author: BOYER, Judge. BOYER, Judge.

text:
    Daniel McCLELLAN, Appellee, v. STATE of Florida, Appellant.
    No. FF-98.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Rehearing Denied June 26, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Defendant (appellant here) convicted of first degree murder and robbery, now appeals the judgment and sentence.

Defendant was charged with the murder of David (Boy) Wood, who was beaten, robbed and died of a heart attack while in route to the hospital. He was arrested more than a month later by Alabama deputies on the basis of a Florida arrest warrant.

After defendant was arrested, he was taken to jail and his car impounded. The Alabama arresting officer signed an affidavit requesting a search warrant to search defendant’s car, which affidavit recited:

“Before me, Robert L. Bowers, the undersigned magistrate personally appeared William S. Grover, who after first being duly sworn according to law, does depose and say as follows:
“That he is a deputy sheriff of Chilton County, Alabama and he is presently working with the state investigators and some Florida authorities on the investigation and apprehension of a fleeing, wanted felon who is a fugitive from Washington County, Florida, on a certified copy of a first degree murder warrant and a robbery warrant from said county, which is in the hands of the affiant and calls for the arrest of one Daniel L. McClellan for the murder and robbery of one David ‘Boy’ Wood, that last night the affiant sighted the car of said fugitive at Summers Used Car Lot in Clanton, Alabama that fit the description that the affiant had been given: Affiant followed the said car away and some 5 miles away affi-ant and another car of officers stopped said car on highways 65; before stopping the car affiant also noticed that it had a new and different license tag on it from the last time affiant had seen the car and he thought that it was probably a switched tag (this has later been checked through the tag records and is verified that it is switched). Upon seeing the driver license of the driver which was in the name of Daniel L. McClellan, affiant recognized said man as fitting the physical description that he had been given as a white male, approximately 5 feet 10 inches tall with long black hair. Affiant arrested him there on probable cause for murder and robbery and brought him to the Chilton County jail and the car. The Florida officials are also appearing with the affiant with their warrant and complete file on the murder and robbery and there is now an immediate need to search said car for weapons and items used in and connected with said murder and robbery, these being a pair of surgical gloves, a stocking type mask (two masks) with tape around the eye holes, a multiple colored long sleeved cloth shirt, a pair of zipper boot type shoes, a 38 pistol, a 357 magnum pistol, a ger-man luger pistol, and any other firearms and weapons that may be in the car, a small zipper ‘AWOL’ flight bag. The said car is now parked at the Chil-ton County jail and is described as a 1974 Mark IV Lincoln Continental 2-door, tan over copper with vinyl top, bearing license tag Alabama 14-11520 at time of apprehension, with VIN # F4Y89A825681F, and search for any other items that may be evidence of said murder and robbery.”

In addition to that affidavit, a Florida law enforcement officer, Doug Wright, appeared before the Alabama judge and gave sworn oral testimony in support of the issuance of the warrant. Wright later testified at the trial that he told the Alabama judge the defendant was wanted for first degree murder, that he had been told by the brother of defendant’s girl friend that certain paraphernalia and weapons connected with the crime were in the defendant’s possession and that the defendant’s girl friend had told him there were guns in the back of the car. Wright further testified that the Alabama official told him there was a man in the back seat of the car when defendant was arrested and the description of that man matched that of an alleged accomplice in the murder, Joe Brown. Because of his suspicion that Brown had been in the car at time of defendant’s arrest, Wright told the Alabama magistrate of his belief that weapons and other evidence connected with the murder were still in the car. The search warrant was issued. The evidence seized from the car as a result of the search was a shirt allegedly worn by the defendant at the time of the offense, a bag containing masks and rolls of tape allegedly used during the offense, a pair of gloves, one of which contained defendant’s fingerprints, and another bag later identified by Joe Brown. The defendant moved to suppress the evidence obtained as a result of the search which motion was denied. The trial judge ruled that under Alabama law the affidavit could be supplemented by oral testimony to establish probable cause.

At the trial, several witnesses including co-defendant, Joe Brown, testified against defendant. Brown testified that when he and defendant attacked Wood to rob him, Brown hit Wood in the back of the head with the gun he was holding while defendant hit Wood in the front of the head with the gun he was holding. Brown stated Wood put up quite a fight but they were finally able to wrestle him into the woods whereupon a truck drove by and he and defendant discontinued their attack and left. Wood died a few minutes later as a result of a heart attack.

During the trial, the state called William Gibbons to testify. Defense counsel objected on the grounds that he had been given the witness’s name the preceding Wednesday before the trial, the witness’s address was given as the Montgomery area, and counsel was unable to depose him because he had no idea where to find him. Counsel further objected because the witness was apparently going to testify to some sort of admission against interest or confession by the defendant and the state had responded to discovery that there were no confessions, no admissions, and no testimony or statements given by the defendant. In the discussion that followed, the trial judge noted that the name “Gibbons” had been referred to extensively in the material accompanying the motion to suppress filed prior to trial, and therefore there was no sufficient surprise to keep Gibbons off the stand. The trial judge acknowledged defendant was entitled to know what statements Gibbons was going to make and he ordered a recess for the day to give defense counsel an opportunity to depose the witness. The next day, on the stand, Gibbons testified that when defendant was told there was a murder warrant for him in Florida, he stated “the man was alive when they left him.” On cross-examination, the defense counsel asked Gibbons the question, “you didn’t testify to that yesterday, did you, sir?” To which Gibbons responded, “I don’t remember whether I did or not”. Although defense counsel attempted to impeach Gibbons on the basis of his prior inconsistent statement, he did not object to the admissibility of Gibbons statement nor otherwise move the trial court to determine what prejudicial effect, if any, those statements had on defendant’s case. At this point, it is necessary to mention that this court does not have the benefit of a transcript of Gibbons’ deposition with which to compare Gibbons testimony on the day of the trial.

Later in the trial, the state called Dale Newt. Defense counsel objected on the basis that Newt was a lab analyst and was going to testify as to lab work performed on some of the evidence seized, that such information was not furnished in the state’s answer to discovery and counsel had not had an opportunity to depose Newt. The state responded that Newt’s lab report had been furnished to the defense on the same day as to the state, which was the previous day. The trial judge allowed Newt’s testimony because the report had been supplied “as early as could be done on the state knowing of it and that in view of the fact that the defendant had the opportunity to depose the witness prior to trial, although it may have been the eleventh hour, the court would hear the testimony.” Newt testified that the two buttons found at the scene of the crime were similar to the remaining buttons on the shirt worn by the defendant the day Wood was killed and that they could have come from defendant’s shirt. He further testified that the thread from the spool in the defendant’s girl friend’s house was similar to the thread used to sew the buttons on defendant’s shirt.

Finally, Wood’s autopsy showed that he had lacerations on the head, no broken bones, and the skull had not been fractured. None of those wounds were serious enough to be fatal. The cause of death was severe coronary arteriosclerosis and blood clots in one of the arteries that enter the heart. A pathologist testified at trial that Wood’s death was caused by a heart attack brought on by a stressful situation and that the severe physical struggle Mr. Wood engaged in before his death could have caused his heart attack. The last person to testify was defendant. He denied any involvement either with the planning or the carrying out of the robbery of David Wood. The jury found defendant guilty of first degree murder and he was sentenced to life imprisonment.

The defendant contends that the affidavit submitted to the Alabama Magistrate without the accompanying oral testimony is insufficient under Florida law to establish probable cause, citing Swartz v. State, 316 So.2d 618 (Fla. 1st DCA 1975), and that without the warrant procured on the basis of the affidavit and accompanying oral testimony, the search was invalid because there were not exigent circumstances in this case which justified a search of defendant’s car.

On the other hand, the state contends that it is not necessary to reach the issue of the sufficiency of the affidavit because the police officers were justified in searching the car without a warrant under the principles announced in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). The state also contends that even if we reach the issue of the sufficiency of the affidavit, the defendant’s conviction should be affirmed because the affidavit used to procure the search warrant was sufficient to meet Florida probable cause standards and was valid under both Alabama and Florida law.

This court finds that a search warrant was necessary for a valid search of defendant’s car and without the warrant, the search would have been invalid. We agree with defendant that the principle of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is controlling in this situation. Under the Chimel ease, a search incident to an arrest is limited to the person and the area in the immediate vicinity from which he might obtain a weapon or evidence. Searches beyond those boundaries are governed by the requirement that a warrant must be obtained, in the absence of exigent circumstances. We find no exigent circumstances in this case justifying a different rule. (See also Raffield v. State, 351 So.2d 945 (Fla.1977).

The next question is whether or not the affidavit, sub judice, is sufficient on its face to justify the procurement of a search warrant. We hold that it is. Under Swartz v. State, supra, an affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause for the issuance of the warrant and in Florida the affidavit cannot be supplemented by oral testimony to prove the probable cause. However, just as in Swartz v. State, supra, the affidavit, sub judice, even though it is not a model, was sufficient to demonstrate probable cause for searching defendant’s vehicle for weapons and items used in and connected with the murder and robbery of David Wood where defendant was under arrest and charged with those crimes.

