author: NATHAN, Judge.

text:
    Victor JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-719.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Special Asst. Atty. Gen., for appel-lee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Victor Jones, defendant in the trial court, was charged with first degree murder in that he proximately caused the death of Kristi Lynn Stidham by unlawfully distributing heroin to her in violation of Section 782.04(l)(a), Florida Statutes, (1975). He was convicted by a jury of manslaughter, and sentenced to a term of ten years imprisonment. By this appeal he urges that the trial court committed error in failing to exclude toxicological evidence offered by the medical examiner as to the cause of death, in admitting into evidence certain admissions made by the defendant, and in denying the defense’s motions for acquittal and new trial. A careful review of the record, the exhaustive briefs offered by both parties to this appeal, and the applicable law leads us to conclude that the decisions of the trial court must be affirmed in all respects.

The victim, the defendant, and several others, including one Phillip Calver, a major state’s witness at trial, had been partying at a local lounge until the wee hours of the morning of October 29, 1975. After they dispersed, Jones returned to his home and went to sleep. Testimony of witnesses to whom defendant • admitted the following facts revealed that Jones was awakened shortly thereafter by Ms. Stidham and a third man. They asked him to “cop some dope” for them, for which they gave him the money. Jones procured some “junk or stuff” and returned to his home, where all three injected themselves. Thereafter, Ms. Stidham became unconscious and appeared to have stopped breathing. Calver and two others, who had been summoned to Jones’ home, rushed her to Mercy Hospital where one of the three informed hospital attendants that Ms. Stidham had overdosed on heroin. Efforts to resuscitate her failed, and she was pronounced dead about twenty minutes later.

Both the police and the medical examiner were notified of her death. Her body was quickly taken to the medical examiner’s office where an autopsy was performed, which, along with subsequent toxicological tests provided a basis for the medical examiner’s determination that the cause of death was “acute narcotism.”

After an investigation, Jones was charged with murder. In May of 1976, after delays related to determinations of defendant’s competency, the public defender was appointed to defend him, and filed a motion for discovery. A portion of the original materials upon which toxicological tests had been performed by the medical examiner’s office had become unavailable. In September, 1976, nearly a year after the autopsy and toxicological tests had been performed, defendant filed a motion to suppress testimony related to the toxicological tests.

The trial judge treated the motion to suppress as a motion to exclude testimony and held several comprehensive hearings on the issue, after which he denied the motion, concluding:

“We’re talking about a few minor particles of the total tangible evidence .
* * * * * *
[O]n the basis of what has been presented and on the basis of the law, the State, number one, acted in good faith, and number two, the procedures . used in this particular case were reasonable. . . . [T]he defendant has, by virtue of the ability to cross examine the experts themselves and to bring out the weakness in the State’s case, in a sense, and to bring out to the jury that they disposed of the items and the reasons why.
This defendant’s rights [sic] to due process of law is adequately protected, and also, the defendant’s right to confront the witnesses and evidence against him is adequately protected.
So I’m going to deny the motion.”

Trial was had in January of 1977, and this appeal ensued. Additional facts pertinent to each of defendant’s arguments will be presented as necessary in discussing these contentions.

Defendant first argues that the admission of the medical examiner’s toxicological findings, when certain of the original materials used were no longer available to the defense for independent testing, deprived him of the full protection of Florida Rule of Criminal Procedure 3.220, and of his rights to confrontation and due process. We note initially that although the defense moved to suppress this evidence prior to trial, no specific objection was raised at trial to the admissibility of either the toxicological test results or the testimony as to the cause of death. Failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of the right to appellate review of an alleged error, even though issues of constitutional dimension are claimed to exist. O’Berry v. Wainwright, 300 So.2d 740 (Fla. 4th DCA 1974); Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1967). See a iso Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Nevertheless, because of the importance of the issues raised by defendant, we deem it advisable to reach the question of whether, had contemporaneous objection been made, the state’s inability to produce a portion of the original organic materials used by the medical examiner’s office for toxicological tests would have necessitated reversal when (1) the unavailable materials were no longer extant either because they were consumed in the testing process or inadvertently discarded by the medical examiner’s staff; (2) considerable material was preserved which would have made re-testing possible although less satisfactory and probably less definitive; (3) the individuals who had conducted the tests were available for cross examination; and (4) most importantly, the procedures utilized by the medical examiner were scientifically sound and reasonably calculated to balance the interests of the state and any potential defendant.

The key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the state’s failure to produce the requested evidence. Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977); Smith v. State, 305 So.2d 868 (Fla. 3d DCA 1975); Pizzo v. State, 289 So.2d 26 (Fla. 2d DCA 1974). If the defense were prejudiced, Florida law would require reversal whether or not the state had acted in good faith. Holman, supra; Pizzo, supra. But where prejudice is not shown by the non-compliance, reversal is not warranted. Richardson v. State, 246 So.2d 771 (Fla.1971); Kruglak v. State, 300 So.2d 315 (Fla. 3d DCA 1974). Relevant evidence should not be excluded from the jury unless no other remedy suffices. Cooper v. State, 336 So.2d 1133 (Fla.1976); Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972); Holman, supra.

In the instant case, the medical examiner’s conclusions as to cause of death were based on a limited history of the deceased, the past experience of the physician performing the autopsy, the findings discovered through autopsy, and the findings of toxicological tests performed on various tissues and bodily fluids of the victim shortly after death occurred. The pathologist who performed the autopsy testified that he would have concluded that the cause of death was an overdose of heroin even if he had not had the benefit of the toxicological findings. In other words, this evidence was merely cumulative and corroborative, not determinative.

Moreover, the defendant never availed himself of the opportunity to conduct independent tests on the material which was preserved to show either that there was a reasonable possibility that the cause of death was other than as determined by the medical examiner, that the material available was inadequate to make an independent determination of the cause of death, or that the missing material was crucial. Neither did defendant seek to have an independent expert review the original notes and reports preserved by the medical examiner’s office.

We conclude that defendant has failed to establish the existence of any prejudice to his cause by the admission into evidence of conclusions derived from the scientifically sound and procedurally reasonable course of action followed by the medical examiner’s office.

It is not necessary, in all instances, to produce original physical evidence in order to produce testimony about it. Roberts v. State, 164 So.2d 817 (Fla.1964); Smith v. State, 305 So.2d 868 (Fla. 3d DCA 1975). This is especially true when the original object from which derivative evidence was adduced was not available to the state at the time of trial. Baum v. State, 353 So.2d 936 (Fla. 3d DCA 1978); Butler v. State, 348 So.2d 627 (Fla. 3d DCA 1977).

Defendant nonetheless contends that this court’s decision in Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971), cert. dischgd., 280 So.2d 673 (Fla.1973), controls the instant situation. In Johnson, the particular bullet which had killed the victim was unavailable to the defense. This court found reversible error in the trial court’s denial of defendant’s motion to suppress the testimony of a ballistics expert who stated that the markings on the fatal bullet corresponded to those on defendant’s pistol. The Johnson Court noted:

“The state may not by the simple statement that they have ‘lost the physical evidence’ prevent the exercise of [an important procedural right] and then use the [evidence] against the defendant.”

It further stated:

“[T]he evidence given by the ballistics expert was in no way cumulative and was so important in the case against this appellant that its admission was prejudicial error.” 249 So.2d 470 at 472.

We have already noted that the evidence in the instant case was cumulative and its unavailability was not demonstrably prejudicial. We add that Johnson is distinguishable in other ways as well. A bullet is not consumed in the testing process, nor does it deteriorate over a short term as organic matter may. Preservation of a single bullet does not present the storage problems inherent in preservation of a quantity of organic material. Moreover, in the case at bar the prosecutor’s office did not “lose” the evidence. The medical examiner’s office made a reasonable effort to preserve as much of it as possible.

Some of the preserved material could have been utilized to perform independent tests had the defense made the effort. The fatal bullet in Johnson was the only evidence the defense could have used to confirm the expert’s conclusions. The object of the test in Johnson was to link a particular defendant with a particular crime. The object of the tests in the instant ease was to determine a cause of death, not to establish criminality at all. The Johnson decision is not controlling in the case before us.

In fine, where the procedures used by the medical examiner’s office were reasonably calculated to preserve important evidence in the event the need should arise to protect the interests of either the state or a potential defendant, and where no significant prejudice was shown to have proceeded from the absence of the requested evidence, we find no denial of the protections of either Rule 3.220, the right to confrontation, or the right to due process.

The essence of defendant’s next argument is that his extra-judicial statements admitting that he had procured heroin for the deceased were erroneously admitted into evidence for two reasons: (1) the corpus delicti had not been established by pri-ma facie evidence independent of defendant’s admissions prior to their introduction into evidence; and (2) the state never adduced independent evidence of the homicide sufficient to admit these extra-judicial statements into evidence at all.

