text:
    Aaron ADIRIM, a/k/a Pinky Adirim, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1594.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Nov. 8, 1977.

      Tew & Mason and Donald Eugene Mason, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Appellant, Aaron (“Pinky”) Adirim, was charged by information with three counts of burglary, two counts of grand larceny, one count of attempted grand larceny, and two counts of conspiracy to commit a felony. He was convicted on all counts.

To establish appellant’s complicity, the state relied largely on the testimony of a co-conspirator, Thomas Britt. Appellant avers that the trial court erred by allowing the testimony of a co-conspirator without first requiring the introduction of independent evidence of the existence of a conspiracy.

The “co-conspirator rule” provides that “[ejvery act and declaration of each member of a conspiracy is the act and declaration of them all, and is therefore original evidence against each of them.” Honchell v. State, 257 So.2d 889, 890 (Fla.1971), and cases cited therein. However, independent proof of the existence of a conspiracy is required if acts or statements of one other than the accused are to be admissible against him under the co-conspirator exception to the hearsay rule. Honchell, supra; Farnell v. State, 214 So.2d 753 (Fla.2d DCA 1968); Hudson v. State, 276 So.2d 89 (Fla.4th DCA 1973); Parker v. State, 276 So.2d 98 (Fla.4th DCA 1973); Everett v. State, 339 So.2d 704 (Fla.3d DCA 1976).

This rule only operates to establish criminal liability of conspirators for the acts of their co-conspirators. It has no application to the admissibility of testimony of acts or statements of the accused himself, U. S. v. Etheridge, 424 F.2d 951, 967 (6th Cir. 1970), nor of probative evidence relevant to the ease and not otherwise ex-cludable. Williams v. State, 110 So.2d 654 (Fla.1959). See generally 22A C.J.S. Criminal Law § 782 at 1186-89 (1961). In this case, the witness, Britt’s, testimony as to the out-of-court acts and statements of the appellant were admissible without regard to the hearsay exception, and appellant’s reliance on the necessity for independent proof of the existence of a conspiracy was misplaced.

Moreover, appellant’s own extra-judicial acts and statements constituted independently admissible evidence of a conspiracy as well as of appellant’s participation in it, thus making the remaining portions of the witness’ testimony admissible under the co-conspirator exception. Damon v. State, 289 So.2d 720 (Fla.1973); Resnick v. State, 287 So.2d 24 (Fla.1973); Hudson v. State, 276 So.2d 89 (Fla.4th DCA 1973).

Appellant further contends that the variance between the allegation in Count I and the proof presented at trial represents reversible error. Count I alleged burglary of a structure which was the property of Jim Fisher. Testimony revealed that Fisher was the branch manager of the firm which owned the property, not the actual owner of the property. The record clearly shows that, as branch manager, Fisher was more than a mere employee. He was the individual responsible for the custody of the stolen items. It is well established that

. the meaning of ownership varies with the offense. Burglary is not a disturbance to the fee of the place as realty, but to the habitable security. Therefore, in burglary, ownership means any possession which is rightful as against the burglar.

Addison v. State, 95 Fla. 737, 740, 116 So. 629, 630 (Fla.1928); Harper v. State, 169 So.2d 512, 515 (Fla.2d DCA 1964). See also Johnson v. State, 293 So.2d 71 (Fla.1974); Dorsey v. State, 324 So.2d 159 (Fla.1st DCA 1975).

The purposes of the requirement of an allegation of ownership in a burglary charge are essentially twofold: (1) to prove that the premises allegedly broken into were not the property of the accused, and (2) to identify the offense sufficiently to protect the accused from repeated prosecution for the same offense. Addison v. State, supra; Gagne v. State, 138 So.2d 90 (Fla.2d DCA 1962). These purposes have been met on the facts of this case.

Appellant also asserts that reversible error was committed in denying his motion for acquittal on Count VI in that the state failed properly to allege ownership of the property. Count VI charged burglary of the property of Harold Mullins, as custodian. What has already been said in reference to the averment of error in Count I is equally applicable here. It is sufficient that the information allege conclusively that ownership of the property taken does not rest with the accused, since it is necessary to negative the possibility that the accused was taking his own property. Johnson v. State, supra.

Appellant’s remaining assertion of error is deemed without merit on the facts of this case.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Edward SHEDD, Appellant, v. STATE of Florida, Appellee.
    No. CC-380.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1977.
    Rehearing Denied Nov. 9, 1977.

      Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MASON, ERNEST E. (Retired), Associate Judge.

Convicted of grand larceny and sentenced to a term of seven years as a multiple offender, appellant complains of the refusal of the trial court to instruct the jury on a “class four lesser included offense” as such offense is defined in Brown v. State, 206 So.2d 377 (Fla.1968).

We conclude that the trial court was correct in such refusal, and we affirm.

The information charged the appellant (defendant below) with the crime of larceny of a motor vehicle, the property of one William C. Harris, with the intent permanently to deprive or defraud Harris of his said property or the use and benefit thereof, or to appropriate the same to the use of the taker or person other than the owner.

Appellant sought to have the trial judge instruct the jury that the offense charged against him in the information included the second degree misdemeanor offenses proscribed by Chapter 705 F.S., particularly the offense of failure to report the finding of wrecked or derelict goods to the county court as condemned by Section 705.07, F.S., and the offense of secretion or appropriation of wrecked or derelict goods as proscribed by Section 705.08 F.S.

There is in the record ample credible evidence from which the trial jury could reasonably have found that the motor vehicle in question was abandoned property within the definition of that term as used in Chapter 705 F.S., as well as such evidence as would have justified the jury in concluding that appellant intended to steal the vehicle, which latter conclusion the jury did reach by returning a verdict of guilty of the offense of grand larceny as charged in the information. But the information did not include the lesser offenses proscribed by Chapter 705 F.S. and the trial court was clearly correct in refusing to give instructions concerning such offenses. Such requested instructions were not ones properly to be given as ones involving “class four lesser included offenses” as such class of offense has been previously delineated by the Supreme Court of Florida in Brown, supra, and more recently in State v. Anderson, 270 So.2d 353 (Fla.1972), Gilford and Schaffer v. State, 313 So.2d 729 (Fla.1975), and others.

Section 705.07 makes an offense the failure of a person to report to the county court the finding of wrecked or derelict goods and Section 705.08 makes it a criminal offense to secrete or appropriate such goods. The proscription of the statute is against unlawfully dealing with abandoned property and connotes the idea that such property is such as which the owner has by his act of abandonment indicated that he no longer claims ownership or interest therein. The whole of Chapter 705 F.S. deals with derelict goods, abandoned motor vehicles, and other personal property, and directs the county judge to order the sheriff of the county in which such property is found to seize the same and sell it at public auction. Provision is made for the deposit of the net proceeds of the sale into the state treasury for the benefit of the state school fund.

The import of the statute is that the property is no longer that of any particular person or entity. Therefore, one who finds such abandoned property and fails to report it, or who appropriates it wrongfully, although committing a particular crime spelled out by the statute, is not depriving any particular prior owner of any ownership, interest therein, or right of possession of any such property. This for the very reason that such owner has abandoned the property and therefore relinquished such rights. The information herein charges the appellant with unlawfully dealing with Harris’ property with the intent to deprive him of his rights therein. This can only mean that under this information before appellant can be convicted of any offense included within the charge the evidence must establish that Harris still claimed a right or interest in the property at the time appellant committed the crime. Encompassed within the major offense of grand larceny charged in the information against appellant are all lesser offenses covering the intended misuse or appropriation of Harris’ property, either temporarily or permanently.

Under Brown, Anderson, and the other cases dealing with the class of offenses classified as “class four lesser included offenses”, before an instruction on a lesser offense is proper, the offense must be one within the encompassment of the accusatory pleading, as well as one which is supported by proof within the evidence at the trial. In the case at bar the evidence below may well be sufficient to support a verdict of the crime of appropriation of derelict or abandoned property or of the crime of failure to report the finding of the same as proscribed by Chapter 705 F.S., but these so-called lesser offenses for which the refused instructions were requested are not encompassed within the information — the accusatory pleading.

Mr. Justice Adkins in expounding upon and delineating the classes of lesser included offenses first categorized by the late Justice Thormal in Brown, supra, stated in Anderson, supra, that in order to justify and require an instruction on the theory of a lesser included offense the accusatory pleading must apprise the defendant of all offenses of which he may be convicted under it. In other words, the allegata must encompass the probata, as well as the pro-bata prove the allegata. Nothing in the charge set forth in the information before us in this case apprises the defendant that he is being accused of failure to report the finding of abandoned property or of secreting or appropriating “wrecked or derelict goods”, or an abandoned motor vehicle.

As further stated by Judge Adkins in Anderson, in order to justify an instruction on lesser included offenses, “the gist is not what the defendant would like to persuade a jury he may be guilty of, but that the accusatory pleading apprise him of all offenses of which he may be convicted” under it. We submit that no defendant would conclude from a reading of this information that he could lawfully be convicted of appropriating property which had been abandoned by Harris, its alleged owner, and which has become derelict goods or an abandoned motor vehicle, or of failure to report the finding of such a vehicle. Therefore, the trial judge did not commit error by refusing to give the requested instructions.