Further, we hold that evidence procured in a sister state pursuant to a search valid under the laws of that state is admissible in the trial of a criminal case in Florida notwithstanding that the warrant validly issued and executed in the sister state would not have been or was not valid under the laws of Florida; provided the warrant and its execution in the sister state does not offend U.S. Constitutional standards. In so holding, we have not overlooked the decision cited by defendant of People v. Rogers (Cal.App.1977), 141 Cal.Rptr. 412, but we do not find the principle of that case applicable here. The warrant, sub judice, issued on the basis of the affidavit supplemented by the oral testimony, does meet U.S. Constitutional standards. Accordingly, we affirm on this point.

The second point raised by defendant is whether or not there was insufficient inquiry by the trial judge regarding the state’s violation of the discovery rules concerning the testimony of William Gibbons and Dale Newt. The defendant contends that the trial judge failed to make a full inquiry into the circumstances surrounding the state’s breach of the discovery rules and that therefore the conviction should be reversed, citing Richardson v. State, 246 So.2d 771 (Fla.1971) and Cumbie v. State, 345 So.2d 1061 (Fla.1977). The state contends the trial court correctly recessed the trial and allowed the defendant to depose Gibbons thereby eliminating any prejudice defendant may have suffered, relying on Cooper v. State, 336 So.2d 1133 (Fla.1976).

W’hen the defendant asked for discovery of any of his statements, confessions or tape recordings, the state admittedly neglected to give Gibbons proposed testimony as to defendant’s oral statement. In fact, the state notified defendant shortly before the trial that Gibbons would be a witness but defense counsel was unable to locate him or depose him prior to trial. The trial court’s action in adjourning and allowing defendant to take Gibbons deposition may well have cured the prejudice to defendant caused by the state’s late notification that it intended to call Gibbons as a witness, but that action did not cure the state’s failure to give defendant the oral statement made by him to Gibbons pursuant to Fla.R.Crim.P. 3.220(a)(1)(iii).

Although defendant suggests that in his deposition Gibbons did not mention any admissions against interest made by defendant, this court cannot make that assumption since it does not have a copy of the deposition in the record on appeal. One thing is clear, the next day at trial Gibbons did testify that he heard defendant say “the man was alive when they left him”. The question therefore arises whether at that point the trial court should have inquired into the prejudice to defendant under the rules announced in Richardson v. State, supra, and Cumbie v. State, supra. We hold that the admission into evidence of Gibbons’ testimony concerning defendant’s oral statement, without conducting inquiry into the question of prejudice, was reversible error.

We rely on Cumbie v. State, 345 So.2d 1061 (Fla.1977), wherein the court stated:

“It is clear that the trial court’s investigation of the question of prejudice was not the full inquiry Richardson requires. No appellate court can be certain that errors of this type are harmless. A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as Richardson indicates. Especially is this so in cases such as this, where a false response is given to a request for discovery. * * * ” (345 So.2d at page 1062).

Also, this court’s decision in Bell v. State, 327 So.2d 869 (Fla. 1st DCA 1976) is instructive on this point. In that case the prosecutor failed to furnish statements of defendants made to a witness in response to a discovery demand. When the state called the witness and asked questions concerning the defendants statements, the defendants objected. The trial court allowed the witness’s testimony, finding that the defendants had been furnished with the witness’s name and could have taken his deposition, and that the statements made to the witness were the same in substance as those made to police officers which were furnished to defendants in discovery. As in this case, the trial judge there called a recess to give defense counsel an opportunity to interview the witness after which the witness was allowed to testify. The witness there testified to essentially the same statements made to the police officers, but did elaborate on the defendants’ statements. Later during closing arguments, the prosecutor exploited the difference in statements made to the witness and to police officers in an attempt to attack the defendants’ credibility. Because of the prejudicial effect of the failure to adequately respond to discovery, coupled with the statements made by the prosecutor during closing arguments concerning the differences in defendants’ statements, this court reversed and remanded for a new trial. We agree that as in Bell v. State, supra, the defendant here is entitled to a new trial.

As above stated, the defendant denied any involvement at all with the planning or carrying out of the robbery. Accordingly, the conviction of murder and robbery were both infected with the error herein found.

Defendant’s third and last point is that the state failed to present sufficient evidence to prove that the acts charged against defendant were the cause of death. We find that point to be without merit and controlled by the Florida Supreme Court’s decision in Swan v. State, 322 So.2d 485 (Fla.1975).

AFFIRMED in part and REVERSED in part and remanded for a new trial.

McCORD, C. J., and MELVIN, J., concur.

ON PETITION FOR REHEARING

BOYER, Judge.

The state has filed a petition for rehearing of our above opinion.

In its petition, the state urges that this court erred when it assumed that two inquiries were required, one into the prejudice caused by late notification and another into the prejudice surrounding the state’s failure to disclose the existence of defendant’s oral statement. Next, the state urges that this court erred when it held that the trial court’s lack of inquiry into the surrounding circumstances of the state’s failure to disclose defendant’s oral statement was reversible error and not harmless. Finally, the state attached a copy of William Gibbons’ deposition to its petition and argues that since Gibbons did testify to a much more incriminating statement in his deposition (defendant told him to kill the Taylor boys if anything happened to defendant) that defendant’s ability to prepare for trial was not impaired because he was prepared to defend against a much worse admission. Thus, the state concludes that under the principles announced in Leeman v. State, 357 So.2d 703 (Fla.1978), defendant’s conviction should not be reversed because the state’s violation of a rule of criminal procedure did not result in prejudice or harm to defendant.

The defendant has filed a response to the petition for rehearing moving this court to strike Gibbons’ deposition since it was not properly made a part of the record on appeal and stating that even if the court does consider the deposition, it is still true that defendant did not testify on deposition to the statement he made at trial. Therefore, the defendant reasons that the deposition did not cure the state’s failure to give the defendant that oral statement as required by Fla.R.Crim.P. 3.220(a)(1)(iii) and that Cumbie v. State, 345 So.2d 1061 (Fla.1977) requires reversal.

The trial court has the discretion to determine whether the noncompliance with Rule 3.220 results in harm or prejudice to a defendant, but that discretion can be properly exercised only after the court has made an adequate inquiry into all the surrounding circumstances. Richardson v. State, 246 So.2d 771 (Fla.1971). In Richardson, the Supreme Court quoting from the decision in Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970), addressed the requirements of this inquiry as follows:

“Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.
“Once the court has considered all of the circumstances, it has authority to enter such order as it deems just. Rule 1.220(g) CrPR. However, in those cases where the court determines that the state’s noncompliance with the rule has not prejudiced the ability of the defendant to properly prepare for trial, we deem it essential that the circumstances establishing non-prejudice to the defendant affirmatively appear in the record.” (246 So.2d at page 775).

Nowhere in the record of this case is the non-prejudice to defendant affirmatively established. When the state’s failure to disclose the existence of defendant’s oral statement was brought to the attention of the trial court, the transcript of the trial reveals the following colloquy took place:

“Mr. Sheffield: Judge, I was furnished this man’s name and I can show you the document that I was furnished late Wednesday when I was leaving town after deposing Joe Brown and his address and all was listed as quote ‘Montgomery Area’ which is a big area. Now, I have attempted to also talk to him ever since I have been here, to set up something to talk to him. He’s not been here; today is the first day he’s walked in here. I think that certainly the rules allow amending discovery. The question is how much time has the State got to amend discovery in a case. I have an answer to discovery in this case that states that there were no confessions, there were no admissions, there was no testimony or statements given by the Defendant. I relied on that at its face and now here the second day into a trial they bring a witness in that I have had absolutely no opportunity to depose. Not only that could I not depose him, I had no idea where to find him. And they’re stating that, it is my understanding, he’s going to be put on the stand to go into what apparently is some sort of admission against interest or confession by the Defendant and I think that it is highly prejudicial. I think that it is totally surprising to us and I think it should not be allowed to be put into the trial.
“Mr. Bower: Your Honor, in response to Counsel’s argument, to the court, the rules contemplate in response to demand for discovery oral confessions and if the Court would allow me the time I would be happy to show the Court some cases on the effect. The confession in that context as used in the rules of discovery are confessions given to police officers through interrogation purposes. Now, what he’s saying in a nut shell is that I didn’t talk to this man and I assume he’s representing this, it is not clear. I would like the Court to get it clear. I assume he’s representing that he had never heard this man’s name before Wednesday of last week, but he’s saying to the Court, T did not depose him. I’m surprised because I didn’t depose him and now because I didn’t get a chance to depose him I want you to exclude him.’ The State can’t be held responsible for that. * * ”
“Mr. Bower: I don’t have any objection to him recessing for the day and deposing the man if that’s what you want to do.
“The Court: Do you have anything to say? That’s what I’m going to do. I have to say in studying the motion to suppress last night the name ‘Gibbons’ is extensively used. The Court has knowledge that Gibbons was an undercover agent or informer of some kind and in the Montgomery area I’m not sure which, but that his name was used extensively in quotes from both attorneys of record in reference to the motion to suppress. I'm not concerned about the admissibility of the declaration statement or whatever they are other than that I cannot agree with you, Mr. Sheffield, that it is sufficient, that Bill Gibbons’ name is sufficient surprise just to keep him off the stand and I would authorize and order that a deposition be taken this afternoon if you desire.
“Mr. Sheffield: Judge, I'm not asking that he not be placed on the stand. The only thing I’m concerned about is the alleged confession or admission that he is suppose to have testified to. Now, I understand that he has several things he’s planning to testifying. I have no objection to the man taking the stand but that’s the only point I’m concerned about because I have been advised that there were none.
“The Court: You are entitled to know that prior to him getting on the stand. Don’t you agree, Mr. Bower, either by you so informing him informally or taking his deposition? If you want to stand on the deposition, I think you certainly have that right.” (emphasis supplied)

As can be seen from the above quoted portions of the transcript, the state attorney was under the mistaken impression that Fla.R.Crim.P. 3.220 (a)(1)(iii) only applied to oral statements or confessions made to police officers. Apparently, the trial judge agreed since he stated he was not concerned about the admissibility of the oral statement.