As to the first point, while it is always preferable that corpus delicti be established by independent evidence before admitting into evidence a defendant’s confession or admission, it is not necessary that proof of corpus delicti be complete in every detail at the time a defendant’s confession is introduced. If an extra-judicial confession or admission is admitted prior to establishment of the corpus delicti by independent evidence, and additional independent evidence is later introduced which would have justified the admission of such statements, the technical error in prematurely admitting them is cured. County of Dade v. Pedigo, 181 So.2d 720 (Fla. 3d DCA 1966); Smith v. State, 135 Fla. 835, 186 So. 203 (1939); Parrish v. State, 90 Fla. 25, 105 So. 130 (1925); Holland v. State, 39 Fla. 178, 22 So. 298 (1897).

The second point is the more crucial. Defendant asserts that insufficient evidence was adduced to prove the corpus delicti of the crime at all absent the evidence provided by Jones’ admissions. The record belies this assertion.

The corpus delicti of a homicide consists of three elements: the fact of death, the criminal agency of another, and the identity of the victim. The first and third elements are not at issue here. In this case, the second element requires a prima facie showing that a) heroin was distributed, b) by a person at least 18 years old, and c) the user died as a proximate result of this distribution. Section 782.04(1)(a), Florida Statutes (1975).

At the time the state sought to introduce Jones’ admissions, the medical examiner had testified that the victim died from an overdose of heroin and that heroin had been injected a few hours before death. Phillip Calver had testified that he found Ms. Stid-ham in defendant’s room, her breathing apparently stopped, her lips discolored, with bloody foam around her nose and mouth. Calver also had testified that defendant implored him to “Get her out of here!” lest Jones’ mother discover the situation. It was later established that defendant was over eighteen.

In order for a court to admit a confession or admission the state must prove, independently of the confession, that the crime charged has occurred; that is, the state must prove all the elements of the corpus delicti of the crime charged. Such proof need not be by direct evidence. It may be adduced in the form of circumstantial evidence. State v. Allen, 335 So.2d 823 (Fla.1976); Frazier v. State, 107 So.2d 16 (Fla.1968); Holland v. State, supra.

Most critical to an understanding of the nature of the proof required to establish corpus delicti is the fact that the state need establish only a prima facie showing of all the elements thereof in order for a confession to be admissible. Clark v. State, 229 So.2d 877 (Fla. 2d DCA 1969); La Salle v. State, 187 So.2d 407 (Fla. 3d DCA 1966); Sciortino v. State, 115 So.2d 93 (Fla. 2d DCA 1959). “Prima facie” is defined as: “At first sight; on the first appearance; so far as can be judged from first disclosure; . .. a fact presumed to be true unless disproved by some evidence to the contrary.” Black’s Law Dictionary, 1353 (4th ed. 1968). Such is the state’s preliminary burden. It differs substantially from the requirement that the state establish a defendant’s guilt “beyond a reasonable doubt” before he can be convicted of the crime charged. See State v. Allen, supra.

We agree with the trial court that evidence showing the deceased had died from an overdose of heroin, that heroin had been injected shortly before death occurred, and that she was found dying in the company of a person over eighteen who urgently sought her removal from the premises was sufficient to establish a prima facie showing that heroin which was distributed to her by a person over eight resulted in her death. As the Florida Supreme Court has stated:

“Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obliged to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.”

State v. Allen, supra, at 826.

The corpus delicti having been shown, prima facie, by substantial circumstantial evidence, the statements of the defendant were admissible and could then be considered by the jury along with the other evidence presented. Vaillancourt v. State, 288 So.2d 216 (Fla.1974); Mitchell v. State, 45 Fla. 76, 33 So. 1009 (1903); Brown v. State, 44 Fla. 28, 32 So. 107 (1902).

Defendant’s final point on appeal, which contests the sufficiency of the evidence upon which his conviction was based, is deemed to be without merit.

Affirmed.

      . In 1975, § 782.04(l)(a) defined first degree murder, in pertinent part, as: “The unlawful killing of a human being . which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user.”

      . There is some conflict in the testimony as to whether defendant actually injected Ms. Stid-ham or whether she did so herself. All evidence on this point was derived from admissions defendant made to three different witnesses, two of whom indicated that Ms. Stid-ham had injected herself.

      . The medical examiner’s office is required by law to determine the cause of death in a variety of situations. Ch. 406, Florida Statutes (1975). The tests run by the medical examiner were designed to determine the cause of death, not to establish criminality or the lack of it, or to link any individual with a crime. The defense conceded that there was no evidence the medical examiner knew of any impending criminal prosecution at the time the autopsy and toxicological tests were performed, and that the medical examiner’s office had no way of knowing at that time whether or not their findings would result in a criminal prosecution.

      . We note that it was not necessary to show that this particular defendant had distributed the heroin, only that it was reasonably probable that the heroin had been distributed by a person 18 or over, and that the distribution had resulted in the victim’s death.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Dominic A. BRETTI, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. GG-292.
    District Court of Appeal of Florida, First District.
    July 20, 1978.
    As Amended Aug. 21, 1978.

      William N. DeCarlis, of Bates & DeCarlis, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The issue before us is whether the Division of Corrections may forfeit all gain time earned by and extra gain time allowed a prisoner without notice or hearing where the State charges the prisoner with escape but nolle prosses the charge.

Bretti left confinement at a correctional center in Florida. He was later arrested in another state and returned to Florida. The State charged him with escape but subsequently nolle prossed the charge. Without notice or hearing, the Division of Corrections forfeited Bretti’s gain time and extra gain time. He petitioned the trial court for a writ of habeas corpus which was denied. He appeals.

Section 944.28(1), Florida Statutes (1971), provides that the Division shall, without notice or hearing, declare a forfeiture of all gain time and extra gain time allowed a prisoner when the prisoner escapes.

Section 944.28(2)(a) and (b), Florida Statutes (1971), states that the gain time and extra gain time shall be subject to forfeiture if the prisoner unsuccessfully attempts to escape but he shall be entitled to notice and hearing. In view of this section, it is clear that Section 944.28(1) applies only when the prisoner is convicted of escape. Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972). By this construction, a prisoner receives a jury trial, therefore, is afforded due process.

In the case before us, the prisoner was not convicted of escape, thus, due process requires that he be afforded an administrative hearing to contest the charge of escape. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Section 944.-28(1) and (2) affords a prisoner due process as to all other statutory and administrative charges.

We reverse the order appealed and remand this case to the trial court with instructions to remand to the Division of Corrections for appropriate administrative proceedings following the guidelines set forth in Section 944.28(2)(b).

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


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. L. B. F., a child, Appellee.
    No. 78-137.
    District Court of Appeal of Florida, Second District.
    July 21, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, Martha J. Cook and Eula T. Mason, Asst, Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and David J. Abbey, Asst. Public Defender, St. Petersburg, for appellee.
   PER CURIAM.

Because of the factual circumstances presented here we hesitate to affirm the order of the trial court discharging appellee, L.B.F., a child, for want of speedy trial, however, the rule is explicit in its terms, applies to all equally, and to be effective must be enforced. Therefore, we affirm.

AFFIRMED.

BOARDMAN, A. C. J., OTT, J., and PIERCE, WILLIAM C., J. (Ret.), concur.

      . Fla.R.Juv.P. 8.180(b) Speedy Trial provides:
      If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.


text:
    Clemencia GONZALEZ, Appellant, v. Bernardo De La C. MORENO and Mary Thompson Bowman, Appellees.
    No. 77-2292.
    District Court of Appeal of Florida, Third District
    July 25, 1978.
    Carlos Lidsky and Manny Crespo, Coral Gables, for appellant.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The plaintiff appeals a summary final judgment for the defendant in an automobile negligence case. Plaintiff was a passenger in defendant’s automobile. The summary judgment for the driver was, proper because the deposition and answers to interrogatories conclusively showed that the collision was caused by another driver who ran a red light. Plaintiff came forward with no evidence to create a genuine issue of material fact. Cf. Byrd v. Leach, 226 So.2d 866 (Fla. 4th DCA 1969).

Affirmed.


author: HOBSON, Judge.

text:
    Harvey RANDOLPH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1836.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant appeals his sentence imposed under Florida Statute 775.084. The record before this court shows that the appellant was convicted of a felony within five years prior to the committing of the felony for which he was convicted and sentenced in this case.

Appellant contends that the prior felony conviction was reversed by this court and, therefore, he received an illegal sentence under Florida Statute 775.084. The record before us is completely devoid of any disposition of the prior felony on appeal. Therefore, appellant is attempting to collaterally attack the sentence which from this record is valid.

The appropriate method to collaterally attack a sentence which appears from the record to be valid is by motion under Fla. R. Crim. P. 3.850.