We find the other assignments of error to be without merit.

AFFIRMED.

ERVIN, Acting C. J., and DREW, E. HARRIS (Retired), Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Ralph R. MAGNA, Appellant, v. STATE of Florida, Appellee.
    No. 76-1232.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 9, 1977.
    Warner S. Olds, Public Defender, William W. Herring and Stuart M. Lerner, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The issue in this case is the admissibility of a declaration against penal interest when the unavailability of the declarant is not shown. Mr. Justice Hatchett, speaking for our Supreme Court, answered the question in Baker v. State, 336 So.2d 364 (Fla.1976), by saying at page 370:

“Because we have concluded that admissions against interest need not be excluded as hearsay, testimony of persons who have heard a confession should be considered on motion for new trial, when the person confessing is unavailable to testify himself.” (Emphasis added.)

In Baker, supra, it was alleged on a motion for new trial that J. E. Johnson had declared that Baker was innocent of the crime (according to Johnson’s wife) and that Johnson had committed the crime (according to Johnson’s mother-in-law). The appellant court reversed the Order for new trial because the newly discovered evidence, warranting the new trial, was inadmissible because it was hearsay. Our Supreme Court in reversing said admissions or declarations against penal interest are admissible as exceptions to the hearsay rule. Baker, supra.

In this case, at trial, Appellant tried to introduce evidence through testimony of Mrs. Brants that James Newton on various occasions had made admissions and other inculpatory statements regarding the murder for which Appellant was on trial. A proffer of her testimony was properly made and excluded from introduction before the jury.

Before an admission against penal interest is admissible it must be shown that the person confessing is unavailable to testify himself. The reason for such a requirement is obvious; if the person confessing is available to testify, he should be brought into court so the jury can hear his testimony directly. The burden of showing the unavailability of the declarant is on the party which offers the out-of-court statement. In the present case no attempt was made to establish the unavailability of the declarant; therefore, we find no error in the trial court’s rejection of the proffered testimony.

AFFIRMED.

ALDERMAN, C. J., and CROSS, J., concur.

      . Fla.R.Crim.P. 3.600.


author: PER CURIAM.

text:
    Richard Lionel SEGUIN and Eleanor Seguin, husband and wife, Appellants, v. HAUSER MOTOR COMPANY, Hauser Dodge Leasing Corporation, Universal Underwriters Insurance Company, Donald Page and Brooks H. Berrie, Appellees.
    No. 76-1928.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 9, 1977.
    Edgar G. Hamilton, of Hamilton, James, Merkle and Young, West Palm Beach, and William C. Sprott, Palm Beach, for appellants.
    Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees.
   PER CURIAM.

Plaintiffs appeal from a final judgment based upon a jury verdict in favor of the defendants, and from the denial of their motion for new trial in a personal injury action. We hold that the trial court erred first in failing to give plaintiffs’ additional requested jury instructions, and second by allowing defense counsel to inject into the case his own personal credibility.

On the first issue, it is axiomatic that each party is entitled to have the jury instructed upon his theory of the case. Sea Ledge Properties, Inc. v. Dodge, 283 So.2d 55 (Fla. 4th DCA 1973). Without the requested instructions defining the rights of a lien claimant, the plaintiffs’ theory of the case was left partially unexpressed. The requested instruction on vicarious liability should also have been given because it was only on this basis that the defendant Hau-ser Motor Co. could have been found liable.

On the second issue, it is also axiomatic that the expression by a lawyer of his personal opinion as to the credibility of a witness is not a proper subject for argument to the trier of fact. Florida Bar Code of Professional Responsibility, Canon 7, E.C. 7-24, D.R.7-106. Defense counsel as part of his closing argument to the jury said:

. I am an officer of the Court. If I lie to you, ladies and gentlemen of the jury, they would take my license away, and the practice of law and justice means too much to me and I tell you this; yes, Mr. Berrie was telling the truth. He told me that. He said, “That fellow, I knew him, he was limping long before this accident occurred. I can’t remember which leg it was. He had a limp and they called him, ‘the Penguin.’ I don’t know why. I always assumed it was by reason of the limp he had,” and that was what the man told me.

This was an expression by defense counsel of his personal opinion as to the credibility of the witness, and was improper. As stated by the Supreme Court in Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla.1952):

Verdicts rendered by a jury, after having heard such incompetent testimony from an attorney and such highly prejudicial remarks, under the circumstances as shown by this case, cannot be permitted to stand.

We have considered the other two points raised by appellants and find them to be without merit. Reversed and remanded for a new trial.

ALDERMAN, C. J., and DAUKSCH and MOORE, JJ., concur.


author:
HUBBART, Judge.
      PEARSON, Judge

text:
    Edward MILES, Richard W. Keenan and Kenneth L. “Dusty” Burrow, Appellants, v. John F. KAVANAUGH, Appellee.
    Nos. 76-478 and 76-510.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 8, 1977.

      Sawyer & Dunn, Edward C. Vining, Jr. and Richard A. Burt, Merlin & Horowitz and Gary Kalos, Miami, for appellants.
    Manners & Amoon, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is an action for breach of express warranty and misrepresentation in the sale of an airplane. Judgment was rendered for the plaintiff-buyer and the seller-defendant appeals. Party defendants responsible for repairing the airplane prior to the sale also appeal. We affirm.

In March, 1973, the plaintiff [John Kava-naugh] answered a newspaper ad placed by the defendant [Richard Keenan] advertising the sale of a used 1956 Cessna 172 private airplane. The plaintiff and defendant Keenan met on several occasions to examine the airplane and to discuss the sale. The defendant Keenan stated that the engine in the airplane had recently been completely overhauled during which time a number of new mechanical parts had been placed in the engine. The defendant Keenan gave the plaintiff an engine and propeller logbook detailing the mechanical repair and flight history of the airplane which the plaintiff carefully inspected.

The logbook reflected that on May 16, 1972, the engine had been given a major overhaul in which new mechanical parts were placed in the engine all in conformity with the manufacturer’s engine overhaul manual. The repair work had been done by the defendant [Kenneth L. “Dusty” Burrow] whose work was certified in the logbook by the defendant F.A.A. inspector [Edward Miles]. Based on the accuracy of this information, the plaintiff purchased the airplane from the defendant Keenan. The plaintiff specifically testified that he would not have purchased the airplane had he not been able to inspect and rely upon the information contained in the logbook.

The plaintiff flew the airplane without incident for several months. Thereafter, he experienced a harrowing engine malfunction while the airplane was in flight. On December 5, 1973, he took off from a narrow airstrip in the Everglades approximately fifty miles out of Miami. After takeoff, the engine began to lose power, shake violently and emit a loud clanking sound. The plaintiff was barely able to land on the Everglades airstrip without crashing.

Subsequent thereto, the plaintiff had to arrange at considerable expense for the airplane to be transported in parts to an aircraft repair shop and there completely re-overhauled. It was there discovered that the prior overhaul had not included new parts as represented and that the prior overhaul had been performed in a completely defective manner. All parties to this appeal agree that the logbook contained inaccurate, misleading and false information about the prior repair history of the airplane.

The plaintiff paid approximately $350 to transport the airplane from the Everglades for repairs and $5,700 for the re-overhaul job. In addition, the plaintiff estimated his loss of use of the airplane during this repair period to be $600.

The plaintiff sued the defendant Keenan and the defendants Burrow and Miles for breach of express warranty and misrepresentation. After a non-jury trial, the court awarded a judgment in favor of the plaintiff against all defendants in the amount of $5,800. The defendant Keenan appeals questioning his liability on the sale of the airplane as well as the amount of damages awarded. The defendants Burrow and Miles appeal solely on the damages issue.

I

The first issue presented by this appeal is whether a private party, who sells his used airplane to a buyer and to induce the sale shows the buyer an engine and propeller logbook setting forth the repair history of the airplane, expressly warrants the accuracy of the information contained in the logbook within the meaning of Florida’s Uniform Commercial Code, Section 672.313, Florida Statutes (1975). We hold that the seller expressly so warrants the accuracy of the information contained in the logbook where it forms part of the basis of the bargain between the parties.

The controlling law in this case is set forth at Section 672.313, Florida Statutes (1975), as follows:

“672.313 Express warranties by affirmation, promise, description, sample.—

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. [Emphasis added.]
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” [Emphasis added.]

The official comments of the above provision of Florida’s Uniform Commercial Code is instructive on the issue presented in this case and state in part as follows:

“(l)(b) makes specific some of the principles set forth above when a description of the goods is given by the seller.
A description need not be by words. Technical specifications, blueprints and the like can afford more exact description than mere language and if made part of the basis of the bargain goods must conform with them.” [Emphasis added.]

In the instant case, the defendant Keenan gave the plaintiff-buyer the engine and propeller logbook which, much like a blueprint, set out in some detail the prior repair and flight history of the airplane. The accuracy of the information contained in the logbook formed the basis of the bargain as the plaintiff relied upon the accuracy of such information and would not have purchased the airplane if he had not been permitted to see the logbook. The logbook thus constituted a description of the goods purchased by the plaintiff and an express warranty of the accuracy of such description.