In its petition, the state urges that we erred in our opinion by requiring two inquiries by the trial court. The state misunderstands our opinion. The trial court only made inquiry concerning the late notification of the witness’ name. The trial court made absolutely no inquiry into the existence of the oral statement and made no finding concerning the prejudicial effect of the state’s failure to supply the oral statement to defendant prior to the trial on defendant’s ability to prepare for trial. In fact, the trial court did not even know the substance of the oral statement until Gibbons testified. Even then, the trial court made no inquiry. If the trial court had inquired into the existence of the oral statement and its prejudicial effect on the defendant at the same time it made inquiry into the late notification of the witness’ name, our opinion may well have been different: But our concern in this case is that at some point in the trial the court should have determined what effect, if any, the failure to supply defendant’s oral statement had on defendant’s ability to prepare for trial.

In that regard, it is instructive to look at another similar case decided by this court, Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977). In Lavigne, the state knew that defendant made an oral statement to police officer, Sciadini, but failed to disclose the substance of the statement in response to discovery. A few days before the trial, the state told Lavigne that Sciadini would be called as a witness and made him available so that Lavigne could interview or depose him. However, Lavigne neither interviewed nor deposed him. At the trial Sciadini was permitted to testify concerning defendant’s oral statement, the trial court overruling an objection. On appeal, this court stated:

“Where the State violates a Rule of Criminal Procedure, the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State’s noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial court to make a full inquiry requires reversal of a conviction. Richardson v. State, supra; Cumbie v. State, 345 So.2d 1061 (Fla.1977), opinion filed 17 March 1977.
“The State did not furnish Lavigne with the substance of the oral statement made by him nor did it inform him that Officer Sciadini was a witness to the statement. This was a violation of Fla.R.Crim.P. 3.220(a)(1)(iii). Nevertheless, the trial court failed to make a full inquiry into all the circumstances surrounding the breach and failed to determine whether Lavigne was prejudiced.
“The State argues that it informed Lavigne that Sciadini would be a witness at the trial, that the State made Sciadini available for interview or deposition, that Lavigne did not move for a continuance, that Lavigne does not claim prejudice and that the trial court’s inquiry was sufficient. None of these arguments has merit. Lavigne had no reason to interview or take Sciadini’s deposition because he had not been informed by the State as required by a rule of criminal procedure that Sciadini was a witness to an oral statement made by him. There is no requirement that Lavigne ask for a continuance because the State violated a rule of criminal procedure. The law does not require that a defendant claim prejudice; the law requires that the State prove there is no prejudice to the defendant. The trial court did not make the inquiry required by Richardson v. State, supra. This was error.” (349 So.2d at pages 179 and 180) (emphasis supplied)

The state further urges that since Gibbons testified in his deposition to a much more incriminating statement made by defendant that obviously defendant was not prejudiced the next day of the trial when Gibbons testified to a less damaging statement. The state has completely missed the point. The state had the burden of showing the trial court that there was no prejudice. The state completely failed to make that showing in the trial court and now for the first time on appeal argues non-prejudice. Without commenting on the propriety of the state’s attempt to bring Gibbons deposition to the attention of this court, we simply note that it does not matter to the holding of this case what oral statement Gibbons testified to on deposition. Whatever oral statement he testified to, the trial court should have made some inquiry into the state’s failure to notify defendant of the existence of the statement and what effect it had on defendant’s ability to prepare for trial.

The state simply assumes that the opportunity to depose cures its failure to comply with the discovery rule. If that were true, all the state must do in the future is fail to list witnesses, statements, etc., and then in the middle of the trial announce to defendant that a key witness will be testifying to some sort of oral statement or confession: When the defendant then complains, the state will simply make the witness available for deposition and after the witness is deposed, he may testify. Such is not the law.

As recited in our above opinion the state relies on Cooper v. State, 336 So.2d 1133 (Fla.1976). In Cooper, five days prior to triál, the state provided defense counsel with a list of witnesses and informed him of the existence of a tape recording. Defense counsel moved for a continuance so that he could conduct discovery, which motion was denied with leave to ask for reconsideration should any relevant new matters be uncovered. Another motion was made which was denied again. At the hearings on both motions it was uncontroverted that the state attorney gave defense counsel the witnesses’ names soon after he learned of them, and that the information known to all but one of them was identical to that known by other previously identified witnesses. Only one of the witnesses testified at the trial and he only testified for a few minutes. As to that alleged trial error the Supreme Court stated:

“As the trial date nears, a prosecutor has the duty under Rule 3.220(f) to ‘promptly disclose’ previously unidentified witnesses and material. A delay of days might be sufficiently prompt where several months remain before trial, but where a complex trial involving a human’s life was scheduled to begin in one week, immediate disclosure is dictated by the Rule. Nonetheless, failure to obey the Rule should be remedied in a manner consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices. Here the trial judge properly denied the initial request to postpone the trial on the ground that any prejudice could be best assayed after defense counsel had an opportunity to depose the witnesses. By directing the state’s attorney to act speedily in making these witnesses available, the trial judge did all that was reasonably required at that time. When he later reconsidered the motion, the witnesses’ testimony was found to be cumulative and non-prejudicial. The only hardship then shown by the defense was the failure to have listened to all of the tape, causing an increased burden on defense counsel during the week of the trial. The trial judge concluded that there was no prejudice to Cooper’s defense, and that the increased workload was in part the result of a tactical decision by the defense rather than the state’s breach of the rules.” (336 So.2d at page 1137 and 1138) (emphasis supplied)

A second violation of Rule 3.220(f) occurred in Cooper when the state announced a ballistics expert had been inadvertently left off the list of witnesses and in regard to that alleged error the Supreme Court stated:

“ * * * In accordance with our holding in Richardson v. State, 246 So.2d 771 (Fla.1971), the trial judge held a lengthy hearing to determine whether the defense had been unfairly surprised. He ascertained that there was no surprise. The defense had learned that a ballistics test was being performed as early as February 1974, in the course of deposing a witness. During March 1974, defense counsel’s investigator spoke to the state’s expert and requested that a copy of any ballistics report be sent to defense counsel. The investigator customarily placed memoranda summarizing his activities in counsel’s case file, and there was no showing that this did not occur in this instance. For this reason, defense counsel should at least have been aware that a request for any ballistics report had been made and that the investigator had been in contact with this particular expert. Additionally, the state attorney informed the defense one month before trial that the gun which had been in Ellis’ possession when he was apprehended and fatally shot was not the same gun which had fired the fatal shots at Deputy Wilkerson. This fact was the substance of the expert’s testimony at trial. It must have been obvious to defense counsel that a ballistics report had been received by the state, and that the state was going to attempt to prove that Cooper himself fired the fatal shots, rather than relying solely upon a felony-murder theory.
“Once again the state may have violated a Rule. But when that fact was discovered, the trial judge properly denied the request to exclude the witness or to recess the trial to enable defense counsel to obtain a ballistics expert of his own. Seeking a less drastic remedy, he recessed the court to allow the defense counsel to depose the expert before he was called to the stand. Since the defense should have been aware of the state’s proposed proof by reason of information already known to it, the trial judge acted within the scope of his discretion to remedy whatever prejudice might have resulted from the state’s breach.” (336 So.2d at pages 1138 and 1139) (emphasis supplied)

As can be seen from the quoted portions of the decision, Cooper is distinguishable from this case. Here, there was no lengthy hearing to determine whether defendant had been unfairly surprised by the announcement that Gibbons was going to testify to an oral statement made by him. The trial court merely found that the name, Gibbons, should come as no surprise to defendant. The trial court admitted it was not concerned with the oral statement which Gibbons was going to testify to. Further, there is no finding that Gibbons’ testimony was cumulative and non-prejudicial: There simply is no showing at all.

Finally, in its petition, the state asks us to review the record and determine that there was no prejudice to defendant and that therefore the failure to comply with the discovery rule was harmless; urging that we erred because we did not do so. However, since the trial court did not make the full inquiry required by Richardson, this court cannot now review the cold record and determine that the error was harmless. Cumbie v. State, 345 So.2d 1061 (Fla.1977). In Cumbie, the latest pronouncement of the Supreme Court concerning a violation of Rule 3.220(a)(1)(iii), the court stated:

“The trial court erred in admitting into evidence the testimony concerning the alleged statement of the petitioner without conducting an inquiry into the question of prejudice, and this error is reversible as a matter of law. * * *” (345 So.2d 1062) (emphasis supplied)

As we said in Lavigne v. State, supra:

“The effect of the opinion [Cumbie] is to explicitly declare the harmless error statute * * * and doctrine * * * inapplicable, as a matter of law, to situations wherein a trial judge permits evidence from a witness whose name was not revealed by the State to a defendant who has made demand for discovery in accordance with the Rules of Criminal Procedure, without the trial court conducting an inquiry into the question of prejudice, whether or not the defendant, on appeal, claims to have been prejudiced." (349 So.2d at page 180) (emphasis supplied)

The state’s reliance on Leeman v. State, supra, is misplaced. As the defendant noted in his response to the petition for rehearing, nothing in Leeman v. State, supra, detracts from the requirement that the trial judge make adequate inquiry into all of the circumstances surrounding a breach of the rules of discovery. The defendant there had been aware of the state’s failure to respond to an order requiring the state to furnish a bill of particulars for six months prior to trial. The defendant did not bring that dereliction on the state’s part to the attention of the court until after the state had presented its opening statement. The trial judge undertook an exhaustive inquiry into all the surrounding circumstances and determined that the defense was aware of the state’s inability to provide the required information at a much earlier time. In affirming, the Supreme Court held that when the defendant came to trial without requesting sanctions prior to that time it was an indication that the defendant was ready for trial. The court said there could be no prejudice affecting the ability of the defendant to prepare for trial if he waited until the day of trial before attempting to show prejudice. By contrast, defendant’s counsel did not know of the oral statement about which Gibbons testified until the trial began.