Affirmed without prejudice to file a motion under Fla. R. Crim. P. 3.850.

GRIMES, C. J., and RYDER, J., concur.

      . Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976).


text:
    Charles Lee RADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 78-241.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    Jack 0. Johnson, Public Defender, Bar-town, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Charles Lee Radford filed this appeal from his conviction and sentence for the felony offense of battery of a law enforcement officer under Section 784.07(2), Florida Statutes (1977). He contends that the information filed against him charged only simple battery, a misdemeanor under Section 784.03, Florida Statutes, and, therefore, the circuit court did not have jurisdiction over the offense, and the judgment of conviction of a felony and eighteen-month sentence are void. We agree and reverse.

The information in pertinent part charged appellant with “BATTERY ON POLICE OFFICER” in that he “did unlawfully commit battery upon THOMAS BOY-SEN, a Deputy Sheriff of Charlotte County, while acting in the capacity of his official duties, by actually and intentionally touching or striking said person against said person’s will, in violation of Florida Statute 784.03.” The felony battery statute is 784.-07(2) which provides in pertinent part as follows: “Whenever any person is charged with knowingly committing . . . battery upon a law enforcement officer . while the officer ... is engaged in the lawful performance of his duties, the offense for which the person is charged shall be ... a felony of the third degree.” (Emphasis supplied). The misdemeanor battery statute is 784.03. In pertinent part 784.03 reads as follows: “(1) A person commits battery if he: (a) Actually and intentionally touches or strikes another person against the will of the other; or (b) Intentionally causes bodily harm to an individual. (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree . . . .”

It is quite clear that the language of the information under which appellant was charged does not track the statutory language of Section 784.07(2). An information must allege each of the essential elements of a crime to be valid; no essential element should be left to inference. State v. Dye, 346 So.2d 538 (Fla. 1977). In addition the information concludes with the usual reference to the pertinent statutory section which in this case alleges “in violation of Florida Statute 784.03,” which is the misdemeanor statute.

Since the information charged a misdemeanor and not a felony, the circuit court did not acquire jurisdiction over the subject matter, and the judgment and sentence against appellant are void. Although the defect was not raised in the trial court, being jurisdictional it cannot be cured by waiver or consent. Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla. 1973).

Accordingly, the judgment and sentence herein are vacated and the cause is reversed and remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., BOARDMAN and OTT, JJ., concur.


text:
    William Harrison FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-389.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Reversed and remanded for resentencing. See Brown v. State, 354 So.2d 452 (Fla.2d DCA 1978); Mays v. State, 349 So.2d 792 (Fla.2d DCA 1977).

GRIMES, C. J., and HOBSON and RYDER, JJ., concur.


author: OTT, Judge,

text:
    Robert R. FRANK, as Trustee, Appellant, v. LAND SERVICES, INC., Land Services Sebring, Inc., Orange Blossom Estates, Inc., Anna Devinsky, Dian Devins, and Imperial Corporation, Appellees.
    No. 78-514.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.

      Peter Strelkow, of Frank, Strelkow & Gay, North Bay Village, for appellant.
    J. Hardin Peterson, Jr., of Peterson, Myers, Craig, Crews, Brandon & Mann, Lakeland, for appellees.
   OTT, Judge,

We reverse that portion of the order of the trial court fixing and allowing attorney’s fees to Mr. J. Hardin Peterson, Jr. and remand the case for further proceedings in order to delete from such award any sums included therein for services rendered on appeal.

SCHEB, A. C. J., and DANAHY, J., concur.

      . While Section 59.46, Fla.Stat. (1977) now provides for attorney’s fees to the prevailing party on appeal, that provision was not in effect at the time the trial court awarded fees in this case. See Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla.1974).


author: BOYER, Judge.

text:
    STATE of Florida, Appellant, v. Gregory Dean BRADLEY, Appellee.
    No. II-438.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1978.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellee.
   BOYER, Judge.

The State (appellant here) appeals an order dismissing an information and case against defendant (appellee here) on the grounds that the case was a juvenile one not subject to indictment for adult prosecution.

A petition for detention was filed against defendant alleging shoplifting (case no. 77-710-CJ) and possession of more than five grams of cannabis (case no. 77-648-CJ). Subsequently, a delinquency petition was filed against defendant in case no. 77-648-CJ. The state moved to transfer the cause to circuit court and the motion was granted. Thereafter, the state filed an information against defendant charging him with possession of more than five grams of cannabis. However, the state did not seek to have defendant tried as an adult on the shoplifting charge (case no. 77-710-CJ). In a separate proceeding, a juvenile judge adjudicated defendant delinquent on the shoplifting charge and committed him to the Youth Services Program. As a result of that adjudication of delinquency and com-mittment to the Youth Services Program, defendant moved to dismiss the cannabis charge against him on the grounds that implicit in the committment to the Youth Services Program was at least the belief or fact that the defendant was amenable to juvenile treatment and that therefore, the order waiving juvenile jurisdiction was improper and the case didn’t belong in circuit court. The trial court agreed and ordered the cannabis case dismissed on the grounds that the intervening juvenile referral divested the circuit court of jurisdiction over defendant as an adult. The state seeks reversal of that order.

We reverse.

The intervening juvenile referral in the shoplifting case did not automatically divest the circuit court of jurisdiction over defendant as an adult in the cannabis case. This court recognizes that the adult division of the circuit court may reconsider an order waiving juvenile jurisdiction where evidence is present to show reasonable prospects for rehabilitation in the juvenile system. However, the only evidence present in this case showing prospects for rehabilitation is the defendant’s committment as a juvenile on the shoplifting charge. Such evidence is relevant on reconsideration but such evidence does not require the adult division of the circuit court to divest itself of jurisdiction over defendant on a related charge.

Accordingly, this case is remanded to the circuit court with directions that it reconsider its decision in light of this court’s holding here that defendant’s committment as a juvenile on the shoplifting charge does not require the adult division of the circuit court to divest itself of jurisdiction over defendant on the cannabis charge.

It is so ordered.

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


text:
    Alberto NAVARRO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1766.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Benton & Mathews and Margaret A. Benton, Perrine, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Hunt v. State, 306 So.2d 180 (Fla. 2d DCA 1975).


text:
    Alan J. DAVIS, d/b/a Davis Engineers, Appellant, v. MIAMI RUG COMPANY, Philip Solomon and Sam P. Broady, Inc., Appellees.
    No. 78-390.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant,
    Bradford, Williams, McKay, ..Kimbrell, Hamann & Jennings and Patricia H. Thompson, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Door-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 237 (Fla. 3d DCA 1972).


author: PER CURIAM

text:
    Willie REMBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1380.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Willie Rembert, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAYERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: DANAHY, Judge.

text:
    Robin E. PACK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1852.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Jack 0. Johnson, Public Defender, and gusan G. Sexton, Asst. Public Defender, Bartow, for appellant,
    . _ _ „ , Robert L- Shevm- Atty- Gen" Tallahassee, an<^ William I. Munsey, Jr., Asst. Atty. Geih’ Tampa, for appellee,
   DANAHY, Judge.

The motion for rehearing by appellee is granted in part and it is therefore ORDERED that the opinion filed by this court on June 28, 1978 is withdrawn and the following opinion is substituted in lieu thereof.

Appellant asks us to reverse his conviction for third degree murder because much of the evidence introduced against him was in violation of the Williams Rule. After extensive examination of the briefs, the record, and additional research materials, we conclude that we must grant his request.

The Sarasota Grand Jury indicted appellant on a charge of first degree murder in the death of Hazel Brown. At trial, the state developed its case on the theory of felony murder. The testimony of four witnesses, two bystanders and two companions of appellant, demonstrated that Mrs. Brown, who was eighty-six years old, was walking home from a store with a bag of groceries in her arms when a car pulled up beside her. Appellant stepped quickly from the car and grabbed Mrs. Brown’s purse. He then returned to his seat and the car drove off. In the scuffle over her bag, Mrs. Brown fell and was injured. She subsequently died as a result of these injuries.

Appellant took the stand and testified in his own behalf. He admitted snatching the purse from Mrs. Brown, but he said that he never touched her and that she was still standing when he got back into the car.

In addition to the evidence of the crime with which it charged appellant, the state presented evidence of two separate criminal episodes in which appellant was involved. Appellant’s two companions, Sharon Kent and Elizabeth Poppell, testified that just prior to the purse snatching incident, appellant had attempted to steal money from an elderly resident of the retirement community where the two girls worked. Elizabeth Poppell and her husband also testified that earlier that same morning, appellant forged a check which he had found at a laundromat and attempted unsuccessfully to cash it at several banks.

