded to the appellant’s mother by certified mail, but there was no return receipt or other evidence to indicate she had actually received the notice of the hearing.

While we are not aware of any decisions dealing directly with the question of whether the notice requirements for waiver hearings are mandatory, there is an impressive line of cases which persuade us it is. In Williams v. Cochran, Fla.1961, 126 So.2d 887, the Supreme Court held that non-compliance with Fla.Stat. § 932.38 (now Fla.Stat. § 92S.07), which requires that notice be given to the parent of an unmarried minor, invalidated a conviction for the crime of escape. See also Di Marco v. Cochran, Fla.1961, 127 So.2d 674. In Hall v. Florida State Department of Public Welfare, Fla.App. 4th 1969, 226 So.2d 39, our sister court referred to the requirement of Fla.Stat. § 39.06(2), that a summons be issued to parents in a juvenile court proceeding as being mandatory, and In Re D, Fla.App. 4th 1971, 245 So.2d 273, held that a summons issued by Juvenile Court to a child’s parents which did not recite the nature of the charge against the minor was defective and neither satisfied the statutory requirements nor the basic requirement of due process of law. See also the opinions of this court in McIntosh v. State, Fla.App. 2d 1973, 274 So.2d 23, and Milligan v. State, Fla.App. 2d 1965, 177 So.2d 75. In each of the cited cases the court was scrupulous in preserving the parental prerogatives provided by statute.

Appellee recognizes that Fla.Stat. Ch. 39, and Rule 8.090 of Florida Rules of Juvenile Procedure, required that a summons be issued to the appellant’s mother, and is candid in admitting this omission in the proceedings below. The appellee contends, however, the issue here is the magnitude of consequences resulting from that omission, reasoning there was either an implicit waiver of the right, or that notification to the child’s sister satisfied the policy consideration behind the notice requirements. We cannot presume the appellant’s mother would have failed to provide some parental support which may have aided the child as well as the court in arriving at a decision, had she been properly notified. Nor, can we find a waiver of notice to the mother on basis of an attorney being present and representing the child in his own right. Milligan v. State, supra.

Accordingly, the order of the court below is reversed and the cause remanded for further proceedings consistent with this opinion.

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

      . See also Fla.Stat. § 39.06(4). We need not decide whether this statute remains effective in light of the rule quoted above. Cf. Davis v. State, Fla.1974, 297 So.2d 289.