Accordingly, the petition for rehearing is denied.

McCORD, C. J., and MELVIN, J., concur.


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    William J. NEALE, Appellant, v. Frances E. NEALE, Appellee.
    No. 76-448.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied July 6, 1978.
    William J. Neale, in pro. per.
    No appearance for appellee.
   DOWNEY, Chief Judge.

Appellant seeks review of an order entered upon 1) a petition for modification of a final judgment of dissolution of marriage and 2) upon a motion for an order of contempt.

The appellee has not favored us with a brief to support the trial judge’s findings. However, our review of the record demonstrates to us that appellant’s contention that he was entitled to a modification of child support payments based upon a substantial reduction of income is without merit. The evidence adduced by appellee from appellant’s Deposit Registers furnishes support for the trial judge’s implicit finding that there was no substantial change in appellant’s circumstances warranting a modification.

Appellant’s second point has merit and the trial court should adjudicate the amount of the arrearage in automobile payments so that appellant will know the amount he is required to pay.

Finally, because appellant did not agree that the question of attorney’s fees could be determined upon affidavits, the trial court should hold an evidentiary hearing to determine the wife’s need and husband’s ability to pay attorney’s fees.

Accordingly, the order appealed from is affirmed in all respects except as to the amount of arrearage in automobile payments and the allowance of attorney’s fees and the cause is remanded with directions to adjudicate the amount of said arrearage and to hold an evidentiary hearing on ap-pellee’s request for attorney’s fees.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED, with directions.

MOORE, J., and RIVKIND, LEONARD, Associate Judge, concur.


author: PER CURIAM.

text:
    Joseph ROTH, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2357.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied July 7, 1978.

      Virgin, Whittle & Popper and Thomas J. Morgan, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita Esquiroz, and John C. Moppert, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J. and CRAWFORD, GRADY, L„ (Ret.) Associate Judge.
   PER CURIAM.

The appellant, defendant in the trial court, was indicted for the first degree murder of his wife, tried by jury and found guilty. He takes this appeal from a judgment of conviction and sentence to life imprisonment in the state penitentiary.

The record reflects that the defendant voluntarily took a polygraph examination based upon the advice of his attorney who was present upon the occasion. By agreement between the state attorney and defendant’s counsel, “the result of the test” would not be made known to the jury by either side: The actual agreement and the exact terms of the same are not clear, but the trial judge, after hearing the conflicting evidence concerning such agreement, denied defendant’s oral motion to suppress or exclude statements made by the defendant during the interview that preceded the examination. Neither the fact that a test occurred, nor its result, was made known to the jury.

At most, the testimony given by the witnesses gave rise to conflicts in the proof presented. The resolution of such conflict was properly for the trial judge, within whose province it was to judge the credibility of witnesses and the weight of the testimony. Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975); Reynolds v. State, 222 So.2d 246 (Fla. 3d DCA 1969). It is well recognized that the burden on the prosecution to prove the “voluntariness” of a statement or confession made by the defendant is not by proof beyond a reasonable doubt, but by a mere preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Johnson v. State, 294 So.2d 69 (Fla.1974); Johnston v. State, 257 So.2d 94 (Fla. 3d DCA 1972); State v. Harris, 276 So.2d 845 (Fla. 4th DCA 1973).

In short, the record in the instant ease sufficiently sustains the trial court’s conclusions that the statements made during the pre-test interview were admissible at the defendant’s trial. See Hostzclaw v. State, 351 So.2d 970 (Fla.1977); Burch v. State, 343 So.2d 831 (Fla.1977); People v. Mason, 29 Ill.App.3d 121, 329 N.E.2d 794, 798 (Ill.App.1975); Johnson v. State, 166 So.2d 798 (Fla. 2d DCA 1964).

A reading of the record in this case leads this court to the conclusion that the admissibility of the statements given by the defendant during the pre-test interview would not, in any event, constitute reversible error where the statements made were similar to, or the same as, other unquestioned statements previously made by the defendant to other members of his family.

The United States Supreme Court and the Florida Supreme Court both have held that the admission of a confession or an incriminating statement made by an accused can be harmless error where there is other evidence of guilt, particularly other confessions or statements made by the accused that are unchallenged or unquestioned. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Thompson v. State, 328 So.2d 1 (Fla.1976).

In essence, the defendant had previously told members of his own family the same story that he told the interviewer during the interview that preceded the polygraph examination. The statement given by the defendant then, and the statements given by the defendant to both his daughter and his son-in-law, were essentially similar in content and were basically self-serving in nature. In all of his statements the defendant denied having killed his wife. The admissibility of the defendant’s conversation with family members is unquestioned.

The defendant also challenges the correctness of the trial court’s ruling in denying his motion for judgment of acquittal. The record reveals that the trial court was correct in submitting the case to the jury for its determination. From the evidence presented, the jury could reasonably conclude that the victim was not capable of committing suicide in such a bizarre manner, and that the defendant was entirely capable of committing murder in that fashion. Clearly, there was at the least, one view which the jury could lawfully take of the evidence which could be sustained under the law, and under which they could find to the exclusion of every reasonable hypothesis that the defendant had killed his wife. Under such circumstances, the trial court was correct in submitting the case to the jury and denying the defendant’s motion for judgment of acquittal. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974); Byrd v. State, 297 So.2d 22 (Fla.1974); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

Affirmed.


author: SMITH, Acting Chief Judge.

text:
    BLUE SHIELD OF FLORIDA, INC., Appellant, v. Ollie WOODLIEF and Barbara Woodlief, Appellees.
    No. HH-180.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    Rehearing Denied July 5, 1978.
    Jeffrey A. Cramer of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellant.
    Thomas F. Condon of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for ap-pellees.
   SMITH, Acting Chief Judge.

Blue Shield appeals from a circuit court summary judgment awarding appellee Woodlief $205 plus costs and attorney’s fees on account of Blue Shield’s refusal to pay a $205 dental surgery bill incurred by Mr. Woodlief. Woodlief, whose wife is an employee of Escambia County, is insured under a group contract issued to the Escambia County Board of County Commissioners by Blue Cross of Florida, Inc. and Blue Shield of Florida, Inc. The coverage in dispute is provided by Blue Shield alone. The trial court found the insurance contract and a pamphlet describing it ambiguous in their coverage or exclusion of benefits for dental surgery and so awarded the cost of such surgery under a construction of the documents most favorable to the insured.

Mr. Woodlief’s surgery bill included the following items: (1) initial examination, $10; (2) diagnostic panelipse, $20; (3) outpatient general anesthesia, $25; (4) extraction of three teeth, $45; (5) mandibular alveoloplasty, $40; and (6) removal of palatal inflammatory hyperplasia and relining of denture, $75. The charges totaled $215. The trial judge awarded $205 in damages, apparently finding that the fee for the initial examination was not a covered expense. Blue Shield contests coverage for the services rendered, but does not allege that the charges were excessive by the standard set for surgical services in the policy’s schedule of benefits.

By affidavit, the treating dentist stated that the extractions were required because of excessive tooth decay and the removal of palatal tissue was made necessary by the growth of malformed tissue caused by ill-fitting dentures. Mr. Woodlief claimed the entire amount under the policy’s provision of benefits for doctors’ services and its recital that the insurer will pay for minor surgery, diagnostic x-rays, anesthesia, and certain other services up to amounts prescribed in a “schedule of benefits” which has not been included in the record. There follows a list of services for which benefits are not provided, including dental services.

The claimed ambiguity arises on a page of the insurer’s descriptive pamphlet which was supplied to inform members of the insured group of coverages and exclusions:

SERVICES BY A NONPARTICIPATING PHYSICIAN.
Should you receive care from one of the few licensed doctors of medicine (MD) or doctors of osteopathy (DO) who are not participating in Blue Shield, the benefits listed in this booklet and your contract will still apply but Blue Shield may elect to make payment directly to you.
Doctors of dental surgery (DDS) and doctors of surgical chiropody (DSC) are also regarded as nonparticipating physicians if they provide services covered by your contract and they are acting within the scope of their licenses.
SERVICES NOT COVERED.
The following services are not covered by your Blue Shield contract: hospital, dental or nursing services, appliances and supplies; rest cures; services primarily for diagnostic purposes; care obtained in US government hospitals; care for injuries or sickness contracted in the military forces; care obtained without cost; occupational ailments or injuries; operations for cosmetic or beautifying purposes.