The defendant Keenan argues that he never in so many words warranted the accuracy of the information contained in the logbook and was in fact ignorant of the admittedly false information on the pri- or repair history of the airplane. The simple answer to that argument is that an express warranty need not be by words, but can be by conduct as well, such as, the showing of a blueprint or other description of the goods sold to the buyer. Moreover, fraud is not an essential ingredient of an action for breach of express warranty and indeed it is not even necessary that the seller have a specific intention to make an express warranty. It is sufficient that the warranty was made which formed part of the basis of the bargain. We find such an express warranty in this case through Keenan’s showing of the logbook to the plaintiff without which this sale would never have been made. For breach of such warranty, the defendant Keenan is liable to the plaintiff. Downs v. Shouse, 18 Ariz.App. 225, 501 P.2d 401 (1972).

II

The second issue presented by this appeal is whether the measure of damages in a breach of warranty action in the sale of a defective airplane may include the expense of transporting the airplane for repairs, the expense of overhauling the airplane, and damages due to a loss of use of the airplane during repairs. We hold that such expenses and losses are recoverable when proximately caused by the breach of warranty.

The law is clear under Florida’s Uniform Commercial Code that the measure of damages in a breach of warranty action where the goods have been accepted by the buyer include any consequential damage proximately caused by the breach of warranty. Sections 672.714(3), 672.715(2), Florida Statutes (1975); Council Bros., Inc. v. Bay Burner Co., 473 F.2d 400 (5th Cir. 1973). In the instant case, the plaintiff’s expenses in transporting the airplane for repairs and overhauling it to conform to the express warranty as contained in the logbook plus the loss of use of the airplane during the repairs were all proximately caused by the breach of express warranty. Consequently, all such expenses were recoverable in this case.

The defendants do not contest the above principles of law but contend instead that the overhaul bill was excessive and unnecessary. Without going into detail as to each part replaced and the technical mechanical nature of the overhaul, we are satisfied that the bill was reasonably related to restoring the airplane to its original warranted condition and see no valid reason for upsetting the award made. Downs v. Shouse, 18 Ariz.App. 225, 501 P.2d 401 (1972). The judgment appealed from is in all respects affirmed.

Affirmed.

PEARSON, Judge

(concurring in part and dissenting in part).

My dissent is only to that portion of the opinion which holds that the seller of the airplane, Keenan, who tenders the engine and propeller logbook, expressly warrants the accuracy of the information contained in the logbook of the airplane to the extent that the seller’s warranty creates liability to the purchaser for improperly performed mechanical repairs performed by licensed airplane mechanics. It would be helpful to know more about the governmental regulations pertaining to the maintenance of the airplane and the logbook than this record reveals to us.

The majority holding seems to me to be that the very maintenance of the logbook by the owner and the display of the logbook upon request of a buyer constitutes, for the purpose of Section 672.313, Florida Statutes (1975) (Florida’s Uniform Commercial Code), a warranty that the repairs recorded were done without fault. This conclusion of law seems to me unreasonable under the language of the section and the facts of this case. If the facts are, as I believe the record shows, that the owner is required to maintain the logbook and must transfer it to the new owner, then there is no way that a seller can escape the warranty of the good workmanship of each repair listed in the logbook. Such an unlimited warranty is not as to the “accuracy of such description” of the entries made by the mechanics but is a warranty that the work was, in fact, done in a workmanlike manner. Such a conclusion is, in my view, unreasonable and should not be implied from the language of the section.

I, therefore, dissent from that portion of the opinion and would reverse as to the appellant Keenan.


author:
HUBBART, Judge.
      HAVERFIELD, Judge

text:
    Francisco VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-714.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 8, 1977.

      Pollack, Rosenfield, Spain & Cullen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen. and Miles Shlopack, Legal Intern, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This case is a criminal prosecution for burglary and battery. The defendant was convicted as charged and appeals.

The only substantial issue involved in this appeal is whether it is 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 intent to commit an offense therein. We hold that in the absence of a legal separation agreement, restraining order or court decree limiting or ending consortium rights of the parties, each spouse has a legal right to be with the other spouse on premises possessed by either or both spouses so long as the marriage relationship exists and that an entry on to such premises by either spouse cannot be a burglary under Section 810.02, Florida Statutes (1975). Accordingly, the burglary conviction is reversed and the battery conviction affirmed.

I

The sole alleged error preserved for appellate review is the denial of the defendant’s motion for judgment of acquittal made at the close of the state’s case. Mancini v. State, 273 So.2d 371 (Fla.1973). This motion was not renewed at the close of all the evidence in the case, and the defendant’s untimely motion for new trial was never ruled upon by the trial court. Consequently, the only relevant evidence in reviewing this alleged error on appeal is that presented by the state in its case in chief resolving, as we must, all reasonable inferences from the evidence in favor of the state. Lynch v. State, 293 So.2d 44 (Fla.1974).

Such evidence as thus viewed reveals that on December 7, 1975, in the early morning hours, the defendant, Francisco Vazquez, went to an apartment in Miami where his wife, Emma Vazquez, resided. The defendant had been physically separated from his wife for a year without either party having obtained a marriage dissolution, legal separation or restraining order. He formerly resided with his wife at this apartment prior to their physical separation. All the bills for the apartment were still made out in the defendant’s name although his wife had always paid for them. The record reveals that the parties subsequently obtained a dissolution of their marriage by the time of the trial of this cause.

On the night in question, the defendant knocked on the apartment door and demanded that his wife let him in. His wife made no reply, but fearing possible violence called the police and several neighbors. The defendant eventually broke the apartment door down, entered the apartment and physically struck his wife in the face with his fists causing certain injuries. Several neighbors came to the wife’s rescue and restrained the defendant from any further attack on the wife.

The defendant was charged by information in two counts with: (1) burglary in violation of Section 810.02, Florida Statutes (1975), and (2) battery in violation of Section 784.03, Florida Statutes (1975). The trial court sitting without a jury denied the defendant’s motion for judgment of acquittal made at the close of the state’s case, found the defendant guilty as charged at the close of all the evidence, and sentenced the defendant to one year in the county jail on each count of the information, sentences to run concurrently.

The defendant argues in his brief that the evidence was insufficient as a matter of law to sustain the conviction for battery. At oral argument, however, he quite properly abandoned this position since it is clear from the record that the evidence was more than sufficient to sustain the battery conviction. 3 Fla.Jur. Assault and Battery § 3 (1955). We, accordingly, affirm the defendant’s conviction and sentence for battery.

II

The defendant further contends that the evidence is insufficient as a matter of law to sustain the burglary conviction. He argues that his motion for judgment of acquittal as to the burglary charge should have been granted at the close of the state’s case. We agree.

Section 810.02, Florida Statutes (1975), the statute which the defendant was convicted of violating, provides in a relevant part as follows:

“810.02 Burglary
(1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.-083, or § 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault upon any person.
(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.”

The crime of burglary under this statute is the unconsensual entering or remaining in a structure or conveyance of another with the intent to commit an offense therein. The purpose of the statute is to punish an invasion of the possessory property rights of another in structures and conveyances. Presley v. State, 61 Fla. 46, 48, 54 So. 367, 368 (1911); Holzapfel v. State, 120 So.2d 195, 197 (Fla.3d DCA 1960). There can be no burglary under the statute, however, where (1) the premises are open to the public at the time of the alleged entering or remaining, or (2) the defendant is licensed, invited or otherwise has a legal right to be on the premises at the time of the alleged entering or remaining, or (3) the defendant had no intent at the time of the entering or remaining to commit an offense on the premises. Findley v. State, 128 Fla. 341, 174 So. 724 (1937); Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Balletti v. State, 261 So.2d 510 (Fla.3d DCA 1972).

In the instant ease, the wife had a posses-sory right in the apartment which the defendant entered without the wife’s consent with intent to physically abuse the wife. Ordinarily, this would constitute a burglary if the parties had been unmarried. But the parties were married and this fact makes a crucial difference because the defendant for purposes of the burglary statute had a legal right to be on the premises with his wife at the time of the entry.

One of the essential characteristics of the marriage relationship is consortium. Consortium means much more than sexual relation and means, also, affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage. Gates v. Foley, 247 So.2d 40, 43 (Fla.1971). Consortium necessarily implies that each spouse has a legal right to be with the other spouse which relationship neither one can unilaterally terminate. Kennedy v. Kennedy, 101 Fla. 239, 244-45, 134 So. 201, 203 (1931).

In the instant case, the defendant and his wife were married at the time of the entry into the subject apartment. No final decree dissolving the marriage and no legal separation agreement, restraining order or court decree limiting or ending consortium rights had been entered. The defendant, therefore, had a legal right to be with his wife on the subject premises at the time of entry which must preclude the application of the burglary statute. He did not, of course, have a legal right to physically abuse her and for his attack upon her he was properly convicted of battery.