Appellant objected to the introduction of the testimony concerning the retirement center and check cashing incidents, and the trial court overruled his objections. While we have very serious reservations about the injection of the retirement community incident into the trial, we will not consider it further because we hold that the introduction of evidence of the check cashing incident was error.

We begin our analysis as we do with all similar situations with Williams v. State, 110 So.2d 654 (Fla.1959). In Williams, the supreme court held that the state may introduce evidence of collateral crimes when it is relevant to any issue at trial other than character or propensity to commit crime. In other words, collateral crimes may be used to prove such things as identity, motive, intent, or guilty knowledge, or to show a continuing scheme or plan or a lack of accident or mistake. Whiteman v. State, 343 So.2d 1340 (Fla.2d DCA 1977); Green v. State, 190 So.2d 42 (Fla.2d DCA 1966).

Turning to the case at bar, we find that the introduction of the testimony concerning the check cashing incident was a flagrant violation of the Williams Rule. The only issues to which this evidence could have had any conceivable relevance were appellant’s character and propensity to commit crimes. Accordingly, the testimony was inadmissible.

It is clear that what we have said mandates a reversal. This is an unfortunate result in light of the fact that the evidence against appellant was so clear. However, we cannot condone prosecutorial overkill. The state may only prosecute a defendant for a crime with which it has charged him. As the court said in Lucas v. State, 257 So.2d 261, 263 (Fla.1st DCA 1971),

In this jurisdiction a citizen accused of committing a crime, no matter how heinous or reprehensible it may be in the eyes of society, is entitled to be informed as to the nature of the charge against him and afforded an opportunity to prepare his defense prior to being put to trial.

We reverse appellant’s conviction and remand the case for a new trial.

HOBSON, Acting C. J., and SCHEB, J., concur.


text:
    Ernest NORMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1160.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Joseph R. Atter-bury, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Átty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant was convicted and sentenced to a ten-year term of imprisonment for delivery of heroin and to a five-year term of imprisonment for possession of heroin, the sentences on each count to run concurrently.

On appeal we conclude that only one point raised by appellant has merit. The five-year sentence on the possession of heroin count must be reversed because it arises from the same transaction or occurrence as the count charging delivery of heroin. As the defendant was convicted of two facets or phases of the same transaction, he could only be sentenced for the higher of such offenses, that of delivery of heroin. Harris v. State, 358 So.2d 858 (Fla. 4th DCA, opinion filed May 16, 1978); Wright v. State, 348 So.2d 633 (Fla. 3d DCA 1977); Jones v. State, 265 So.2d 514 (Fla. 4th DCA 1972).

Accordingly, since no other reversible error has been demonstrated, the judgments as to the two counts are affirmed, but the sentence for possession of a controlled substance is vacated and set aside.

CROSS, DAUKSCH and LETTS, JJ., concur.


text:
    UNIVERSAL HEALTH SPAS, INC. and Western World Insurance Company, Inc., Petitioners, v. Paul Alan RACZKOWSKI, Respondent.
    No. 77-2665.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.

      Joe N. Unger, Miami, and Pomeroy, Betts & Wiederhold, Fort Lauderdale, for petitioners.
    Ronald Sales, Palm Beach, for respondent.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and MOORE, JJ., concur.


author: BOYER, Acting Chief Judge. SMITH, Judge,

text:
    Charlie West PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. II-394.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Acting Chief Judge.

Appellant pleaded nolo contendere to a charge of possession of a concealed weapon reserving his right to appeal the denial of his motion to suppress, asserting that since there was no probable cause to believe that he was armed with a dangerous weapon, the frisk of his person was improper.

The testimony at the hearing on the motion to suppress revealed that in the early afternoon police officers received a call concerning a shoplifting of three packs of Colt .45 Malt Liquor at a convenience store. Upon arrival at the scene, the cashier provided the officer with a description of a young black male shoplifter. Another individual reported that a young black male had exited the area in the company of another black male, specifically describing the ear. A short distance from the scene, a vehicle matching the description given by the witness was located and stopped by' Officer Crosby. Crosby could readily ascertain that the passenger of the vehicle appeared to fit the description given of the alleged shoplifter. After the vehicle stopped, both the driver (appellant) and the passenger got out. Crosby observed in the back seat two six-packs of Colt .45 Malt Liquor. Because Officer Crosby felt that “all passengers or any persons that were in the area or associated with the particular suspect that might have done the crime could be a threat to [his] person”, he conducted a pat-down search of each individual. A .25 caliber pistol was found in appellant’s left rear pocket. Although prior to the search Officer Crosby had observed a slight bulge in appellant’s pocket, he indicated that “it [the bulge] was in the place a wallet might be at.”

P.S. 901.151, recognizes the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969). In that case,the Supreme Court of the United States held that a police officer has a narrowly drawn authority to conduct a reasonable., search for weapons where he has reason to believe that he is dealing with an armed and dangerous individual, even though probable cause to arrest such individual is absent. The issue was formulated as follows: “whether a reasonable prudent man in the circumstances, would be warranted in the belief that his safety or that of others was in danger.” (Id. at 27, 88 S.Ct. at 1883.) The court there further noted that due weight should be given to the specific reasonable inferences which the officer is entitled to draw from the facts in the light of his experience.

' Florida courts have examined the totality of the circumstances to determine whether the officer’s belief that a person temporarily detained is armed with a dangerous weapon is a reasonable one rather than one based on some “inchoate and un-particularized suspicion or 'hunch’ ”, specifically condemned in Terry v. Ohio, supra. Observation of a bulge in the clothing of the detainee may justify an officer’s belief that the detainee is armed. (Phillips v. State, 284 So.2d 485 (Fla. 3d DCA 1973); Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971). See also McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978); Williams v. State, 294 So.2d 37 (Fla. 3d DCA 1974).) The officer’s belief that the detainee is armed may be reasonable where the officer has prior knowledge of the detainee, including hearsay reports that the individual is armed. (McNamara v. State, supra; State v. Francois, supra; Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972).) The nature of the suspected offense which prompted the officer to initially detain the individual may also bolster the reasonableness of the officer’s belief that the individual is armed and dangerous. (Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976). See also McNamara v. State, supra; Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978); Laster v. State, 354 So.2d 1262 (Fla. 1st DCA 1978). Cf. State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).) Additional factors to be considered are the locale and time of the detention and whether the officer is alone at the time of the encounter. (See, e. g., Wilson v. State, supra; Williams v. State, supra; State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973).)

Considering the totality of the circumstances, we find the facts here justified both the temporary detention of appellant’s vehicle and the limited protective search of both appellant and his passenger. Officer Crosby, pursuing a proper investigative function in the performance of his duties, stopped appellant’s vehicle. Once the vehicle was stopped, Crosby observed the alleged fruits of the reported crime in the back seat of the vehicle. At that point, Crosby was confronted with not only the vehicle which apparently had been used incident to a crime, but also with a suspected criminal and perhaps his accomplice. Absent a total dereliction of his duties, Crosby could not at that point turn his back and depart from the situation. (See Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972). Neither could he reasonably proceed further without reasonably ascertaining that it was reasonably safe for him to do so.

AFFIRMED.

BOOTH, J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The majority plainly countenances an automatic search incident to a lawful detention of the operator of an automobile bearing another who is suspected of stealing three six-packs of beer. There is no authority in Florida statutory or decisional law for such a thing.

The officer had a well-grounded suspicion that Phillips’ passenger committed petit larceny at the convenience store and left in Phillips’ automobile. Had the offense been a felony, there may well have been probable cause for the passenger’s arrest without a warrant, given the description of the thief and the automobile and the presence of cold beer plainly visible in the back seat. But that is not the question; it is Phillips who was subjected to the weapon search; and afterwards the passenger fled.

There was articulable reason to stop Phillips’ car in order to detain his passenger. For purposes of discussion I also indulge the dubious assumption that there was reason to detain Phillips himself briefly, in order lawfully to discover any evidence; besides ■ his presence outside the convenience store and his association with the suspected thief, that would support a warrant for his arrest. Given that assumption, Phillips’ detention was in accord with Section 901.151(2), Florida Statutes (1977):

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed . a violation of the criminal laws of this state . . ., he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed ... a criminal offense.

But the weapon search was unlawful. The standard for such searches is as stated in Section 901.151(5):

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. . .

The searching officer had no reason to believe that Phillips was armed with a dangerous weapon and therefore offered a threat to the officer’s safety. A disinterested mind will accept the notion, I trust, that Phillips could not reasonably be regarded as probably armed because, at 2:00 o’clock in the afternoon, he drove a car bearing a suspected shoplifter. Phillips followed all directions given by the officer, and nothing in his manner suggested danger. The celebrated “bulge” in Phillips’ left rear pocket did not alarm the officer, who testified that the bulge “was too small and it was . . . in a place where normally a wallet would possibly be.” Moreover, the officer’s observation of the bulge was itself the product of a search already underway. The officer testified:

When I patted Mr. Phillips down, I felt a bulge in his left rear pocket. Reaching in his left rear pocket this bulge felt like a hard object. Reaching in his left rear pocket I pulled out a white handkerchief and inside the white handkerchief . was a .25 Browning automatic pistol.