The clause relating to nonparticipating physicians does not suggest that all dental services, otherwise excluded, are covered when rendered by doctors of dental surgery. That clause simply saves benefits otherwise payable for services when rendered by nonparticipating physicians. An ambiguity exists in an insurance policy only when its terms make the contract subject to different reasonable interpretations, one of coverage and one of exclusion; ambiguity is not invariably present when analysis is necessary to interpret the policy. Central Mutual Ins. Co. v. Elliott, 347 So.2d 812 (Fla. 1st DCA 1977); Continental Casualty Co. v. Borthwick, 177 So.2d 687, 690 (Fla. 1st DCA 1965). Absent ambiguity, we cannot require coverage in the face of an explicit policy exclusion. Emmco Ins. Co. v. Southern Terminal and Transp. Co., 333 So.2d 80, 82 (Fla. 1st DCA 1976).

The exclusion of benefits for dental services is, however, uncertain. The policy does not define dental services or give any indication of the intended scope of the term. Nor does it state that services otherwise compensable would be excluded if performed by a dentist. We therefore construe the term liberally in favor of the insured and strictly against the insurer within the scope of its natural, commonly understood meaning. Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975) and cases cited therein. “Dental services” in this context must be taken to mean health care services performed directly on teeth. Thus the fee for Mr. Woodlief’s extractions was not a covered expense. The other fees for the diagnosis, removal or treatment of diseased tissue and bone were covered expenses. We therefore modify the award of damages by subtracting the $45 fee for extractions, leaving an award of $160.

A complaint for declaratory judgment was used here as a device to bring a claim into circuit court when the plaintiffs’ real objective was a money judgment which did not satisfy the requisite jurisdictional amount. We decide the case to preserve the benefits of judicial labor already invested, but disapprove this misuse of the declaratory judgment procedure.

The principal amount of the judgment is reduced by $45 and, as so modified, is AFFIRMED. Appellees are awarded $350 on account of their attorney’s appellate services. Section 627.428, Florida Statutes (1977).

ERVIN and BOOTH, JJ., concur.


author: SMITH, Judge.

text:
    Robert Tony BAGOCUS, Appellant, v. STATE of Florida, Appellee.
    No. HH-277.
    District Court of Appeal of Florida, First District.
    May 22, 1978.
    Rehearing Denied July 11, 1978.
    Edwin Marger and J. Timothy Lawler, Atlanta, Ga., for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander and George R. Georgieff, Asst. At-tys. Gen., for appellee.
   SMITH, Judge.

Convicted and sentenced after a jury trial for four offenses associated with his possession of marijuana and narcotics, Bagocus urges errors including the trial court’s failure to suppress evidence taken in a search of his truck and the admission in evidence of self-incriminating statements.

Bagocus drove his pickup truck, the bed of which was covered by a camper top, past an agricultural inspection station on an interstate highway. He was pursued and stopped by two uniformed and armed agricultural inspection officers in an official vehicle with a flashing light. According to the testimony of the officers and Bagocus, the officers advised Bagocus that he had passed an agricultural inspection station and that they would like to inspect the contents of his truck. Bagocus opened the rear glass section of the camper top, revealing objects covered by a canvas; the officers then requested that Bagocus open the tail gate, which he did. One of the officers climbed into the truck and found several bags which were taped closed. The officers directed Bagocus to return to the inspection station and, on the way, he twice stopped and pleaded with the officers to “work something out.” At the officers’ request, Bagocus again admitted them to the rear of the truck at the inspection station, and they found bags containing vegetable matter which they believed to be marijuana. Ba-gocus was arrested by a deputy sheriff who, after advising Bagocus of his Miranda rights, took incriminating statements.

Nothing in this record impeaches the trial court’s finding that the searches on the highway and at the station were conducted with Bagocus’ consent. When Bagocus passed the inspection station in a pickup truck capable of transporting agricultural products that were subject to inspection, the officers were entitled to stop the truck. They were further entitled to request Bagocus to permit the inspection. Bagocus complied. We decline to extend the holdings in Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975) and Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976) to hold as a matter of law that uniformed agricultural inspection officers, carrying weapons they did not brandish in any way, have overborne the will of a lawfully stopped driver by simply asking him to permit an inspection.

Bagocus was suitably warned, upon his arrest, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There was no error in admitting in evidence his incriminating statements. We find no merit in Bagocus’ point that the state was permitted to use evidence of those statements at trial without having given appropriate notice, and the appeal is otherwise without merit.

AFFIRMED.

BOYER, Acting C. J., and BLACK, SUSAN, Associate Judge, concur.


text:
    FLORIDA BANKERS ASSOCIATION, and Florida National Bank at Lakeland, Petitioners, v. LEON COUNTY TEACHERS CREDIT UNION, Pinellas County Teachers Credit Union, Duval County Teachers Credit Union, Publix Employees Credit Union, Florida Credit Union League, Inc., and Karen G. Gerrell, Cross-Petitioners, v. DEPARTMENT OF BANKING AND FINANCE, DIVISION OF BANKING, Respondent.
    No. HH-333.
    District Court of Appeal of Florida, First District.
    May 22, 1978.
    Rehearing Denied July 11, 1978.

      J. Thomas Cardwell, Nicholas Yonclas and Michael P. McMahon of Akerman, Sen-terfitt & Eidson, Orlando, for petitioners.
    F. Perry Odom and Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Charles P. Seibold of Bell, Blake & Metzner, and Ralph S. Swoboda, Madison, Wis., for cross-petitioners.
    S.Craig Kiser, Tallahassee, for respondent.
   SMITH, Judge.

Florida Bankers Association and Florida National Bank at Lakeland, as petitioners, and Leon County Teachers Credit Union, Pinellas County Teachers Credit Union, Duval County Teachers Credit Union, Publix Employees Credit Union, Florida Credit Union League, and an individual member of the Leon County Teachers Credit Union, as cross-petitioners, complain on divergent grounds of an order of the Department of Banking and Finance, entered in formal proceedings pursuant to Section 120.57(1), Florida Statutes (1977). At issue is the lawfulness of “share drafts” by credit union members to effect withdrawals from their credit union accounts. The administrative proceedings were initiated by the four credit unions’ petition for a formal hearing under Department rules, following notice from the Department, on November 1,1976, to discontinue their' practice of honoring members’ drafts effecting remote withdrawal of their deposits. The Department referred the petition to the Division of Administrative Hearings, Department of Administration, which permitted the commercial banks as intervenors to oppose the credit unions’ claim for relief. After a hearing, the hearing officer filed a recommended order containing appropriate findings of fact and conclusions of law, and recommending that the Department sustain the position of the credit unions. The Comptroller, head of the Department, then entered the order which was brought here for review by both the credit unions and the commercial banks. Section 120.68, Florida Statutes (1977).

The Department’s order found as a matter of law that credit unions organized and existing under Chapter 657, Florida Statutes (1977), are prohibited by statute from honoring member withdrawal of deposits by drafts placed by payees in the banking collection system. But the Department, by the same order, authorized the four particular credit unions before us, upon appropriate reformation of their bylaws, “to continue their share draft programs as they presently exist as an extension of the experimental status earlier granted.” The effect of the order is to permit four credit unions to continue for an indeterminate period the method of operation which the Department conceives is unlawful, and which the credit unions here insist is lawfully incident to their authorized business, absent statutes or Department rules more closely restricting their activities. The commercial banks urge that the Department was correct in holding that statutes forbid credit union share drafting generally, but incorrect in permitting a continuing and temporary but indeterminate violation of the statutes as so interpreted by the Department.

A credit union is a cooperative society organized under supervision of the Department “for the twofold purpose of promoting thrift among its members and creating a source of credit for them at legitimate rates of interest for provident purposes.” Section 657.01(1). Section 657.04 explicitly grants certain powers to a duly organized credit union, including power:

(1) To receive the savings of its members either as payment on shares or as deposits .
(8) To exercise such incidental powers as shall be deemed necessary or requisite to carry on effectively the business for which it is incorporated, pursuant to rules of the department.

Section 659.52(1) of the Florida Banking Code provides that no person other than a bank as defined by that chapter shall “[s]olicit or receive deposits, issue certificates of deposit, with or without provision for interest, make payments on checks, ... or transact business in the way or manner of a commercial bank or trust company . . .” Yet Section 659.52 also provides:

(2) This subsection shall in nowise restrict or impair any right, authority or power granted savings banks, Morris plan or industrial banks or credit unions organized and operated under the laws of the state.

Chapter 657 and the Department’s rules are entirely silent on the question of how credit union members may withdraw their deposited funds. The statutes and rules neither authorize nor prohibit particular methods of withdrawal. The four credit unions before us honor their members’ share drafts in the manner described in the recommended order of hearing officer Bentley:

A share draft is payable through a bank and is similar to other forms of payable-through drafts drawn against other non-bank institutions such as money order companies and insurance companies. A member of one of the four Petitioner credit unions who desires to use share drafts must first establish a separate share or deposit account with the credit union. The member contracts with the credit union for participation in the program. All share drafts are paid out of that account. The member receives a book of drafts with the member’s name preprinted on each draft. To the layman these drafts look like checks. However, they are not checks. A share draft can be made payable to cash or any payee in any amount, provided the draft does not exceed the available balance in the member’s share draft account. A share draft may be presented directly to the credit union by a member to withdraw cash from the member’s share draft account, or, a payee who has received a share draft from a member may bring it to the credit union for payment from the member’s share draft account. Ordinarily, however, a payee who has received a share draft from a member will deposit the draft in the payee’s own bank account. The draft will then be delivered to the credit union’s payable through bank through the normal bank clearing channels used also for checks. The information on the draft is extracted by the payable through bank and converted either to an electronic medium or some other form of communication medium which is then used to deliver a request to the credit union for payment of the draft.