Domestic disputes such as that reflected by this record present persistent and perplexing problems for the police and the courts. Traditionally, the criminal law has intervened in such disputes at the point of threatened or actual violence against either spouse, or when one spouse steals the separate property of the other spouse. State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946); Grantz v. State, 268 So.2d 572 (Fla.4th DCA 1972). See also Bullard v. Bullard, 195 So.2d 876 (Fla.2d DCA 1967). No prior case, however, has ever applied our burglary statute or any of its predecessor statutes to a domestic dispute between husband and wife where one spouse forcibly enters premises possessed by the other spouse without the latter’s consent. Moreover, our independent research indicates that no court in any other jurisdiction has so applied its burglary statutes. Such disputes in which one spouse bars the other spouse from certain premises occupied by one or both spouses have been treated as purely civil disputes which can only be resolved under the marriage dissolution and domestic relations laws, not the criminal law.

We conceive this well-settled part of our law to fully comport with the legislative purpose of the burglary statute. The statute is designed to protect people in the quiet enjoyment of their possessory property rights in structures and conveyances against criminal invasions by outsiders, not entries by persons occupying a marital or immediate familial relationship with the legal possessor. We cannot conceive that the legislature intended to apply the burglary statute with its harsh criminal penalties to domestic disputes within the immediate family unit over the right to be on certain premises. Such disputes have been and should continue to be treated as purely civil matters to which the burglary statute is inapplicable. We see no valid reason for departing from this sound and well-established precedent.

The defendant’s conviction and sentence for battery is hereby affirmed. The defendant’s conviction and sentence for burglary is hereby reversed and the cause remanded to the trial court with directions to discharge the defendant on the burglary charge only.

Affirmed in part and reversed in part.

HAVERFIELD, Judge

(concurring in part and dissenting in part).

I concur with the majority in sustaining the battery conviction. However, I am compelled to dissent with respect to the reversal of the burglary conviction because I do not believe that the subject apartment can be classified as the marital abode of the parties.

The general rule is that with respect to the crimes of burglary or breaking and entering, the ownership of the premises should be laid in the actual occupant, the party in possession and control thereof. Addison v. State, 95 Fla. 737, 116 So. 629 (1928). For such offenses involve an invasion of the possessory rights of another. Holzapfel v. State, 120 So.2d 195 (Fla.3d DCA 1960). Further, a dwelling house loses its character as such within the meaning of the statute providing punishment for breaking and entering a dwelling house if the occupant leaves without the intention of returning to occupy it as a dwelling. Henderson v. State, 80 Fla. 491, 86 So. 439 (1920). Last, even where the premises is classified as community property of the husband and wife and the husband abandons his wife and the property, then ownership may be charged to the wife. See 13 Am.Jur.2d Burglary § 38 at p. 344 (1964).

Reviewing the case sub judice in light of the above principles of law, the evidence is undisputed that defendant husband left the subject apartment over one year prior to the burglary with no intention of ever returning to occupy it as his dwelling. Thus, I can only conclude that he abandoned the premises, and the victim, his wife, was the sole occupant and had the possessory rights thereto. Balletti v. State, 261 So.2d 510 (Fla.3d DCA 1972) relied upon by defendant is easily distinguishable from the case at bar because in Balletti the residence was jointly owned by the wife and the husband and though separated, the husband retained a set of keys to the residence; and the defendant therein, a third party, had entered the residence at the direction and consent of the husband. Defendant in the instant case retained no keys to the apartment and gained entry only by actually breaking down the door. The premises no longer being in the nature of the marital abode and defendant no longer having a legal right to be there because he long ago had abandoned both his wife and the apartment, the evidence was sufficient to sustain the burglary conviction.

Last, I cannot accept the reasoning of the majority that simply because no final dissolution of marriage judgment, legal separation agreement, restraining order or court decree limiting or ending consortium rights had been entered at the time of the criminal occurrence, the defendant is excepted from the burglary statute. If the legislature had so intended, then it would have written such an exception into the statute. I, therefore, would affirm both judgments of conviction.


text:
    Mario MANCEBO and Jorge Mancebo, Appellants, v. The STATE of Florida, Appellee.
    No. 76-1856.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 14, 1977.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellants.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen. and Gregg Spieler, Legal Intern, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Mario Mancebo and Jorge Mancebo were charged by information with aggravated battery by use of a billiard ball. Both defendants were tried by jury, found guilty as charged, convicted and sentenced to 15 years imprisonment. The points raised on appeal include that the trial court erred in failing to grant a mistrial where, over defendants’ objections, the State elicited testimony concerning prior fights, and where the State commented during closing argument on the defendants’ bad characters and propensities for violence.

The record reflects that when each defendant testified on his own behalf, his counsel brought out evidence of good character for lawful conduct. On cross examination of Mario, the prosecutor proceeded to ask whether Mario had been involved in fights before, whereupon defense counsel made a motion for mistrial which was denied. The prosecutor later clarified the inquiry to relate to the night in question.

As a general rule, wide latitude is permitted on cross examination, the scope and limitation of which lies within the sound discretion of the trial judge, and is not subject to review except for a clear abuse. Matera v. State, 218 So.2d 180, 183 (Fla. 3d DCA 1969). As defense counsel voluntarily introduced evidence tending to show the defendants’ good character for lawful conduct, their good character was placed in issue. See Kite v. State, 126 Fla. 77, 170 So. 445 (1936). Thus, where defendants placed their character for lawfulness in issue, questions relating thereto on cross examination were relevant and non-prejudicial. No abuse of the court’s discretion has been demonstrated in the denial of the motion for mistrial. Compare Lawson v. State, 304 So.2d 522 (Fla. 3d DCA 1974).

Next, Jorge contends that as he and Mario were depicted as close cousins, Mario’s admissions infected Jorge’s trial with prejudice. No such objection having been raised at trial, however, the error is not properly preserved for appellate review. State v. Barber, 301 So.2d 7, 9 (Fla.1974), and cases cited therein.

As to the contention that the court erred in not granting a mistrial based on comments in the prosecutor’s closing argument, the record reflects that no motion for mistrial was made at the time of the comments complained of. Therefore, the court could not have erred in failing to grant a mistrial. Thomas v. State, 326 So.2d 413 (Fla.1975). In addition, we find that the statements were fair comments within the bounds of the evidence. See Spencer v. State, 133 So.2d 729, 731 (Fla.1961); Johnsen v. State, 332 So.2d 69 (Fla.1976). The proper remedy, if any, would have been to request the trial court to make a corrective instruction. Mabery v. State, 303 So.2d 369, 370 (Fla. 3d DCA 1974).

The defendants further contend that the court erred in admitting into evidence mug shots of them where identity was not at issue, and where the mug shots served no useful purpose except to prejudice the defendants by implying that they had been guilty of prior unrelated crimes. Generally, reference to mug shots does not require an automatic reversal; rather, the question must be resolved on the basis of the entire record and surrounding circumstances under which the photographs were introduced. Loftin v. State, 273 So.2d 70, 71 (Fla.1973). See also Williams v. State, 233 So.2d 428 (Fla. 3d DCA 1970). Our examination of the entire record and surrounding circumstances in this case, including the precautions taken by the trial judge in “cropping” the photographs, reveals that the introduction of the photographs was harmless, at most, and that there was no error committed that injuriously affected the substantial rights of the defendants.

The final point on appeal, which concerns the admission into evidence of the billiard ball, is without merit.

For the reasons stated and on the authorities cited, the judgments of conviction and sentences of both defendants are

Affirmed.


author: PEARSON, Judge.

text:
    Ramon BENITEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-289.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 10, 1977.

      Pollack, Rosenfeild, Spain & Cullen; John H. Lipinski, Miami, for appellant.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PEARSON, Judge.

The controlling question presented on this appeal is whether investigative costs incurred by a defendant in a criminal proceeding may be recovered from the State as taxable costs upon defendant’s acquittal of the crime charged in the criminal proceeding. We hold that as a matter of law, investigative costs are not recoverable as taxable costs.

Appellant Ramon Benitez was charged by indictment with first degree murder on June 25, 1975, of effecting the death of one Mario Pineiro by shooting him with a pistol. The charge carried with it a maximum sentence of life imprisonment.

A Demand for Discovery pursuant to Fla. R.Crim.P. 3.220 was entered July 7, 1975. The appellant was granted a Motion for Continuance on November 13,1975, alleging that depositions of four key witnesses had been taken and that said depositions revealed serious conflicts among the witnesses relative to whether or not a gun defendant submitted was in the possession of the victim at the time of the shooting. Further, the proposed witnesses were friends of the deceased and business partners with him, and it has been necessary for the defendant to discover independent witnesses relative to the matters in controversy. Also, the investigators for Dave Heilman Detective Agency had interviewed Nilas Alvarez, who is the owner of the Nilas Beauty Shop, located in the shopping plaza where the homicide occurred, and were advised by Alvarez that there were two witnesses to the event who came into her store and said they heard the victim aggressively threaten to kill the defendant. It was utterly necessary and mandatory for Ramon Benitez to expend certain sums of money in his defense to find key witnesses not supplied concurrently with his Demand for Discovery. The appellant successfully utilized a defense of self-defense; however, it was totally necessary to locate witnesses who could corroborate this defense. The incident took place in a crowded neighborhood shopping center and the possibility that there were persons who witnessed the event required independent investigators.