In short, the officer did not search Phillips because he reasonably believed that Phillips was armed. Contrast Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978). The officer searched Phillips because, as he testified,

I felt like it being a traffic stop and being due to the fact that there had been a crime committed, I felt that all passengers or any persons that were in the area or associated with the particular suspect that might have done the crime could be a threat to my person.

Certainly it is true that a grounded suspicion that the detainee committed a violent crime may justify a weapon search as well as the detention. See Terry v. Ohio, 392 U.S. 1, 33, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (Harlan, J., concurring); Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976). Or recognition of the detainee as one reported to be armed may justify a weapon search, although the original detention was not so informed. Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972), cert. denied, 271 So.2d 141 (Fla.1972); Baker v. State, 316 So.2d 657 (Fla. 1st DCA 1975). See also McNamara v. State, 357 So.2d 410 (Fla.1978). But none of those circumstances are present here. This search was unlawful and the fruits of it should be suppressed. Bennett v. State, 344 So.2d 315 (Fla. 1st DCA 1977); Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978). I would reverse.


text:
    In re ESTATE of Clifford M. JELLEY, Deceased. Katherine A. STEVENS, Appellant, v. F. Richard HITT, Personal Representative of the Estate of Clifford M. Jelley, Deceased, Appellee.
    No. 77-1018.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.

      Stephen C. Chumbris and Charles S. Carrere, of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.
    Joseph J. Davies, St. Petersburg, for ap-pellee.
   DANAHY, Judge.

This is an appeal from an order disallowing appellant’s claim against the Estate of Clifford M. Jelley, deceased, on the ground that it was barred by the provisions of Section 733.709, Florida Statutes (1975). That section, which provides that undis-posed of claims against estates are barred at the expiration of one year from the date the claim is filed, became effective on January 1, 1976. Appellant’s claim was filed before that date. We hold that Section 733.709 does not apply to claims filed prior to its effective date, and reverse.

Appellant filed her claim on June 25, 1975. On that date the applicable statute was Section 733.211, Florida Statutes (1973), which provided that undisposed of claims against estates would be barred at the expiration of three years from the date the claim was filed. Thus, under that statute, appellant had until June 25, 1978 in which to take action on her claim.

Two days after appellant’s claim was filed, Florida’s new probate code became law. It was made effective January 1, 1976, some six months later. Section 733-709, reducing the period of time for the enforcement of undisposed of claims to one year, is part of that code. If Section 733.-709 applied to appellant’s claim, appellant had until June 25, 1976 in which to take action on her claim, a period of approximately one year after the probate code was enacted and six months after its effective date.

Appellant, however, took no action on her claim and on February 21,1977 the personal representative of the Jelley estate filed a petition to disallow appellant’s claim on the ground that it was barred by Section 733.-709. The trial judge held that Section 733.-709 applied to appellant’s claim and entered an order granting the petition to disallow the claim. This appeal followed.

It is within the province of the legislature to shorten a statute of limitations and make it applicable to causes of action already existing. Foley v. Morris, 339 So.2d 215 (Fla.1976). Although Section 733.709 and its predecessors are not in the category of general statutes of limitations, they do provide a time limitation for enforcement of a claim against a decedent’s estate. Our analysis, therefore, is based on precedents dealing with statutes of limitations generally-

In Foley v. Morris, supra, our supreme court established a two-part rule for determining the retroactive applicability of a statute shortening a limitations period. Such a statute has retroactive application if the legislative intent to provide retroactive effect is express, clear, and manifest, and if a reasonable time is allowed by the statute within which to file suit on causes of action existing on the effective date of the statute. Though expressing separate criteria, the two parts of this rule obviously are related. If a statute providing a shortened limitations period contains an express provision granting a period of time for the taking of action on existing causes of action, that provision in and of itself ordinarily would express a clear legislative intent that the shortened limitations period is to be applied retroactively. In this case, we are confronted with the absence of such an express provision in Section 733.709 itself.

Nevertheless, it has been argued that an express, clear and manifest intent can be found in the following provision, Section 731.011, of the new probate code:

731.011. Determination of substantive rights; procedures.—The Florida Probate Code shall become effective on January 1, 1976. The substantive rights of all persons that have vested prior to January 1, 1976 shall be determined as provided in former chapters 731-737 and chapters 744-746 as they exist prior to January 1, 1976. The procedures for the enforcement of substantive rights that have vested before January 1, 1976 shall be as provided in this code.

The new Florida probate code, as did its predecessors, contains a number of time limitations for the taking of various actions in the administration of an estate. While such provisions establish time limitations, it has been recognized that they are in the nature of procedures for the orderly and efficient administration of an estate. In re Woods Estate, 133 Fla. 730, 183 So. 10 (1938); In re Brown's Estate, 117 So.2d 478 (Fla.1960). Thus the argument is advanced that the shortened time limitation provided in Section 733.709 is part of “the procedures for the enforcement of substantive rights” which, according to Section 731.011, are to be as provided in the new probate code. There is, frankly, a disagreement among us as to whether Section 731.011 expresses a clear and manifest intention on the part of the legislature that Section 733.709 is to have retroactive effect; that is, is to be applied to claims filed before its effective date of January 1, 1976.

We find it unnecessary, however, to resolve that issue. Instead, we hold that, even though the legislature may have intended retroactive effect in the application of Section 733.709, it failed to provide a reasonable time for action on claims previously filed. Thus the second requirement of the Foley rule has not been met.

Certainly, claims already on file for a year when Section 733.709 took effect are given no time at all under that section. This court has refused to give retroactive effect to a shortened statute of limitations when to do so would bar a cause of action existing on the effective date of the statute. Maltempo v. Cuthbert, 288 So.2d 517 (Fla. 2d DCA 1974). Such a result, in fact, would be unconstitutional. Sohn v. Waterson, 17 Wall (U.S.) 596, 21 L.Ed. 737 (1873).

But can Section 733.709 be given retroactive effect with respect to a claim on file less than a year on the statute’s effective date, as in this case? Measuring a year from the date on which appellant filed her claim, she had approximately six months following the effective date of Section 733.-709 in which to take action on her claim. Six months is a reasonable time. In re Brown’s Estate, supra. Appellee forcefully argues that since appellant had a reasonable period after the effective date of Section 733.709 to take action on her claim, under the facts of this case, that section should apply.

If appellee’s argument were accepted, the question whether a statute shortening a limitations period provides a reasonable time for the enforcement of existing causes of actions would be determined on a case by case basis. The Fourth District Court of Appeal has observed that such a result is not practical. DeLuca v. Mathews, 297 So.2d 854 (Fla. 4th DCA 1974). We agree. Similar arguments were considered and rejected in early decisions in other jurisdictions and we find the language in those early cases particularly expressive of the reasons why appellee’s argument must fail. McKesson v. Davenport, 83 Mich. 211, 47 N.W. 100 (1890); Hathaway v. Merchants’ Loan & Trust Co., 218 Ill. 580, 75 N.E. 1060 (1905). As stated by the court in the McKesson case, it is for the legislature to provide a general rule applicable to all cases falling within a class, and not for the judiciary to declare what is or should be a reasonable time varying with the circumstances of each case as it arises.

We attach no significance to the fact that Section 733.709 became a law, as part of the new probate code, some six months prior to its effective date. Although it could be argued that the law thus gave at least six months to all persons having claims already on file in which to take action on those claims, we have previously rejected the notion that in delaying the effective date of a statute shortening a limitations period, the legislature did so for the purpose of protecting persons with existing causes of action, thereby manifesting an intent that the statute should be applied retroactively. Maltempo v. Cuthbert, supra. As pointed out by us in the Maltempo case, and by the Fourth District Court of Appeal in DeLuca v. Mathews, supra, there can be many reasons why the legislature postpones the effective date of a statute and it cannot reasonably be concluded that the legislative purpose was to give retroactive effect to a new limitations statute.

We, therefore, hold that Section 733.709 is not applicable to appellant’s claim. Appellant had a period of three years from the date her claim was filed or until June 25, 1978 in which to take action on her claim, pursuant to the provisions of former Section 733.211. Thus the order of the trial judge disallowing appellant’s claim was in error and is reversed.

Reversed.

GRIMES, C. J., and HOBSON, J., concur.