The hearing officer found that the power to permit withdrawals is among those “incidental powers” which are reserved to credit unions by Section 657.04(8):

The better interpretation of [Section 657.-04(8)] is that credit unions are given the right to exercise such incidental powers, but that exercise may be subjected to regulation by the department . The department has allowed credit unions to grant withdrawals and to establish many different methods of withdrawal without requiring, and without adopting, any administrative rules on the subject. Thus, absent regulation by the department, credit unions have the power to adopt those methods of withdrawal deemed necessary or requisite to carry on effectively the business for which they are incorporated. The department has no administrative rules pertaining to the methods by which credit unions may allow withdrawals. Therefore, the choice of methods has been left to the credit unions.
. A share draft as utilized by Petitioner credit unions is not a check. While the share draft programs engaged in by the Petitioner credit unions have essentially the same practical effect as the checking account system engaged in by commercial banks, this similarity of effect cannot override the legal distinction in the two programs. In legal effect a share draft is nothing more than another method of withdrawal of savings from a credit union by a member, albeit a sophisticated method and one which, by its very sophistication, is new to the credit union industry.

The recommended order concludes:

Until such time as the Department of Banking and Finance, in the exercise of its regulatory authority, properly determines by rule that share draft programs are not deemed necessary or requisite to carry on effectively the business for which credit unions are incorporated, the share draft programs of the Petitioner credit unions are allowed by law .

The Department’s final order discussed pro and con the history and policy of permitting credit unions to honor members’ withdrawals by means of drafts similar in form and effect to checks written on commercial banks. The Department acknowledged that the ability to permit withdrawals is one of a credit union’s necessary powers and that “there are no departmental rules which either permit withdrawals or restrict such activity in any way.” But, disagreeing with the hearing officer, the Department found that Section 657.04(8) does not allow credit unions to exercise an incidental power except “pursuant to rules of the department,” and stated:

The absence of rules on withdrawals should . . more properly be interpreted to prohibit any form of withdrawals, other than those well established by tradition and in common usage prior to 1975, unless “pursuant” to rules of the department.
For purposes of maintaining administrative and regulatory control, this department cannot abide by a policy which requires prohibitive rulemaking to restrain a credit union’s action. An agency forced to adopt prohibitive or restrictive rules after the fact will soon find itself at least one step behind the industry it regulates. .

The Department’s final order commented ambiguously on the hearing officer’s conclusion that credit unions are free, under existing statutes and rules, to permit withdrawals in any way necessary and incidental to their business:

This conclusion cannot be totally accepted. The power or authority must be “granted” to the credit unions and absent such a specific grant, at least pursuant to a credit union’s incidental powers, it is unlikely that any person or institution can offer those services traditionally thought of as the business of banking. [Emphasis added.]

The Department’s final order thus seems to serve notice on credit unions throughout the state that share drafts are prohibited, but the order permits these four credit unions to continue share draft programs as an indeterminate experiment, which the Department states will provide information “on which the 1978 Legislature may base its evaluation of the program.” The record shows that the Department expected similar action on the issue from the 1977 Legislature. None was forthcoming.

We agree with the hearing officer that nothing in Chapter 657 or in Section 659.52 requires credit unions to employ particular methods of permitting withdrawals from members’ accounts, and that nothing in those statutes forbids share drafts of the character described in this record. If Department rules were necessary to permit particular withdrawal methods, as suggested by the Department, it would seem to follow that no withdrawals are permitted. There are no rules, either permissive or restrictive. We do not agree with the Department’s view that Section 657.04(8) prohibits a credit union from employing a particular method as necessary and requisite to pay out members’ deposits unless specifically authorized by a Department rule or a statute. The statute contains no such broad proscriptive purpose, nor any intent to preserve practices “well established by tradition and in common usage prior to 1975.” We conclude, therefore, that credit unions which are not forbidden to do so by their own bylaws may lawfully honor their members’ drafts on funds in their share accounts.

We do not doubt that the policy questions on this issue are complex, that the issue is one of importance to both credit unions and commercial banks, and that a policy decision is necessary and desirable. The Department’s order before us does not make the policy choice. It is beyond our power to make that choice for the Department. General Development Corp. v. Division of State Planning, Dep’t of Administration, 353 So.2d 1199, 1210 (Fla. 1st DCA 1977). It seems perfectly clear that rule-making is the proper method of uniform policymaking in this matter of state-wide concern. We are nor persuaded that the Department will be embarrassed by the need to anticipate and proscribe undesirable practices which do not yet exist. To the extent that Chapters 657 and 659 reflect a purpose to confine commercial banks and credit unions to distinct financial roles, the Department may by rules define appropriate practices for credit unions and prohibit all others. Section 120.52(14), Florida Statutes (1977); McDonald v. Dep’t of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Florida Home Builders Ass’n v. Division of Labor, Bureau of Apprenticeship, Florida Dep’t of Commerce, 355 So.2d 1245, 1247 (Fla. 1st DCA 1978), and cases there cited.

Insofar as the Department’s order directed two of the party credit unions to “amend their respective bylaws to clearly allow for the method of payment used by each credit union to reimburse the payable-through banks for disbursements made on share drafts,” the order is AFFIRMED. The order is otherwise VACATED.

BOYER, Acting C. J., and BLACK, SUSAN, Associate Judge, concur.


text:
    Arleen S. RICE, as Personal Representative of the Estate of Brian Rice, Deceased, Appellant, v. Henry WALKER and Peggy Jean Walker, d/b/a Hobby World, and Jay Greene and Rochelle Greene, d/b/a Models, Appellees.
    No. 77-869.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 7, 1978.
    James B. Denman & Associates, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant filed a wrongful death action against the above-named appellees and others. By two orders the amended complaint was dismissed with prejudice as to the above-named appellee-defendants. The plaintiff has appealed from those orders and an order denying plaintiff’s motion for rehearing.

The plaintiff’s decedent was killed by electrocution. That unfortunate circumstance resulted when a gas-powered model airplane with steel control wire, while being operated by him, came into contact with an overhead electric power line. The appellees were retailers who sold components of the equipment to a friend of the user. In seeking recovery from the retailers, the plaintiff alleged the products or components thereof were defective in manufacture. See West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976). Without pointing out such defects, plaintiff alleged they constituted dangerous instrumentalities in that they were not so constructed as to prevent or guard against electrocution of the user. It was alleged the items when sold by appellees were in the sealed cartons in which they were received from the manufacturers, and it was alleged the purchased articles were unchanged. The trial court found the allegations were insufficient to state a cause of action against the appellees. That ruling was not error, in view of the decision of this court in Royal v. Black & Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1968). See West v. Caterpillar Tractor Company, Inc., supra, 336 So.2d 80, 87 (Fla.1976).

Royal was a wrongful death action. In that case the plaintiff’s decedent was killed by electrocution when he plugged an electrical power tool into the socket of a live electric extension cord. In affirming an order of dismissal, this court said:

“In the case at bar, the plaintiff has failed to allege any facts from which reasonable.men might conclude that the plug was unreasonably dangerous or defective. No allegations of any latent characteristics are made or of any deviation from the norm, either in comparison with similar plugs or in comparison with those customarily used for similar purposes. There are similarly no allegations that the plug did not meet the standards of the industry or that its design contained a latent functional defect.’’

Similarly here, while the plaintiff alleged various components including the hand-held control unit or mechanism were unsafe, the facts constituting such defects were not stated nor did the plaintiff allege facts showing how, as made, any such components were defective or dangerous to the user, or how they reasonably could or should have been made safe. In the absence thereof, the case of Royal is controlling. In argument of the appeal before this court reference was made to features of the components, including the grip or control mechanism, as having been constructed in a manner which subjected the user to dangers in certain respects, but those facts were not included in the complaint.

If plaintiff has knowledge of facts as to a dangerous condition of such items, allegation of the presence of which was held in Royal to be essential in such a case, it would serve the best interests of justice for the plaintiff to be allowed to further amend by adding such allegations to the complaint as now amended.

The judgment of dismissal as to these defendants is affirmed, but the dismissal is to be without prejudice, and the cause is remanded with direction to enter an order granting leave to the plaintiff to further amend within a time to be fixed by the court.


author: HUBBART, Judge.

text:
    Hilda Yolanda ALMENGOR, as mother and next friend of Jessica Patricia Avila, Appellant, v. DADE COUNTY d/b/a Jackson Memorial Hospital, Appellee.
    No. 77-924.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 7, 1978.

      Stanley M. Rosenblatt, Greene & Cooper, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

The plaintiff Hilda Yolanda Almengor, as mother and next friend of her minor daughter, Jessica Patricia Avila, appeals a final summary judgment which was entered by the Circuit Court for the Eleventh Judicial Circuit of Florida in favor of the defendant Dade County d/b/a Jackson Memorial Hospital in a medical malpractice action on the ground that said action was barred by the then applicable four year statute of limitations. § 95.11(4) Fla.Stat. (1969). The plaintiff contends that the summary judgment was improperly entered because genuine issues of material fact exist as to whether the plaintiff was put on notice of an invasion of her legal rights more than four years prior to filing of the action herein. We agree and reverse.