The reports of both the Dave Heilman Detective Agency and the La Mar Detective Agency were extensively used in counsel’s cross-examination of the witnesses called on behalf of the State of Florida. Further, the witnesses produced on behalf of appellant contributed to, and were instrumental in, the ultimate verdict in the cause of not guilty on November 4, 1976.

In presenting his argument for reversal, appellant agrees that the position that he maintains is not supported by a decided case in this state. He has also failed to cite the court to any authority from any other jurisdiction holding that investigative costs are taxable costs. Appellant further agrees that there is no specific statutory authority for his position. He urges that the public policy of the state as expressed by the constitution and the statutes is that an acquitted defendant ought to be allowed the reasonable costs necessary for his defense and, therefore, that this court should hold that an acquitted defendant should not be penalized by having to bear the costs necessary for his defense.

The record reveals that the appellant is solvent. He is, therefore, not entitled to the benefits of the public defender system or any of the statutes enacted for the protection of insolvent defendants. See Section 27.53(1), Florida Statutes (1975); but cf. Attorney General Opinion 075-64.

At common law, the right to recovery of costs in a criminal proceeding was unknown. See Warren v. Capuano, 269 So.2d 380 (Fla.4th DCA 1972). It is only by statutory authorization that any right to recover costs exists. See 20 Am.Jur.2d Costs § 100 (1965).

Section 939.06, Florida Statutes (1975), specifically provides:

“939.06 Acquitted defendant not liable for costs. No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If he shall have paid any taxable costs in the case, the clerk or judge shall give him a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to him by the county.”

The only way in which the investigative costs could be held to be taxable costs would be for this court to hold that the term “taxable costs,” as used in Section 939.06, Florida Statutes (1975) means all reasonable and necessary costs. Such an interpretation would be contrary to the holding of the courts of this state. See Doran v. State, 296 So.2d 86 (Fla.2d DCA 1974); Holton v. State, 311 So.2d 711 (Fla.3d DCA 1975). See also 20 C.J.S. Costs § 457b (1940).

While there is force to the argument that an innocent defendant who has been acquitted of the crime charged should be left as whole financially as a land owner whose property is taken by the State, we think that such j'udicial legislation would be improper by this court and that the matter must properly be left to the legislative authority. We are impelled to note that appellant’s reasoning would place an incalculable burden upon the State in the prosecution of criminal offenses because in each case in which a conviction was not secured, the State would be charged with all “reasonable and necessary costs.” Such costs might well include attorney’s fees, loss of time and remuneration for the strain of a criminal trial.

The enforcement of the criminal laws is for the benefit of all and the fact that some citizens are financially burdened by this enforcement is not a sufficient reason to further handicap the processes of criminal law enforcement at this critical time in the struggle of the State to control the criminal element in society.

The order denying appellant’s motion to tax investigative costs is affirmed.

Affirmed.

      . See Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968).

      . Article I, Section 19, of the 1968 revision of the Florida Constitution provides:
      “No person charged with crime shall be compelled to pay costs before a judgment of conviction has become final.”
      This section was derived from Section 14, Declaration of Rights of the Florida Constitution of 1885.
      Article XVI, Section 9, of the Florida Constitution of 1885 reads as follows:
      “In all criminal cases prosecuted in the name of the State when the defendant is insolvent or discharged, the legal costs and expenses, including the fees of officers, shall be paid by the counties where the crime is committed, under such regulations as shall be prescribed by law; and all fines and forfeitures collected under the penal laws of the State shall be paid into the county treasuries of the respective Counties as a general County fund to be applied to such legal costs and expenses.”
      This is preserved by Article XII, Section 10, of the 1968 revision of the Florida Constitution.

      . In civil cases, it has long been the law in Florida that in the absence of a statutory provision, the award of costs is within the broad discretion of the trial judge. See White v. Walker, 5 Fla. 478 (1854); Crane v. Stulz, 136 So.2d 238 (Fla.2d DCA 1961); and Insurance Company of North America v. Twitty, 319 So.2d 141 (Fla.4th DCA 1975).


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Richard Norris BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. EE-202.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1977.
    Rehearing Denied Nov. 14, 1977.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

MILLS and SMITH, JJ., concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent. The sole evidence adduced by the state, upon which the jury returned a verdict that appellant was guilty of burglary, was that of latent fingerprints taken from the tile edge inside the window of Room 128 at the Greenbrier Motel located in Duval County, Florida.

The jury began deliberating at 4:24 p. m., and at 5:43 p. m. the following colloquy took place:

“(Jury present)
THE COURT: Mr. Foreman, the bailiff advises me that you are not able to arrive at a verdict. Is that correct?
FOREMAN BURGESS: That is correct.
THE COURT: Mr. Foreman, in your opinion, are you hopelessly deadlocked?
FOREMAN BURGESS: I would believe so.
THE COURT: You do or do not?
FOREMAN BURGESS: I would believe that we are.
THE COURT: All right, I’m going to read you a charge and then I want you to go back and deliberate further.”

At this time, the trial judge gave the “Allen” charge to which the appellant took exception. The jury retired at 5:50 p. m., and at 6:03 p. m. they returned a verdict of guilty as charged.

As pointed out by appellant, the jury was not given a reasonable period of time within which to reconcile the contradictory testimony in this case. The trial judge made no reference whatsoever to allowing the jury to break for dinner, and, instead, gave them the “Blockbuster” charge and sent them back to deliberate. Lee v. State, 239 So.2d 136 (Fla. 1st DCA 1970).

In my opinion, under these circumstances, the giving of the Allen charge was error. Appellant was entitled to the jury’s careful and unhurried deliberation. I would reverse and remand for a new trial.

      . Appellant testified in his own behalf and stated that he did not leave any fingerprints on the ledge of the window; did not know where the Greenbrier Motel was located; and did not take a TV from the motel room nor was a TV found in his custody or control.


author: CROSS, Judge. ALDERMAN, Chief Judge, DOWNEY, Judge,

text:
    STATE of Florida, Appellant, v. Walter ABRAMS, Jr., Appellee.
    No. 76-1518.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 9, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellant.
    David Roth of Cone, Owen, Wagner, Nu-gent, Johnson & McKeown, West Palm Beach, for appellee.
   CROSS, Judge.

Appellant, State of Florida, seeks review of a trial court order granting appellee-de-fendant, Walter Abrams’ motion for discharge. We reverse.

Abrams was found guilty after a jury trial and sentenced to ten years imprisonment for robbery. On appeal, Abrams’ conviction was reversed by this court and remanded for new trial, as reported at 326 So.2d 211 (Fla. 4th DCA 1976). While a private attorney had initially represented Abrams, the public defender was appointed to prosecute the appeal. On remand, private counsel was served notice of Abrams’ new trial date, at which time he moved to withdraw from the case, which motion was granted. The minutes of the hearing reflect that the trial judge expressed an intention to enter a written order appointing the public defender, and directed the clerk to notify the public defender’s office to represent Abrams. Although the record does not reflect any written order of appointment of the public defender entered at that time, the public defender proceeded to represent Abrams. Trial date was set but due to the fact that Abrams did not arrive in the county for trial shortly before the set date, the public defender requested a continuance on the basis that proper trial preparations required further consultations with Abrams.

Upon the expiration of ninety days after the mandate was forwarded by this court to the trial court directing a new trial 'be granted, Abrams moved to be discharged pursuant to Fla.R.Crim.P. 3.191(g). At that time, Abrams alleged he had not been afforded a speedy trial, and the public defender’s office did not represent him. After a hearing, the trial court determined the public defender’s office was without authority to seek a continuance and waive Abrams’ right to a speedy trial. Accordingly, the trial court found Abrams was not bound by the public defender’s action and granted his motion for discharge. This appeal then followed.

The question presented by this appeal is whether the trial court erred in granting appellee’s petition for discharge.

The principle is well established that the right to a speedy trial is waived when the defendant or his attorney request a continuance. The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes. McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974); Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976). Rule 3.191 does not require that the accused be present when a waiver is made; nor does it require that waiver be made personally by the accused.

In the instant case, a public defender was appointed to prosecute Abrams’ appeal, pursuant to which the conviction was reversed. As a public defender was validly appointed to act as Abrams’ attorney, and the benefits of the public defender’s representation were accepted by Abrams, an attorney-client relationship was established which did not terminate upon the order for a new trial. The existence of an attorney-client relationship was never questioned until Abrams sought to be discharged for failure to be brought to trial within ninety days after the reversal of his conviction on appeal, contrary to Fla.R.Crim.P. 3.191(g). There was in existence a valid attorney-client relationship at the time the public defender sought a continuance two weeks prior to the expiration of the ninety days. Therefore, Abrams’ right to a speedy trial was effectively waived. Abrams cannot accept the benefits of representation by the public defender until it is in his interest to deny the existence of that relationship. The public defender was authorized to act in Abrams’ behalf; therefore, Abrams is bound by his attorney’s actions.

Accordingly, the order of discharge is reversed, and the cause remanded for further proceeding.

Reversed and remanded.

ALDERMAN, C. J., concurs specially, with opinion.

DOWNEY, J., dissents, with opinion.