      . See, for example, Section 732.212 (time for filing surviving spouse’s election of elective share); Section 733.702 (period within which claims must be filed); Section 732.801 (time for filing a disclaimer); and Section 733.212 (time for objecting to probate if served with notice). The new probate code shortened all of these time periods.


text:
    CITY OF TAMPA, Petitioner, v. Emilio IPPOLITO, Respondent.
    No. 77-1933.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.

      E. J. Salcines, Jr., State’s Atty. and Mark A. Ober and Samuel J. Nuccio, Asst. State’s Attys., Tampa, for petitioner.
    Emilio Ippolito, in pro per.

      . This case arrived here with the style “State of Florida v. Emilio Ippolito.” We have corrected the style so that it complies with the rule that all prosecutions of municipal ordinances in county court be styled “City of - v. -” Fla.R.Jud.Adm. 2.110(e).

   PER CURIAM.

This is a petition by the city for writ of certiorari to review an order of the circuit court reversing the denial in county court of respondent’s demand for a trial by jury. Respondent was charged in county court with violating a municipal ordinance, an offense punishable under the city code by a fine not exceeding $500 or imprisonment for a term not exceeding six months, or by both. We hold that respondent is not entitled to a trial by jury, grant certiorari, and quash the order of the circuit court.

This case reached the circuit court by an interlocutory appeal from the order of the county court denying respondent’s demand for a jury trial. Circuit courts have jurisdiction of appeals from county courts except those appeals which may be taken directly to the supreme court. Section 26.012, Florida Statutes (1977). Belatedly, not having raised the point in the circuit court, the city argues that the circuit court had no jurisdiction to consider the interlocutory appeal because an appeal from county court to circuit court lies from a final judgment only. We dispose of this argument by observing that the circuit court had jurisdiction to entertain the interlocutory appeal as a petition for writ of certiorari and we will consider that it did so. Article V, Section 5(b), Florida Constitution; Nellen v. State, 226 So.2d 354 (Fla. 1st DCA 1969).

In the circuit court, the city argued that respondent had no right to a jury trial, either under the statutes of the State of Florida, the Florida Constitution, or the Constitution of the United States. The circuit judge stated he was persuaded that the position of the city was correct; however, he expressed concern that another judge of the county court (not the judge who ruled in respondent’s case) was granting jury trials to persons charged with violations of municipal ordinances, regardless of whether they were entitled to jury trials. He stated that, if he found this to be the case, he would rule that respondent could not constitutionally be denied a jury trial in this case. Thereupon, the circuit judge directed his clerk to investigate the matter and report back to him whether any county court judge was affording jury trials for all violations of municipal ordinances. The record does not disclose the result of that investigation, but the circuit judge thereafter entered an order reversing the county court, finding that the denial of a jury trial to respondent was in error. The order did not state the basis for that decision.

In his order of reversal, the circuit judge clearly departed from the essential requirements of the law. If his ruling was for the reason expressed in the record, it was based on a point not raised in the county court and was determined by a finding of fact, a function not within the scope of appellate review. If the decision below was based on a holding that there is a right to a jury trial for violation of a municipal ordinance such as that involved in this case, it was incorrect.

Article I, Section 22 of the Florida Constitution secures the right to trial by jury to all persons, but our supreme court has long held that this constitutional guarantee does not apply to violations of municipal ordinances, since trials of such violations were conducted without juries prior to the adoption of our constitution. Boyd v. County of Dade, 123 So.2d 323 (Fla.1960).

Section 932.61, Florida Statutes (1977), confers a statutory right to a jury trial when the violation of a municipal ordinance is also a violation of a state law. The violation with which respondent was charged does not fall in that category.

The guarantee of trial by jury contained in the sixth amendment to the federal constitution has been held applicable to the states through the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). But the sixth amendment guarantee does not apply to those offenses in the category of “petty offenses,” which have been defined by reference to federal law as those punishable by no more than six months in prison and a $500 fine. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). As noted above, the municipal ordinance violation with which respondent was charged is punishable by a fine of $500 or imprisonment up to six months, or by both. This being a petty offense within the definition set forth in Baldwin v. New York, supra, there is no right to a jury trial under the fourteenth amendment to the federal constitution.

We hold that respondent is not entitled to a trial by jury and the county court was correct in so ruling. Cf. State v. LaValley, No. 78-769 (Fla. 2d DCA, July 14, 1978).

One other point has been argued. Respondent filed a motion in the county court to dismiss the charges against him, which was denied. The denial of that motion was also a subject of respondent’s petition to the circuit court. Respondent has argued to us that the circuit court erred in failing to rule on the county court’s denial of the motion to dismiss. Since respondent did not file a cross petition for certiorari raising that point for our review, the question is not before us for consideration. Fla. App.R. 4.5(c)(3).

The order of the circuit court is quashed with directions to reinstate the ruling of the county court denying respondent’s demand for a jury trial, and for further proceedings.

HOBSON, A. C. J, and SCHEB and DANAHY, JJ., concur.

      . The granting of a petition for writ of certiora-ri under such circumstances necessarily implies a finding that the petitioner is without an ade-. quate remedy by appeal from a final judgment ot conviction. We doubt such a finding is justified in this case, but consider it an expeditious use of judicial labor to rule on the merits of the point of law involved.


author: BOARDMAN, Judge.

text:
    Millard R. EVERHART, Appellant, v. Helen S. EVERHART, Appellee.
    No. 77-1950.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Henry P. Trawick, Jr., of Trawick & Grif-fis, Sarasota, for appellant.
    John Patterson, of Livingston, Patterson & Wood, and Michael J. Furen, of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellee.
   BOARDMAN, Judge.

On this appeal by respondent/husband from a final judgment of dissolution of marriage and other relief we find one point to have merit.

The trial court found that petitioner/wife had a special equity in Key Packaging Company, Inc. and awarded her a one-third interest in the business. Appellant was directed to transfer to appellee one-third of all the shares in Key Packaging held by him at that time and one-third of any shares he might acquire as a result of certain agreements referred to as the Wing Agreements which included an employment contract and a stock redemption plan. It seems to us that the trial judge’s intent by this somewhat unusual arrangement was to insure that appellee would receive one-third of any stock in Key Packaging obtained by appellant which was the subject of the Wing Agreements. Under the special circumstances of this case the trial court’s order was correct in this regard.

The trial court erred, however, in additionally granting an equitable lien on one-third of the shares currently owned or subsequently acquired by appellant. Accordingly, the following portion of the final judgment is stricken: “The Petitioner is hereby granted an equitable lien on all such interests to the extent of her one-third (V3) undivided interest therein.”

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIMES, C. J., and RYDER, J., concur.


text:
    Johnny MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-259.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Robert E. Jagger, Public Defender, and Anthony Rondolino, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See DeLanie v. State, 262 So.2d 655 (Fla.1972).

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


author: GRIMES, Chief Judge.

text:
    STATE of Florida, Appellant, v. Raymond RUIZ, Appellee.
    No. 78-262.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.

      Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and Delano J. Brock, Asst. State’s Atty., Naples, for appellant.
    David E. Rosendahl of Taylor, Locker & Conley, P.A., Naples, for appellee.
   GRIMES, Chief Judge.

Defendant was charged with felony possession of marijuana, cocaine, and amphetamines. The court granted his motion to suppress the drugs except for a bag of marijuana found on the defendant’s person during a search incident to his arrest. The state appeals the suppression of the other evidence, and defendant cross-appeals the order denying his motion to suppress the bag of marijuana.

On September 4, 1977, deputies Sisk and Jacobs responded to a complaint from the local Ramada Inn that a nude male was running about the premises and'upsetting the guests. The deputies arrived at the motel and were led to the defendant’s room. They knocked on the door of the motel room, identified themselves as police officers, and asked for permission to enter the room. The defendant verbally consented to the deputies’ entry.

When the deputies entered the room, they found defendant standing in the middle of the room completely naked. A nude female was lying on the bed. Both deputies " testified that defendant was quite intoxicated, apparently due to narcotics use. Jacobs asked him for identification. The defendant went to the dresser and began to look for some identification. At this point, Deputy Sisk spied an open attache case on top of the dresser and observed, inside the case, a small vial containing a white powdery substance which Sisk believed to be cocaine.

Both deputies noticed that as defendant searched for his wallet, he was picking up small bits of vegetable matter from the top of the dresser and inserting them in his mouth as if he were eating them. After the defendant handed him some identification, Deputy Jacobs went over to the dresser where he observed the substance which defendant had been picking up and eating. He showed the substance to Sisk, and they agreed that it appeared to be marijuana. Deputy Jacobs then informed defendant that he was under arrest and began to pat him down. The defendant had, immediately prior to this arrest, put on a pair of shorts, and in searching defendant’s person incident to his arrest, Deputy Jacobs discovered a small baggie of marijuana in his pocket.