It is the established law of this state that the statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. This occurs when the plaintiff has notice of either (1) the negligent act giving rise to the cause of action, or (2) the existence of any injury which is the consequence of the negligent act, although the injury be slight and not involve all the damages later sustained. In this connection, the plaintiff is on notice as to the contents of relevant hospital and medical records which are available to or obtainable by the plaintiff pertaining to his treatment. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958); Nardone v. Reynolds, 538 F.2d 1131 (5th Cir. 1976).

The plaintiff is not on notice, however, as to either the negligent act or the injury caused thereby where he has no actual knowledge of either fact because (1) the medical defendant or his employee, servant or agent actively engages in concealment against the plaintiff so as to prevent inquiry or elude investigation or mislead the plaintiff relating to the existence of the cause of action, or (2) the medical defendant-physician or the medical defendant through his employee/servant/agent-physician fails to reveal to the plaintiff facts [as distinguished from mere possibilities or conjecture] known to, or available to such physician by efficient diagnosis, relating to the nature and/or cause of the plaintiff’s adverse physical condition. The statute of limitations is tolled upon the happening of either of the above two events. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958); Nardone v. Reynolds, 538 F.2d 1131 (5th Cir. 1976).

The plaintiff herein has filed a medical malpractice action against the defendant hospital on the ground that her baby daughter was negligently delivered at birth and thereafter negligently cared for by the agents, servants, and employees of the defendant hospital as a result of which the baby has suffered severe brain damage. Our review of the record reveals a genuine issue .of material fact as to whether the plaintiff was placed on notice more than four years prior to the filing of the action that her baby daughter was injured during birth. There is some evidence in the record that during this time the plaintiff was aware or should have been aware that the baby was born mentally retarded and thereafter showed signs of mental retardation and abnormal development. We do not believe, however, that this evidence put the plaintiff on notice as a matter of law that the baby was injured during birth because such evidence just as reasonably could have meant that the baby had been born with a congenital defect without any birth trauma. See Salvaggio v. Austin, 336 So.2d 1282 (Fla.2d DCA 1976).

In addition, there is also some indication in the record that a nurse as an employee of the defendant hospital actively and successfully misled the plaintiff as to the baby’s true physical condition. The nurse allegedly told the plaintiff that the baby would be only slightly retarded and that the plaintiff should not worry about it. It is our conclusion that this evidence raises a genuine issue of material fact as to whether an employee of the defendant hospital engaged in active concealment of the true condition of the plaintiff’s baby which thereby kept the plaintiff in ignorance thereof. If true, such active and successful concealment would toll the running of the statute of limitations.

We are also persuaded that there is a genuine issue of material fact as to whether the doctors as employees of the defendant hospital who delivered the plaintiff’s baby actually knew, or should have known through efficient diagnosis, of a physical injury to the baby inflicted during birth but failed to so inform the plaintiff which thereby kept the plaintiff in ignorance thereof. If true, such non-disclosure resulting in successful concealment would also toll the running of the statute of limitations.

The summary final judgment^entered in this cause is reversed and the cause remanded for further proceedings.


author: ERVIN, Judge.

text:
    Marsha TEXTON, Petitioner, v. Frank M. HANCOCK, John Daniels, William Cotton, Clyde Middleton, Sr., Dudley Sargent, Annie Lee Keyes and Melba Ilgen, as and constituting the Board of Trustees of the St. Johns River Junior College, Palatka, Florida, Respondents.
    No. FF-120.
    District Court of Appeal of Florida, First District.
    June 2, 1978.
    Rehearing Denied July 6, 1978.

      Angus W. Harriett of Harriett & Sproull, Palatka, for petitioner.
    Jackson Bryan, Palatka, for respondents.
   ERVIN, Judge.

Marsha Texton seeks review of an order of the Department of Education which sustained the action of the Board of Trustees of St. John’s River College discharging her as a teacher from that institution.

Ms. Texton, a tenured ' instructor, had taught psychology at St. John’s for nine years and served satisfactorily with only a single previous administrative complaint concerning excessive use of audio-visual equipment. Then in 1974, certain students complained to the administration concerning alleged acts of misconduct by Ms. Tex-ton. After consulting the students, the college president advised Ms. Texton he was recommending her discharge to the Board of Trustees. The Board, after public hearing, made findings of fact and adopted the administration’s recommendation that she be discharged. Ms. Texton was found guilty of immorality, misconduct in office and willful neglect of duty. The evidence supporting the findings reflected that she had discussed the personal problems and grades of students with other members of the class; advised her students to overrule another teacher; used profanity in the presence of a student; made general statements about the opposite sex — that all men at one time in their lives ran around on their wives and that all men are inadequate.

During the hearing, one student, a nurse and a mother, testified Ms. Texton embarrassed her in front of the class by criticizing her child rearing habits. Another felt she used the words “penis”, “ejaculation” and “masturbation” too often in a lecture, even though the statements were made in a child psychology and human development class. Additional '-findings reflected Ms. Texton requested that a student have an affair with her ex-husband; that she gave a class party and was seen there drinking a beer; that she visited the home of a student after midnight, bringing along her husband and two other men and carrying beer; that she “passed out” in the student’s living room after drinking beer.

Section 231.36(6), Florida Statutes (1975), sets out specific grounds justifying discharge of a tenured teacher. These grounds include immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. The specific charges which Ms. Tex-ton was found guilty were immorality, misconduct in office and willful neglect of duty. While the record is replete with numerous indiscretions by Ms. Texton, it is clear, after reviewing other cases involving teacher discharge, the evidence simply did not support the findings entered.

In Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748 (1943), a school principal appealed a dismissal based upon findings that he had used intoxicating liquors, both during school hours and at other times, that he had attempted seduction of a school girl, and that he had sold illegal bolita tickets at a drugstore in which he had an ownership interest. The Supreme Court reviewed in detail the evidence on each of the charges brought and found no substantial evidence to support any of them. After determining that none of the charges was supported by the evidence, the court concluded:

The general rule is that administrative findings, in order to be upheld by the courts, must be supported by substantial evidence. This means that there must be evidence which supports a substantial basis of fact from which the fact in issue can be reasonably inferred. It must do more than create a suspicion of the fact to be established, and must be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Id. at 753.

The problem with the great bulk of the evidence here is that it was simply not of such relevant character as a reasonable mind would accept as adequate to support the conclusions reached. Clearly if the evidence supports a finding that a teacher was guilty of certain criminal acts, no doubt it would justify dismissal under Section 231.36. Ford v. Bay County School Board, 253 So.2d 728 (Fla. 1st DCA 1971). (Teacher charged with possession of gambling paraphernalia.) Additionally this court has held that if a school teacher is responsible for teaching students in their formative years and commits acts of immorality after school hours, such acts may be indirectly related to misconduct in office. Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975). (Teacher performed cunnilingus on step-daughter.)

Obviously acts performed by a tenured school teacher in a given situation may justify discharge, whereas in another situation they may not. Here Ms. Texton’s conduct must be judged in the context of her more liberal, open, robust college surroundings. She is not teaching children of tender years in an elementary school. Her acts have little or no connection whatsoever with morality, misconduct in office or willful neglect — particularly when considering that the complainants were junior college students, many of them older and working full-time, attending classes part-time or at night.

While school administrators have the right to promote efficiency in an environment favorable to learning, and to investigate the competence and fitness of those whom they hire to teach, Pasco County School Bd. v. Fla. Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), still Ms. Texton, as a tenured teacher, had acquired a valuable property right in her expectation of continued employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Certainly her rights as an instructor under continuing contract should be no less protected than those of non-tenured teachers whose contracts may not be arbitrarily non-renewed because they have exercised First and Fourteenth Amendment rights. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). As a citizen and as a teacher she is entitled to certain freedoms: to associate freely, to speak openly, to encourage response and free inter-play in the classrooms. She may not be penalized because she has exercised her First Amendment rights in a manner offensive to more delicate sensitivities.

The order of discharge is REVERSED.

SMITH, Acting C. J, and MELVIN, J., concur.

      . Two seemingly inconsistent statements.

      . There was one finding of more serious conduct, that Ms. Texton had tried to intimidate witnesses from testifying against her. This finding, however, had no predicate in the charges filed against her. Such a finding, in the absence of notice, may not be a lawful basis for discharge.


author: PER CURIAM. BOYER, Judge,

text:
    Vernon K. LaFOUNTAIN, Appellant, v. Willie M. LaFOUNTAIN, Appellee.
    No. HH-23.
    District Court of Appeal of Florida, First District.
    June 6, 1978.
    Rehearing Denied July 11, 1978.
    Walter J. Smith of Smith, Grimsley, Barron & Remington, Fort Walton, for appellant.
    J. LaDon Dewrell of Dewrell & Jennings, Fort Walton Beach, for appellee.
   PER CURIAM.

We have considered the record, briefs, and oral argument of counsel and finding no error, the final judgment of the trial court is AFFIRMED.

McCORD, C. J., and SMITH, J., concur.

BOYER, J., concurs in part and dissents in part.

BOYER, Judge,

concurring in part and dissenting in part.