ALDERMAN, Chief Judge,

concurring specially:

I concur and additionally point out that the defendant did not know that the public defender was purporting to represent him until after his return to Palm Beach County on June 4, 1976. At that time the ninety day period had not expired. The mandate had been received by the trial court on March 16, 1976; therefore, the ninety days allowed under Fla.R.Crim.P. 3.191(g) would have expired on June 14, 1976. After talking with an assistant public defender, the defendant took no action to advise the trial court and the state attorney that he did not want a continuance; instead, he took advantage of the continuance, waited until the ninety days had expired, and then filed his motion for discharge.

The trial judge, the state attorney and the public defender were acting in good faith. The continuance was believed by them to be on behalf of, for the benefit of, and in the best interest of the defendant. Once the defendant became aware of the continuance, at a time prior to the expiration of the ninety days, I think he had a duty to advise the trial judge and the state attorney that he didn’t want the continuance and that he was ready for trial. If he had so advised the trial court and the state attorney, the case might have again been reset for trial before the expiration of the ninety day period. The defendant cannot take advantage of the continuance, count the days until the ninety days have expired, and then file his motion for discharge.

DOWNEY, Judge,

dissenting:

If appellee had known the Public Defender was purporting to represent him after the Mandate came down and stood silently by until the speedy trial time had expired, I would agree the order of discharge should be reversed. However, the record before this court demonstrates that appellee had no such knowledge. Thus, the Public Defender’s representation of appellee in the trial court and the two continuances which the Public Defender obtained were unauthorized and should not be binding upon appellee.

This position seems somewhat technical perhaps, but after the appeal was concluded the services for which the Public Defender was appointed were concluded and appellee then had three options. He could, if indigent, request the Public Defender to handle his new trial, he could represent himself, or he could employ private counsel. As far as appellee knew nothing was done so it is impossible to attribute any estoppel or waiver to the appellee. He knew nothing of the Public Defender’s proposed appointment (which was never effectuated), nor of the Public Defender’s activity on his behalf. When he first learned the Public Defender was purporting to represent him appellee advised the Public Defender he did not desire his counsel.

Therefore, I feel compelled to affirm the trial court’s order discharging appellee under the Speedy Trial Rule.


text:
    David COOPER and Celia Cooper, his wife, Appellants, v. FENTON BRACE & LIMB COMPANY, INC., a Florida Corporation and, National Indemnity Company, a Foreign Corporation, Appellees.
    No. 76-890.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 10, 1977.

      Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellants.
    Virgin, Whittle & Popper and Gary E. Garbis, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ. and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiffs [David Cooper] and his wife [Celia Cooper] appeal from a final judgment entered in a negligence action in favor of the defendant [Fenton Brace & Limb Company] and its insurer [National Indemnity Company]. The plaintiffs contend that it was error for the trial court to direct a verdict in favor of the defendants at the close of all the evidence in the case. We agree and reverse.

The law is clear that a directed verdict should not be entered for a defendant in a negligence action unless the plaintiff cannot recover under any reasonable view of the evidence; even where the evidence is not in dispute, when conflicting reasonable inferences may be drawn from the admitted facts, questions of negligence and negligence causation are peculiarly questions of fact which should be permitted to go to the jury. Rio Seco v. Alfred Meyers Trucking, Inc., 208 So.2d 265 (Fla. 3d DCA 1968). Our review of the evidence in this case leads us to the conclusion that there were conflicting reasonable inferences on the question of negligence and negligence causation based on all the evidence which precluded the entry of a directed verdict in favor of the defendants.

Reversed and remanded for a new trial.


text:
    Shelly COWAN, Appellant, v. Dr. Menilio DIAZ-PADRON, Appellee.
    No. 76-912.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 10, 1977.
    Cohen & Kokus and Linda Koenigsberg, Susan Goldman, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appellee.
    Before NATHAN and HUBBART, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff [Shelly Cowan] appeals from an adverse summary judgment in a medical malpractice action contending that there are genuine issues of material fact as to the alleged negligent diagnosis and treatment of the plaintiff’s spinal injuries by the defendant [Dr. Menilio Diaz-Padron]. We agree and reverse on the authority of Holl v. Talcott, 191 So.2d 40 (Fla.1966).

There remain genuine issues of material fact in the case including whether the defendant, consistent with the standards of reasonable medical care in the community, promptly administered and properly read the results of a Queckenstedt test given the plaintiff to determine the presence of blockage of cerebral spinal fluid, whether the plaintiff should have been promptly placed in traction after discovery of the injury, and whether a drug called decadron should have been administered to treat the plaintiff’s spinal cord injury so as to prevent the alleged painful and unnecessary spinal fusion eventually administered to the plaintiff. There are also genuine issues relating to whether the defendant promptly ordered a circular hospital bed for the plaintiff so as to prevent the occurrence of alleged painful decubitus ulcers. See Helms v. Sims, 330 So.2d 71 (Fla.3d DCA 1976); Giallanza v. Sands, 316 So.2d 77 (Fla.4th DCA 1975); Lab v. Hall, 200 So.2d 556 (Fla.4th DCA 1967).

The summary judgment entered in favor of the defendant is, accordingly, reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


author: HAVERFIELD, Judge.

text:
    Jack Allan WILLNER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-314.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 14, 1977.

      Law Offices of Onett-Colodny, North Miami, and Joel S. Foss, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

This is an appeal by Jack Allan Willner from (1) an order revoking his probation and sentencing him to serve five years in the state penitentiary, and (2) an order denying his motion to vacate and set aside his original sentence.

On February 13, 1973 defendant was informed against for unlawful sale of cocaine, unlawful possession of cocaine and several counts of conspiracy to unlawfully sell or deliver cocaine. Subsequently, defendant pled guilty to count I (unlawful sale of cocaine) and count III (conspiracy to commit the unlawful sale or delivery of cocaine). On May 24, 1974 he was sentenced to one year less one day in the county jail on count I, and five years probation on count III to begin at the expiration of the jail sentence. After commitment, defendant filed a motion to mitigate his jail sentence, which was heard on January 30,1975 by the trial judge who imposed the original sentence. The judge entered an order reducing the length of defendant’s jail sentence to 252 days on count I, and retaining the five year probation sentence on count III (to begin at the expiration of his jail sentence). After serving 252 days, the defendant was released from jail. On October 28, 1976 defendant appeared in federal district court and pled guilty to unlawfully importing cocaine. Upon ascertaining this fact, defendant’s probation officer filed an affidavit of violation of probation, and on January 13, 1977 a revocation of probation hearing was held. At the hearing defendant contended he did not realize that he remained on probation after his sentence was mitigated by the January 30, 1975 order because the Department of Offender Rehabilitation did not contact him upon his release from the county jail. Following a continuance, the hearing was resumed on January 26 at which time defense counsel raised an additional issue of the legality of the original May 24, 1974 sentence. The court ruled that this issue was not properly before the court; and further found that only the sentence on count I had been mitigated, and defendant knew that the probation sentence on count III was still in effect at the time his jail sentence was reduced as evidenced by his motion for mitigation requesting reduction only of his jail time. Thereupon, the court revoked defendant’s probation and sentenced him to five years in the state penitentiary. Defense counsel then filed a motion to vacate the original May 24, 1974 sentence which was denied. Defendant perfected the instant appeal from these two orders.

Defendant first urges as reversible error the entry of the revocation of probation order because he was not aware that he was on probation after the judge entered the January 30, 1975 mitigation order. We cannot agree.

The record reflects that defense counsel admitted to the court that defendant at the time of the imposition of his original sentence on May 24, 1974 knew that he was receiving five years probation on count III to commence after he served his jail sentence on count I. This fact is further evidenced by the defendant’s pro se motion to mitigate wherein he acknowledged both the jail and probation sentences and requested a mitigation of his sentence to the county jail. Although his jail sentence was reduced, the January 30, 1975 mitigation order specifically restated that defendant would be placed on five years probation on count III after he served his jail time on count I. Only the jail time was mitigated by the order of January 30, 1975 and defendant’s probation commenced at the conclusion of his jail sentence and, therefore, he was still on probation at the time of the alleged violation.

We are also not persuaded by defendant’s argument that the Department of Offender Rehabilitation took no action to inform him that he was on probation. A person on probation hardly needs an official document to advise him that the commission of a felony such as the unlawful importing of cocaine while on probation constitutes a violation of such probation. Cf. Jones v. State, 296 So.2d 519, 521 (Fla.3d DCA 1974).

Defendant also argues that the original sentence imposed on May 24, 1974 was illegal and, therefore, the court erred in denying his motion to vacate the sentence. We find the original sentence to be legal.

Pursuant to Section 922.051, Florida Statutes (1973) the judge properly sentenced the defendant to the county jail instead of the state prison as to count I. We also find proper the sentence of five years probation on count III to begin after defendant serves his term in the county jail on count I, as probation in one case to follow a jail sentence in another case is valid. See Dade County v. Baker, 265 So.2d 700 (Fla.1972); Sands v. State, 313 So.2d 116 (Fla.3d DCA 1975).