Deputy Sisk then went to the open attache case on top of the dresser and removed the vial of white powder which he had earlier spotted. Jacobs, in the meantime, picked up a plastic vial from the top of the dresser between the marijuana and the open attache case. This vial contained a small red pill which Jacobs believed to be some sort of narcotic. Jacobs testified that he had first seen the vial with the red pill when the defendant went to the dresser to obtain the identification. Sisk, however, never mentioned the small plastic vial containing the pill at any point during his testimony.

After the defendant was arrested Sisk removed him from the motel and transported him to the county jail in Deputy Jacobs’ car. Jacobs remained behind to secure the evidence which they had gathered and to collect the defendant’s personal effects in order to deliver them to him upon his release from jail. The motel manager was present when the defendant was arrested. She stated that once defendant was removed from the room and taken to jail she offered to Deputy Jacobs to secure the room with defendant’s personal belongings inside. Deputy Jacobs, who at this time was conducting a thorough search of the room, ostensibly .looking for defendant’s personal belongings, declined the offer and told her that securing the room would be unnecessary. Jacobs then took the defendant’s belongings, including his attache case and a pair of tennis shoes, and put them in Deputy Sisk’s car and left the motel.

Apparently, Sisk and Jacobs met somewhere away from the jail and exchanged cars. Sisk then proceeded to the jail and took defendant’s belongings to the booking office. While on the way to the office carrying both the defendant’s belongings and some of his own notebooks, Sisk dropped some items, including the defendant’s tennis shoes. As he bent over to retrieve these items, he noticed a shiny object stuffed inside the toe of one of the tennis shoes. He removed the object and discovered a plastic bag containing cocaine. Defendant was eventually charged with the possession of the narcotics seized in the motel room, as well as the bag of cocaine discovered in the toe of his tennis shoe.

On defendant’s motion to suppress the court found that the search of defendant’s person and the seizure of the contraband found thereon was lawful. However, the court found that the search of the room was an unnecessary search for inventory purposes and suppressed all of the contraband found as a result of that search, including the plastic vial inside the attache case, the marijuana found on the dresser top, and the small plastic vial containing the red pill. The court also suppressed the cocaine in the tennis shoe.

The state argues that the evidence found in the defendant’s motel room should not have been suppressed as the result of an unnecessary and unreasonable inventory search. The state argues that the search of the motel room was not an inventory search but that the contraband in question was lawfully seized from within the deputies’ plain view. Our review of the record and the testimony of the deputies involved leads us to agree with the state. Both Deputy Sisk and Deputy Jacobs testified that the attache case was open and in plain view on the dresser when they entered the room pursuant to defendant’s invitation. The other contraband was also in plain view on the dresser near the attache case. The fact that both deputies may not have observed the contraband at the same time does not diminish the uncontradicted fact that the contraband was open to their inspection. Thus, with regard to these items of contraband, no inventory search actually occurred.

Defendant, on the other hand, contends that the deputies had no right to be in a position from which they could observe the contraband in question. Defendant suggests that there was no justification for the officers to enter the motel room; they could have requested his presence outside the room. Defendant also notes that he was in such a state of intoxication from the drugs which he had ingested that he could have never knowingly and voluntarily consented to the officers’ entry. Thus, his invitation to enter was merely an acquiescence to the officers’ apparent authority and intimidating presence, and any contraband discovered was illegally seized as the result of an unlawful entry. See United States v. Williams, 544 F.2d 807 (5th Cir. 1977). We disagree. The officers had responded to a legitimate call, and when they arrived at the motel they chose the least offensive place to interview the defendant given his state of undress at the time. Contrary to defendant’s implication, the plain view doctrine does not require that an officer’s presence at the vantage point from which he observes contraband must be justified by a warrant to search for another object, by hot pursuit, or by a search incident to a lawful arrest. Law enforcement authorities may have many reasons for entering a domicile other than to execute search warrants or to make arrests, and a legitimate reason for his presence unconnected with a search directed against a defendant will suffice to legally place the officer at the vantage point. Cf. Robbins v. McKenzie, 364 F.2d 45 (1st Cir. 1966); Davis v. United States, 327 F.2d 301 (9th Cir. 1964).

In this case, the deputies were lawfully present for reasons other than conducting a search of the defendant or his belongings when they sighted the contraband in plain view. The deputies had the right to believe that defendant’s consent to enter the motel room was knowing and voluntary because they had done nothing to coerce such consent. They both entered the room in full reliance on an invitation extended by one whom they lawfully believed had the right and authority to invite them in. To restrict these deputies from entering premises when lawfully invited by the occupant would be an unwarranted limitation on the discretion of police officers to investigate and deal with situations that do not necessarily involve an arrest for an alleged crime. Thus, the seizure of the contraband found in the attache case and on top of the dresser was justified as a plain view seizure.

The contraband found stuffed into the toe of the defendant’s tennis shoe presents a different problem. This was not discovered until after the defendant had been arrested and removed from the motel room. The motel manager had offered to secure the room, but Deputy Jacobs refused. Thus, there is sufficient evidence to support the court’s conclusion that there was no need for Deputy Jacobs to thoroughly search the room and collect the defendant's belongings. If, in fact, Deputy Jacobs suspected that the motel room contained more contraband than that which he and Deputy Sisk had earlier found, then there was no reason why he could not have secured the room and sought a search warrant based upon this knowledge.

The order from which this appeal is taken is reversed to the extent that it suppresses any drugs which were seized in the motel room. In all other particulars, the order is affirmed.

HOBSON and OTT, JJ., concur.

      . The trial court’s suppression of the marijuana found on the dresser top is inconsistent with its order denying the suppression of the marijuana found in the defendant’s pocket. It is obvious that the probable cause to arrest was provided by the discovery of marijuana in plain view on top of the dresser. Logically, if the marijuana on top of the dresser was discovered pursuant to an unlawful inventory search, then there would have been no probable cause to arrest and the subsequent search of the defendant’s person would be illegal.

      . In Williams, there was a question of the law enforcement officers’ (customs agents) authority to even hoard the defendant’s houseboat. In this case, we have determined that the deputies did not abuse their authority by asking to enter the motel room; therefore, Williams is not really analogous to the case sub judice. In addition, in Williams the customs agents’ request of the defendant included a request to search the houseboat. Obviously, such a request would raise a question of the defendant’s ability to knowingly and voluntarily surrender his constitutionally protected right of privacy. In the instant case, the deputies requested only that they be allowed to enter the room in order to speak with the defendant; no request for a search was ever .made. Finally, the Williams decision was predicated upon the district judge’s finding that the defendant was under the influence of alcohol or drugs to the extent that he was unable knowingly and voluntarily to consent to the search. In the instant case, the court specifically held that the deputies had a right to enter the motel room upon the defendant’s invitation.


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    Elton Ray BELL, Appellant, v. STATE of Florida, Appellee.
    No. DD-350.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1978.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Bell of aiding, abetting or otherwise procuring as a principal in the first degree, the commission of a robbery. The trial court sentenced him to life imprisonment. He appeals the judgment of conviction contending the court erred in denying his motion for discharge under the speedy trial rule, erred in permitting the State to cross examine him on his silence at the time of his arrest, and erred in refusing to give his requested jury instructions on lesser included offenses.

Bell’s privately retained attorney filed a demand for speedy trial on 5 April 1976. The court had previously set the trial for 19 May. On 13 May, Bell’s attorney filed a motion to withdraw as Bell’s attorney because of a serious conflict of interest and ethical problem. The motion was heard and the attorney was permitted to withdraw. Although the State announced that it was ready for trial on 19 May, Bell was not because he had no attorney. Under these circumstances, the court required Bell to sign a waiver of speedy trial and it entered an order continuing the trial. Upon retaining new counsel a month later, Bell immediately filed a motion for discharge under the speedy trial rule. Following a hearing, the motion was denied. We affirm on this point.

Under the circumstances here, Bell could not have gone to trial on 19 May because he did not have an attorney and did not agree to waive an attorney. This was not caused by the State nor the court, but by actions of the law firm of which Bell’s attorney was a member. These were exceptional circumstances which support the court’s order of continuance under the provisions of Fla.R. Crim.P. 3.191(f). State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46 (Fla. 1st DCA 1976).

We have reservations about the validity of the waiver of speedy trial signed by Bell at the request of the court, however, it is of no consequence to our decision which is based on the valid order of continuance entered by the court.

The State attempted to cross examine Bell concerning his refusal to talk to the sheriff about the robbery. Bell’s attorney timely objected and the court sustained the objection. The State abandoned this line of examination and then commenced cross examination as to when Bell’s Miranda rights were given to him. Bell’s attorney again objected but was overruled. However, because Bell answered that he did not remember when his Miranda rights were given, the State did not pursue this line of examination further.