We are here again called upon to determine the propriety of an award of permanent alimony in a final judgment of dissolution of marriage. The evidence adduced in the trial court was lengthy and contradictory. It is clear, however, that the marriage was two months shy of five years; that it was the second marriage for the husband and the third for the wife; that no children were born as a result of that marriage; that the wife was employed in a supervisory position prior to the marriage and worked in the husband’s business throughout the marriage and that although she had suffered a severe weight loss and stomach disorder during the separation preceding the dissolution her physician testified that while she would not be able to be employed for approximately two months following the dissolution, she could “probably” return to employment after her weight had stabilized and treatment for a recently discovered diabetic condition could be established.

The trial judge made an equitable division of the assets of the parties and, in addition, ordered the husband, appellant, to pay to the wife permanent periodic alimony in the amount of $500.00 per month plus rehabilitative alimony in the amount of $500.00 per month for one year. He also required the husband to pay the wife’s attorney’s fees and costs incident to the dissolution proceeding.

The purpose of, and difference between, permanent and rehabilitative alimony has been often discussed by this and other courts and no useful purpose will be served by repetition here. In my view, however, the principles announced in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976) are controlling here. We should accordingly hold, as we did there, that the facts of this case do not justify an award of permanent alimony. I have not overlooked our holding in Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974), that permanent does not necessarily mean forever, nor our holding in Manning v. Manning, 353 So.2d 103 (Fla. 1st DCA 1977) that rehabilitative does not necessarily mean temporary. However, as we pointed out in Cann v. Cann, supra, a significant distinction between rehabilitative alimony and permanent alimony relates to the manner by which it' may be terminated. Rehabilitative alimony automatically terminates by expiration of the period fixed in the final judgment or by such subsequent order as may modify the period, whereas permanent alimony may be terminated only upon proof of a substantial change in circumstances.

Although I would hold that the facts of this case do not warrant an award of permanent alimony I would not, on the state of the record before us, determine either the amount or period of rehabilitative alimony, but would instead remand to the trial court for that determination.

Nor does the record sustain, in my view, an award of attorney’s fees for the wife’s attorneys. (See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977) and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

In all other respects I concur in affirmance.

I would also deny the wife’s application for attorney’s fees incident to this appeal.


author:
PER CURIAM.
      HUBBART, Judge

text:
    Jacob Daniel SANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-126.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 7, 1978.
    Engel, Aronson, Fried & Cohn and David B. Javits, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

      . On this feature the officer’s testimony was as follows:
      “It was at this time that Mr. Sanders told me that he could remember that when his wife was running down the hallway with the weapon in her right hand that he grabbed her wrist with his left hand and moved the weapon away, at which point he came up with the gun, stuck it behind her ear and fired the shot.”

   PER CURIAM.

Appellant, Jacob Daniel Sanders, appeals his conviction of manslaughter. By information he was charged in one count with possession of a controlled substance (cannabis) in an amount greater than five grams, and in a second count was charged with second degree murder in the killing of Johnnie Mae Sanders (his wife) by shooting her with a gun. The charge of possession of the controlled substance was nolle prossed. The appellant-defendant was tried before a jury on the second degree murder charge and was found guilty of the lesser degree crime of manslaughter. On consideration of the record, briefs and argument we hold no reversible error has been shown.

Following arrest, the defendant made three statements to police officers, which he moved to suppress. The first statement was suppressed. The motion was denied as to the second and third statements, and they were revealed in testimony presented by the State at the trial. We hold to be without merit the contention of the appellant that the court committed error in denying the motion to suppress. While the evidence on the motion to suppress was conflicting there was substantial competent evidence to support the holding that the said statements of the defendant to the police officers were freely and voluntarily made. McDole v. State, 283 So.2d 553 (Fla.1973); Graham v. State, 295 So.2d 694 (Fla. 3d DCA 1974); Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976).

The defendant testified, as the sole witness for the defense. The issue presented on behalf of the defendant was self-defense. The rejection thereof by the jury is supported by the evidence.

In brief it was brought out in the evidence that when the defendant returned to his home in the early hours of a morning he was berated by his wife, who threatened to kill him, and ordered him to leave. She telephoned the police and spoke to an officer. The defendant also talked to the police, and then ripped out the wire to which the telephone was attached. During this time his wife had been in possession of a hand gun. After the telephone incident, the defendant reached under a mattress and obtained his gun, a 357 caliber magnum pistol, with which he subsequently shot and killed his wife.

Defendant’s statements to the police officers were conflicting. At first he stated he had shot his wife from several feet away while she had a gun pointed at him. The medical examiner determined the victim was killed by a contact shot made to the left side of her head, and that the trajectory path had been upward. When so informed, the defendant then stated to the police that just prior to the shooting his wife had been running down the hall in his direction holding a gun in her hand; that he grabbed the hand in which she held the gun (which would be with his left hand since he was holding his gun in his right hand) and pushed her hand away; that he then raised his gun and shot her.

Despite the presence of conflicting evidence, the presence of the evidence just referred to was such that the jury properly could reject the defendant’s claim of self-defense. If as stated by the defendant his wife ran down the hall toward him threatening him with a gun, he placed himself out of imminent danger when he was able to grab her hand which held the gun and push it away. On that evidence the jury was entitled to conclude the doctrine of self-defense did not justify the defendant in raising his own gun, placing it against the woman’s head and firing it. State v. Coles, 91 So.2d 200 (Fla.1956); Turner v. State, 298 So.2d 559 (Fla. 3d DCA 1974); Bristow v. State, 338 So.2d 553 (Fla. 3d DCA 1976).

We hold therefor, that the appellant’s contention that the evidence was insufficient to support the conviction without merit.

Affirmed.

HUBBART, Judge

(concurring).

I concur in the court’s affirmance of the defendant’s conviction herein but on different grounds. I do not believe that the admissibility of the defendant’s statements to the police has been properly preserved for appellate review because defense counsel did not object at trial before the jury to the admission in evidence of such statements after his motion to suppress held outside the presence of the jury had been in part granted, and in part denied. In fact, defense counsel later announced that he was satisfied with the court’s ruling admitting such statements. Accordingly, it is not necessary, as the court does, to reach the merits of the defendant’s voluntariness claim on appeal. Blatch v. State, 216 So.2d 261, 264 (Fla. 3d DCA 1968).

As to the contention that the trial court should have granted defendant’s motion for a judgment of acquittal, I am in agreement that the motion was properly denied but solely on the ground that there was sufficient conflicting evidence in the record upon which the jury could properly reject the defendant’s claim of self defense. I cannot agree, however, that the defendant’s second account of the incident did not properly assert the defense of self defense. Such account was sufficient for the trial court to instruct the jury on the defense of self defense which was in fact done in this case. Harris v. State, 104 So.2d 739 (Fla. 2d DCA 1958). The jury having rejected such defense upon proper instructions and sufficient evidence, I see no basis for upsetting the ensuing conviction herein. Randolph v. State, 290 So.2d 69 (Fla. 3d DCA 1974); Arnold v. State, 241 So.2d 192 (Fla. 3d DCA 1970). See also Hedges v. State, 165 So.2d 213, 215 (Fla. 2d DCA 1964).


text:
    Michael Glenn WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-394.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 7, 1978.
    Max P. Engel and Don Cohen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

The defendant Michael Glenn Wilson appeals from a conviction and sentence for burglary while armed, shooting into an occupied dwelling, aggravated assault, and battery, entered after a jury trial in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant contends on appeal that the trial court erred in denying the defendant’s motion of judgment of acquittal on all charges made at the close of the state’s case and renewed at the close of all the evidence; and that the trial court erred in denying the defendant’s motion for a mistrial based on the prosecuting attorney’s cross-examination of the defendant at trial. We reject both contentions as lacking in merit and affirm.

The evidence adduced at the trial relating to the defendant’s guilt is overwhelming on all the charges for which he was convicted. The trial court was eminently correct in denying the defendant’s motions for judgment of acquittal at trial. As to the burglary charge, the state clearly established that the defendant entered his father-in-law’s house without the consent of said father-in-law for the purpose of assaulting his wife who temporarily resided therein. Such an act without question constitutes a burglary within the meaning of Section 810.02, Florida Statutes (1975).

The defendant’s reliance on Vazquez v. State, 350 So.2d 1094 (Fla.3d DCA 1977), is misplaced. In that case, the court held that it is not a burglary for a husband who is physically separated from his wife to enter upon premises possessed by his wife without the wife’s consent with the intent to commit an offense therein if there is no legal separation agreement, restraining order or court decree limiting or ending consortium rights of the parties. In the instant case, the premises herein were indisputably possessed by the wife’s father wherein the wife temporarily resided thereby rendering Vazquez inapplicable. Contrary to the defendant’s contention, Vazquez does not stand for the sweeping proposition that an estranged husband may enter without criminal liability upon the premises of any person wherein his wife may temporarily be present. The holding of the case is confined solely to premises possessed by the wife wherein the husband has a legal right to be, not to premises possessed as here by a third party.

We further find no merit in the defendant’s contention that the trial court erred in denying the defendant’s motion for a mistrial based on a question propounded by the prosecuting attorney to the defendant upon cross-examination when such defendant testified at trial. The defendant made no objection to such question and we do not find that the question or the answer given warranted a mistrial. Perry v. State, 146 Fla. 187, 200 So. 525 (1941).

Affirmed.