Affirmed.


text:
    GENERAL INSURANCE COMPANY OF FLORIDA and Norman Hammett, Appellants, v. Frederick S. McKEON, Appellee.
    No. 77-668.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 8, 1977.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellants.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford and Paul J. Levine, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Reversed. Cunningham v. Romano, 278 So.2d 631 (Fla.3d DCA 1973); Proctor & Gamble Distributing Company v. McGlamery, 341 So.2d 521 (Fla.3d DCA 1976); Mejiah v. Rodriguez, 342 So.2d 1066 (Fla.3d DCA 1977); McKay v. Motley, 343 So.2d 668 (Fla.2d DCA 1977); Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), opinion filed September 8, 1977.


author: SMITH, Judge.

text:
    Cleo M. RAULERSON, Appellant, v. GENERAL FINANCE CORPORATION of Florida, Appellee.
    No. DD-305.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1977.
    Peter J. Kellogg of Grissett & Hum-phries, Jacksonville, for appellant.
    Joel L. Goldman of Goldman, Presser, Lewis & Nussbaum, Jacksonville, for appel-lee.
   SMITH, Judge.

Cleo Raulerson appeals from a judgment entered on an adverse jury verdict. Her claim against appellee General Finance, her former employer, was that it withheld salary increases and promotion because she is a woman and eventually discharged her as a result of her repeated demands that she receive equal pay for equal services performed. The applicable statute, Section 725.07, Florida Statutes (1973), provided:

“No person . . . shall discriminate against any person based on sex, marital status, or race in the areas of loaning money, granting credit, or providing equal pay for equal services performed.”

The statute provided for an award of compensatory and punitive damages and attorney’s fees to one damaged by proscribed conduct.

The trial court was correct in excising from Raulerson’s claim her allegation that she was denied promotion to a designated job category because of her sex. Titular promotion is not a matter addressed by Section 725.07. Although the session law’s title describes the enactment as proscribing discrimination in “hiring, discharging or promoting employees,” Chapter 73-251, Laws of Florida, the bill’s operative language to that effect was deleted before passage in favor of requiring “equal pay for equal services performed.” The enacted phrase, being unambiguous, may not be expanded by reference to inconsistent language in the title of the act which somehow escaped amendment. The jury found Rau-lerson was not denied “equal pay for equal services performed.” The statute does not purport to create a cause of action for discharge of an employee who erroneously and repeatedly asserts entitlement to more salary, although the discharge of one asserting a meritorious claim under the statute may properly be considered in assessing punitive damages. Because Raulerson’s claim was found not to be meritorious, her discharge is not remediable under Section 725.07.

We have considered the other grounds urged for reversal and find no harmful error.

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


text:
    STATE of Florida ex rel. Jerry Solano LEWIS, Relator, v. Jack SANDSTROM, Director, Dade County Department of Corrections and Rehabilitation, Dade County, Florida, Respondent.
    No. 77-1247.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1977.
    Rehearing Denied Nov. 14, 1977.
    Stanley M. Goldstein, Miami, for relator.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for respondent.

      Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This matter is before this court on a petition for writ of habeas corpus, wherein, the petitioner stated in essence, that he is presently in respondent’s custody in the Dade County Jail; that on August 12,1976, he appeared before the Circuit Court of Dade County for sentencing in case Nos. 75-544, 75-8267, and 76-6503B; that on the same date, the court sentenced petitioner to five years in the State Penitentiary at Lake Butler in each of the above cases, sentences to run concurrently with credit for time served in the Dade County Jail amounting to two hundred, thirty-five days; that the court further provided that after serving two and one-half years, the petitioner was to be released to the custody of the Probation and Parole Commission for the remaining two and one-half years. The petition also stated that on September 9, 1976, petitioner, through the office of the Public Defender, filed a motion to mitigate the sentences; that petitioner was returned to the Dade County Jail from the state penitentiary and appeared before the sentencing court on October 5, 1976, which after conducting a hearing, denied the motion; that petitioner then wrote a letter to the court requesting that he be allowed to stay in the Dade County Jail, rather than the Lake Butler facilities, in that he was receiving medical treatment in Dade County and, in addition, feared for his life at the state prison; that on January 28,1977, petitioner and public defender again appeared before the circuit court and ore tenus reviewed his motion to mitigate the sentence.

In addition, the petition further stated that at the time of this second hearing to mitigate, petitioner agreed to do anything if he would be allowed to stay in the Dade County Jail and in response, the court explained to him that the only way this could be accomplished was if petitioner would waive his credit for time served, which at the time amounted to four hundred and four days; that petitioner agreed and the sentence imposed on August 12, 1976, was thereupon vacated; that petitioner was thereupon resentenced to three and one-half years, one year in the Dade County Jail and two and one-half years probation, concurrent, no credit for time served.

Finally, the petition states that on May 5, 1977, petitioner, through counsel, filed a motion to correct the sentence imposed on January 28,1977, pursuant to Fla.R.Crim.P. 3.850, requesting that the portion of the sentence denying credit for time served be vacated; and that subsequent to a hearing held on the matter before the sentencing judge, the motion to correct sentence was denied and petitioner was remanded to the Dade County Jail.

Petitioner thereupon requested that we issue our most gracious writ of habeas corpus based upon the contention that, pursuant to Section 921.161, Florida Statutes (1975), credit for time served is mandatory and cannot be waived. The above contention is, however moot, for the following reason.

The petition, response and exhibits attached thereto show that both the order vacating the original sentence and new sentence entered on January 28, 1977, are a nullity, in that the court lacked jurisdiction to change petitioner’s prior lawful sentence in any way. State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969), cert. denied, 229 So.2d 261 (Fla.1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970).

Therefore, the original sentence entered on August 12, 1976, remains in full force and effect and the petition is hereby dismissed.

Petition dismissed.


text:
    Timothy K. WRICH, Appellant, v. STATE of Florida, Appellee.
    No. 76-1802.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1977.
    As Modified On Denial of Rehearing Nov. 9, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Timothy K. Wrich was placed on probation on October 9, 1972, after having entered a plea of guilty to a charge of burglary. On February 25,1975, his probation supervisor filed an affidavit charging him with violations of conditions (d), (e) and (h) of his probation. Two days later a hearing was held on these violations, and at that hearing the trial court found that appellant had not violated conditions (d), (e) and (h). He did, however, find that appellant was guilty of a violation of another condition, condition (c); whereupon, he revoked appellant’s probation and sentenced him to a term of five years with fifteen days credit for time served.

This court affirmed that order and the Supreme Court of Florida denied appellant’s petition for writ of certiorari. Appellant thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida, claiming that his due process rights had been violated when he was convicted of a probation violation with which he had not been charged. The district court agreed with appellant and determined that the order violated due process.

On September 27,1976, appellant’s probation supervisor filed a new affidavit for violation of probation, this time for violation of the aforementioned condition (c). The trial court found appellant guilty at a hearing held on October 11,1976, and again sentenced him to five years in prison with appropriate credits. This appeal ensued.

Appellant argues that the trial court had no jurisdiction on October 11, 1976 to revoke his probation. We agree.

Appellant’s original three-year term of probation ended on October 9,1975. That date remained effective despite the federal court findings. It was not until almost a year later, September 27, 1976, that the second affidavit of violation was filed. This was fatally untimely since it is well settled that an affidavit alleging a violation of probation must be filed before the expiration of the probation. Maycock v. State, 281 So.2d 64 (Fla. 3d DCA 1973); State ex rel. Ard v. Shelby, 97 So.2d 631 (Fla. 1st DCA 1957).

The other points raised on this appeal now become moot.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions that appellant be forever discharged of the burglary charges herein.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


author: BOYER, Judge.

text:
    Mark J. WYATT, a minor, by his next friend and parent, Albert B. Wyatt, and Albert B. Wyatt, Individually, Appellants, v. Robert McMULLEN, a minor, Gerald McMullen, Catherine McMullen, his parents, and Robert Henley, a minor and Dyna Henley and Joseph H. Smith, his parents and custodians, Appellees.
    No. EE-218.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1977.

      Robert B. Kane, Tallahassee, for appellants.
    J. Eugene Kelley, Jr., of Cotton, Shivers, Gwynn & Daniel, Tallahassee, for appellees.
   BOYER, Judge.

Plaintiff Albert B. Wyatt is the father of Mark J. Wyatt a 12-year-old minor who is alleged to have received injuries to his eye as a result of being shot with a BB by the 8-year-old minor defendant Robert Henley by the use of a BB gun allegedly owned by the 6-year-old minor defendant Robert McMullen. Defendants Gerald McMullen and Catherine McMullen are the parents of the minor owner of the BB gun, Robert McMullen. The defendant Dyna Henley is the mother of the minor Robert Henley, who allegedly fired the gun as aforesaid. They allegedly lived with and “are members of the household of” defendant Joseph H. Smith.

Plaintiffs filed a two count complaint against all of the defendants. Upon considering motions to dismiss the second amended complaint the learned trial judge dismissed with prejudice count two as to all defendants. He also dismissed count one as to defendant Joseph H. Smith only. It is from that order that the plaintiffs in the trial court have taken this appeal. Appellants do not urge that they should have been afforded an opportunity to further amend, it being their position that each count of the second amended complaint stated a cause of action as to all defendants. No cross appeal has been taken from the refusal to dismiss count one as to the McMullen defendants or the Henley defendants. Accordingly, the issues for our determination relate to the propriety of the dismissal of count one as to Joseph H. Smith and the dismissal of count two as to all defendants.