There are decisions holding that interrogation of a witness regarding the silence of a defendant without objection is not necessarily error. Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976). There are decisions holding that such circumstances constitute fundamental error. Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976). There are decisions holding that such interrogation regarding silence where an objection is overruled or motion for mistrial is denied is fundamental error. Bennett v. State, 316 So.2d 41 (Fla.1975). There appear to be no decisions where an objection is sustained where a defendant is being examined. We hold under the facts of this case that where a timely objection was made and sustained and the defendant otherwise received a fair trial, with the exception of the point on which we reverse, no error was committed.

Bell requested the court to instruct the jury on the lesser included offenses of larceny and battery. The court refused to give the requested instructions. The failure to instruct on lesser included offenses constitutes error. The harmless error doctrine may not be invoked. The failure to give the requested instructions is prejudicial error and is per se reversible. Lomax v. State, 345 So.2d 719 (Fla.1977); Hammer v. State, 343 So.2d 856 (Fla. 1st DCA 1976). We reverse on this point.

We affirm in part, reverse in part, and remand this case for a new trial.

McCORD, C. J., and BOYER, J., concur.


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    Kingdrel N. AYERS, Appellant, v. HOME OWNERS ASSOCIATION OF KILLEARN ESTATES, Appellee.
    No. II-313.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1978.
    K. N. Ayers, Tallahassee, for appellant.
    William L. Boyd and Mary F. Clark of Mahoney, Hadlow & Adams, Tallahassee, for appellee.
   BOYER, Judge.

Plaintiff (appellant here) appeals an order dismissing his complaint with prejudice.

Plaintiff filed a complaint seeking injunc-tive relief to restrain the Association (ap-pellee here) from using assessments received from members to pay the legal fee of an attorney in connection with a class action suit filed by the members of the Association against Killearn Properties, Inc. The Association filed a motion to dismiss. Thereafter the court entered an order finding that the complaint failed to alleged irreparable injury or any ultimate facts which could allow the court to conclude that any basis for injunctive relief existed. We hold the trial court abused its discretion in failing to give plaintiff at least one chance to amend his complaint.

Accordingly, the order of dismissal with prejudice is reversed and this case is remanded to the trial court with directions that the plaintiff be allowed a reasonable time within which to amend.

It is so ordered.

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


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    Richard J. PFEIFFER, Petitioner, v. POLICE STANDARDS AND TRAINING COMMISSION, Respondent.
    No. II-337.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1978.

      Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Louis J. Rausch, Chief, Bureau of Standards, Robert L. Shevin, Atty. Gen., Joseph W. Lawrence, Asst. Atty. Gen., for respondent.
   BOYER, Judge.

Petitioner seeks review of the final agency action of the Commission denying his request for a formal hearing pursuant to F.S. 120.57.

In 1974, petitioner was arrested for indecent exposure. Later, petitioner plead guilty to a charge of disorderly conduct and paid a fine. He was admitted to the police recruit training program in 1975 and successfully completed the training program. Thereafter, petitioner was advised by the Chief of the Bureau of Standards that a certificate of completion would not be granted to him because of his conviction for disorderly conduct under F.S. 877.03. Petitioner requested a hearing pursuant to chapter 120, but his request was denied.

The Commission contends that petitioner’s conviction of disorderly conduct is a conviction of a crime involving moral turpitude which prohibits it from issuing a certificate of compliance pursuant to F.S. 943.-13(4) and 943.14(2). It is petitioner’s position that a conviction under F.S. 877.03 does not disqualify a person from qualification pursuant to F.S. 943.13 because such a conviction is not a conviction of a crime involving moral turpitude as defined by law.

The qualifications for employment as a police officer are set forth in F.S. 943.13 and the requirement which is in question here is set forth in subparagraph (4) and states as follows:

“943.13 Police Officers; qualifications for employment. After August 1, 1974, any person employed as a police officer shall: (4) Not have been convicted of a felony or of a misdemeanor involving ‘moral turpitude’ as the term is defined by law and who has not been released or discharged under any other than honorable conditions from any of the armed forces of the United States.”
F.S. 877.03 defines breach of the peace and disorderly conduct as follows:
“Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quite of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree . . .”

We hold that a conviction for disorderly conduct is not necessarily a conviction of a crime involving moral turpitude. While there are certainly some factual circumstances surrounding a conviction for disorderly conduct which would involve moral turpitude, we cannot agree with the Commission that simply pleading guilty to disorderly conduct results in the conclusion that petitioner was convicted of a crime involving moral turpitude.

The record reveals a letter from petitioner explaining his "actions on the night he was arrested for indecent exposure. His explanation as contrasted to the information contained in his arrest report creates a factual dispute as to whether or not petitioner’s conduct on the night in question involved moral turpitude. In the absence of an agreement as to the undisputed facts, the Commission must give petitioner a hearing.

Accordingly, the case is remanded to the Commission with instructions that petitioner be given a formal hearing in order to resolve the factual dispute surrounding his conviction for disorderly conduct.

IT IS SO ORDERED.

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


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    HARLO PRODUCTS CORPORATION, a Foreign Corporation, Appellant, v. J. I. CASE COMPANY, a Wisconsin Corporation, d/b/a Case Power and Equipment, Appellee.
    No. JJ-450.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1978.
    Ashby L. Camp of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Gary L. Dirlam of Gurney, Gurney & Handley, Orlando, Anthony I. Provitola, DeLand, Ronald E. Cabaniss, Orlando, Arthur M. Ossinsky, Daytona Beach, for ap-pellee.
   MILLS, Judge.

Harlo takes this interlocutory appeal from an order denying its motion to dismiss Case’s amended third party complaint for lack of personal jurisdiction.

Norfolk filed a complaint against Case alleging that Case was liable to him for injuries he received when the arm of a forklift owner by Case fell on him. Case filed a third party claim against Harlo alleging that Harlo was a foreign corporation with its principal place of business in Grandville, Michigan, but doing business in Florida as the manufacturer of components of forklift vehicles used throughout Florida and that the injuries sustained by Norfolk were the result of a defective forklift component manufactured by Harlo. Harlo moved to dismiss the amended third party complaint on the ground that the amended complaint failed to allege facts showing that it was subject to personal jurisdiction of a Florida court. In support of its motion, Harlo filed an affidavit stating that it was a Michigan corporation not licensed to do business in Florida, that it did not engage in business in Florida, and that it maintained no offices, agents, employees, bank accounts, books, records, telephone listings or other business activities in Florida. Case filed a counter-affidavit stating that a component of the injury producing forklift was manufactured by Harlo and that other forklifts in its possession in Florida contained the component manufactured by Harlo. Following a hearing, Harlo’s motion to dismiss was denied.

Case contends that the facts alleged in its amended complaint clearly bring it within Section 48.193(lXf)2, Florida Statutes (1977), which states:

“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or or use, and the use or consumption resulted in the injury.”

Harlo admits that it comes within the scope of Section 48.193(l)(f)2 but that the application of this Section to the facts of this case is unconstitutional because the mere presence in Florida of Harlo’s product is not sufficient contact for the assertion of personal jurisdiction over it by a Florida court. We agree and reverse.

Before a state court can acquire personal jurisdiction over a foreign corporation, the foreign corporation must have certain minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). It is necessary that there be some act by which the foreign corporation purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

In Dunn v. The Upjohn Co., 350 So.2d 127 (Fla. 1st DCA 1977), we held that a Georgia pharmacist, who filled and delivered a prescription to a Florida resident in Georgia who was injured after using the prescription in Florida, was not subject to personal jurisdiction in Florida because the pharmacist did not purposely avail himself of the privilege of conducting activities in Florida and did not have minimum contacts with Florida.

In Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977), we held that Section 48.193(l)(f)2 was unconstitutional as applied to a North Carolina automobile dealer, who serviced a car owned by Avis who later sold it at auction in Florida to a Florida resident who was injured in Florida, for the reasons set forth in the Dunn and Hanson cases.

The facts in this case, although not the same, are sufficiently similar to warrant the same result. The only allegation connecting Harlo with Florida is that it manufactured a component of forklifts which are used throughout Florida. The statements in Harlo’s affidavit that it was a Michigan corporation not licensed to do business in Florida, that it did not engage in business in Florida and that it maintained no offices, agents, employees, bank accounts, books, records, telephone listings or other business activities in Florida, are unrefuted by Case. There are no allegations showing that Harlo purposely availed itself of the privilege of carrying on business activities in Florida nor that it had minimum contacts with Florida. We hold that Section 48.193(l)(f)2 is unconstitutional as applied to the facts of this case.

The interlocutory order appealed is reversed and this case is remanded for further appropriate proceedings.

McCORD, C. J., and BOYER, J., concur.