We conclude that, as to count one, it was error to dismiss Mr. Smith. It is axiomatic that in considering a motion to dismiss a complaint all facts properly pleaded must be taken as true (for the purpose of that motion), the trial judge is restricted to the allegations of the complaint and the complaint should not be dismissed if the facts alleged therein would establish, if proved, a prima facie case for relief. (Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974); Thomas v. Rollins, 298 So.2d 186 (Fla. 1st DCA 1974); Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975); and Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975).)

The second amended complaint alleges that the defendant minor, Robert Henley, “is under the protection, custody and control of and resides with Dyna Henley, his natural mother, and Joseph H. Smith, his step-father or custodian or guardian, or person in ‘loco parentis’ * * * ” and that “said Robert Henley and his said mother are members of the household of Joseph H. Smith.”

It was not the prerogative of the trial court to determine, on a motion to dismiss, the truthfulness of those allegations. The able trial judge apparently was of the view that a prima facie case had been alleged against Mrs. Henley, the minor’s mother, otherwise the complaint should have also been dismissed as to her. We agree. (See Gissen v. Goodwill, 80 So.2d 701 (Fla.1955); Weigl v. Ombres, 106 So.2d 614 (Fla. 2nd DCA 1958); Restatement of the Law, Second, Torts, Second, § 316; and Annotation at 68 A.L.R.2d 782.) There is no difference, so far as common-law tort liability is concerned, between one in loco parentis and a natural parent. (See Weigl v. Ombres, supra) [which was decided on summary judgment and not motion to dismiss] and King v. Dade County Board of Public Instruction, 286 So.2d 256 (Fla. 3rd DCA 1973), cert. den., 294 So.2d 89 (Fla.1974).) If Smith could have been held liable under the allegations of the complaint had he been the natural parent of Robert Henley, then the same allegations are effective to impose liability as a person in loco parentis.

There is yet another approach to Mr. Smith’s liability under the allegations of count one of the dismissed complaint. Stripped to its essentials, that count of the complaint alleges that Smith (and the other adult defendants) knew that Robert Henley customarily, frequently and repeatedly used the BB gun, a dangerous instrumentality, owned by Robert McMullen without any adult supervision in a dangerous and negligent manner; that Smith (and the other adult defendants) knew, or in the exercise of reasonable care should have known, that Robert did not use good judgment in the handling of said gun; that with the consent, knowledge and permission of all of the other defendants (including Smith) the minor Henley borrowed said gun from the minor McMullen and used same without supervision at the premises of Smith; that the minor Henley “negligently, willfully, wantonly and with gross disregard for the safety of plaintiff Mark J. Wyatt, aimed and fired said air rifle at Mark J. Wyatt, striking him in the left eye, thereby causing him permanent injury and damage.” As already above stated the complaint also alleged that the minor Henley was under the custody and control of Smith (and the child’s mother Dyna Henley).

Those allegations are sufficient to charge Smith with negligence: Not vicarious responsibility for the acts of another, but with primary negligence because of his own actions and omissions. As stated in 59 Am. Jur.2d, Parent and Child, § 132:

“ * * * whether the defendant is a parent or another, his liability, if any, is for the consequences of his own negligence, not a vicarious -responsibility for the acts of the child.”

The next section of the same text recites:

“Although there have been some decisions in which this principle was not recognized, the general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence. Thus, a father may be held liable where he knows that his children are persisting in a course of conduct likely to result in injury to another. Failure to restrain the child, it is said, amounts to a sanction of or consent to his acts by the parent. But ability to control the child, rather than the relationship as such, is the basis of the parent’s liability, and it has accordingly been recognized that, under appropriate circumstances, similar liability might fall on a nonparent who had such ability but negligently failed to exercise it. * * " (59 Am.Jur.2d, Parent and Child, § 133, citations omitted)

An excellent annotation on the subject appears in 68 A.L.R.2d, commencing on page 782. In that annotation the author states:

“Considerable conflict, both jurisdictional and intrajurisdictional, appears among the cases which have considered the questions under annotation.
“The fundamental common-law rule that a parent is not responsible for the tort of his child has frequently been referred to by the courts in considering the problem. However, the cases which take the view that a parent may be liable for injuries inflicted by his minor child with a gun which the parent has permitted him to have, or left accessible to him, are not in conflict with that general rule, since the liability of the parent in such cases is based upon his own negligence in his care and control of the gun under the particular circumstances of the case.
“Thus it appears that the rules applicable in actions for negligence in permitting a child to have a gun or access thereto are the same whether the action is against the child’s parent or against some other person. * * *” (68 A.L.R.2d 785) ******
“In the majority of cases in which one’s responsibility for permitting a child to have a gun or leaving a gun accessible to a child has been considered it has been held that prima facie negligence is established by a showing that defendant permitted an inexperienced or irresponsible infant to have a dangerous gun or that he left such a gun in a place where he should have foreseen that it would come into the hands of such a child.” (68 A.L.R.2d 786)
* * ¡jí ijt *
“In order to impose liability for permitting a minor to have a gun it must of course be established that the person sought to be charged knew that the minor had the gun or might obtain it.” (68 A.L.R.2d 789)
* * * * * *
“A defendant will ordinarily be held liable for injuries inflicted by a minor with a gun if it is shown that he permitted the minor to have a gun, knowing that the minor was of a reckless or malignant disposition.” (68 A.L.R.2d 793)
sf: * * s|« sfc
“Permitting a child to remain in possession of a gun after knowledge of his reckless use thereof may be found negligence upon which liability be imposed.” (68 A.L.R.2d 794)

In Cashell v. Hart, 143 So.2d 559 (Fla. 2nd DCA 1962), our sister court, relying neither upon the dangerous instrumentality doctrine nor statutory liability, but citing Gissen v. Goodwill, supra, held it error to have dismissed a complaint against the owner of a boat which he was alleged to have known (or should have known) would be used by an inexperienced and incompetent operator.

We, of course, express no view as to whether appellants will be able at trial to prove the allegations of their complaint. We do, however, hold that count one states a cause of action against appellee Smith and that appellants are entitled to an opportunity to present their proof.

By count two of the second amended complaint the plaintiffs sought to impose upon the defendants strict liability under F.S. 790.22. The learned trial judge dismissed that count in reliance upon Williams v. Youngblood, 152 So.2d 530 (Fla. 1st DCA 1963). We agree that the holding there is dispositive as to count two of the second amended complaint sub judice and that the learned trial judge did not err in its application.

Another issue which, though perhaps premature now, will surely arise when and if this case ultimately proceeds to trial relates to the propriety of an instruction to the jury relative to F.S. 790.22. For guidance of the able trial judge, and the attorneys for the respective parties, we express the view that if the evidence adduced at trial be such as to permit the jury to find a violation of F.S. 790.22(1) then as to any claim against any adult defendant responsible for the welfare of Robert Henley, plaintiffs are entitled to an instruction to the jury relating to violation of such statute if there is also evidence from whence the jury could legally find that such adult defendant responsible for the welfare of said child knowingly permitted such child to use or have in his possession said BB gun in violation of subsection (1) of said statute. (See de Jesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973) and Instruction 4.9 Florida Standard Jury Instructions)

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J., and MILLS, J., concur.


text:
    Jane L. JOHNSON, as Administrator of the Estate of Trady Johnson, Jr., Deceased, Petitioner, v. GENERAL MOTORS CORPORATION, a Foreign Corporation, Respondent.
    No. 77-832.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1977.
    Cone, Owen, Wagner, Nugent, Johnson & McKeown and Larry A. Klein, West Palm Beach, for petitioner.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks review of an interlocutory evidentiary order entered in a case previously cognizable at law. In a trilogy of cases, each authored by Judge Downey, this court has unequivocally held that interlocutory orders in cases previously cognizable at law are reviewable by certiorari only when it clearly appears there is no full, adequate and complete remedy available by appeal after final judgment. The fact that it would be expedient from the standpoint of one or both of the parties to have the propriety of the interlocutory order reviewed by writ of certiorari is not sufficient to warrant granting that writ. Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975); and Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

If this case goes to trial petitioner may prevail even though the disputed evidence is admitted. In that event it would not be necessary for this court to review the decision of the trial court excluding the evidence. On the other hand, if respondent should prevail, petitioner would have a full, adequate and complete remedy available by appeal after final judgment.

CERTIORARI DENIED.

ALDERMAN, C. J., DAUKSCH and LETTS, JJ., concur.


text:
    GUARDIAN MORTGAGE INVESTORS and Charter Advisory Company, Appellants, v. URBAN MEDICAL SERVICES, INC., a Georgia Corporation, Appellee.
    No. GG-186.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1977.
    Rehearing Denied Nov. 14, 1977.
    James H. Post of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appellants.
    Dana G. Bradford, II, and Alan Chipper-field of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   PER CURIAM.

Having deliberated the briefs and arguments of counsel, we reconsider our previous order denying motion to dismiss the interlocutory appeal and determine we are without jurisdiction to entertain this appeal.

THE INTERLOCUTORY APPEAL IS DISMISSED.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.