author: BOARDMAN, Chief Judge.

text:
    FIRST CHURCH OF CHRIST SCIENTIST and St. Paul Fire and Marine Insurance Company, Appellants, v. CITY OF ST. PETERSBURG, a Municipal Corporation, et al., Appellees.
    No. 76-1558.
    District Court of Appeal of Florida, Second District.
    April 20, 1977.

      Bernard Kanner of Law Office of Glenn M. Woodworth, St. Petersburg, for appellants.
    B. Norris Rickey, Asst. City Atty., St. Petersburg, for appellee, City of St. Peters-burg.
   BOARDMAN, Chief Judge.

Appellants/defendants/third-party plaintiffs, First Church of Christ Scientist and St. Paul Fire and Marine Insurance Company, appeal the dismissal of their third-party complaint with prejudice.

A complaint was filed by Aderian McKenzie seeking damages for injuries suffered by her as a result of an automobile accident. Aderian was struck by an automobile after she exited a bus which was to have transported her from her home to church. Two of the defendants, First Church and St. Paul Fire and Marine, filed a third-party complaint against the city of St. Petersburg and two others for indemnity or contribution. The third-party complaint was dismissed for failure to state a cause of action.

The second count of the third-party complaint included the. following allegations. The city had contracted with First Church to provide a bus and operator to transport persons to church. The city, through its employee, had exclusive control over the bus at the time of the accident and negligently permitted Aderian to leave the bus. Aderian’s injuries were directly and proximately caused by breach of contract in that the city failed to perform its contractual duties to

a) provide a competent and reasonably prudent bus operator;
b) exercise the highest degree of care, as a common carrier, for the safety of the “CHURCH’s” congregation, in transporting them to and from church; [and]
c) to exercise reasonable care under the circumstances in the performance of its obligation to the “CHURCH” in the furnishing of said bus and bus operator.

The third count included the following allegations. The city breached its duty to exercise reasonable care under the circumstances and to exercise the highest degree of care of a common carrier. Aderian’s injuries were caused as a direct and proximate result of the city’s active negligence. First Church’s negligence, if any, was passive and any liability to Aderian was vicarious.

It is a firmly grounded rule of procedure that a motion to dismiss for failure to state a cause of action is determined solely by reference to the allegations of the complaint. See, e.g., Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla.4th DCA 1971). The third-party plaintiff is not confined “to the version of the facts asserted by the plaintiff in the first instance,” but is permitted to present his own version of the facts, and the allegations, and all reasonable inferences arising from those allegations are deemed admitted by the movant for the purpose of disposing of the motion. See Seaboard Coast Line R.R. Co. v. Brown, 297 So.2d 843, 844 (Fla.2d DCA 1974); Bond, supra.

The obligation to indemnify arises from an express or implied contractual relationship between the tortfeasors. Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d DCA 1969). An implied contractual obligation to indemnify has been constructed from a violation of a duty owed to the third-party plaintiff by the third-party defendant and from the passive negligence of the third-party plaintiff as compared with the active negligence of the third-party defendant. See Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla.2d DCA 1976); Stuart v. Hertz Corp., 302 So.2d 187 (Fla.4th DCA 1974); Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We hold that the third-party complaint stated a cause of action against the city under both of these theories. It alleges in count two that the city breached a duty owed to First Church established by contract. It alleges in count three that the city’s negligence was active or primary and the negligence, if any, of First Church was passive or secondary.

The third-party complaint also stated a cause of action in both counts under the recently enacted “Uniform Contribution Among Tortfeasors Act,” Section 768.31, Florida Statutes (1975), should the trier of fact find First Church and the city to be joint tortfeasors. See Taylor, supra.

This opinion is not to be construed or interpreted as passing on the merits of the third-party complaint.

REVERSED and REMANDED for proceedings consistent with this opinion.

HOBSON and SCHEB, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Harry ZUBERBUHLER et al., Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 76-1955.
    District Court of Appeal of Florida, Second District.
    April 20, 1977.
    Rehearing Denied May 19, 1977.

      Hugh E. Starnes, Henderson, Franklin, Starnes & Holt, Ft. Myers, for petitioners.
    Andrew H. Schuster, Tallahassee, for respondent.
   SCHEB, Judge.

Respondent, Division of Administration, filed eminent domain proceedings against several land owners. One of the eon-demnees now seeks certiorari raising this one clear-cut legal issue: Did the trial judge depart from the essential requirements of the law in allowing discovery of certain information from expert witnesses the condemnee expects to call at trial? We think not and deny certiorari.

The Division of Administration of the State Department of Transportation, as condemnor, attempted pretrial discovery by propounding certain interrogatories to the condemnee. The information sought concerned the substance of the facts and opinions to which the condemnee’s witnesses were expected to testify at trial. The condemnee objected, and, citing Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970), contended the information was not discoverable by the condemnor since no discovery had been initiated by the condemnee.

The trial judge, on the basis of Fla. R.Civ.P. 1.280(b)(3)(A), granted the con-demnor’s motion to compel discovery. This petition by condemnee for a writ of certio-rari ensued. Condemnee contends the trial judge’s application of Rule 1.280(b) departs from the essential requirements of the law and may cause material injury throughout subsequent proceedings. If well taken, con-demnee’s argument meets the requirement for issuance of a writ of certiorari, since remedy by appeal would be inadequate. In effect, courts recognize that once discovery has been compelled, it would be impossible to “unring the bell.” West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).

The amendments to the Florida Rules of Civil Procedure which became effective January 1, 1973, significantly expanded the scope of discovery, particularly relating to expert witnesses. The Florida Bar, Rules of Civil Procedure, 265 So.2d 21 (Fla.1972).

As relates to discovery from experts, the amended Rule provides:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1)- In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, .
(2) . . .
(3) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions pursuant to subdivision (b)(3)(C) of this rule concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (Emphasis supplied.)

Subdivision (b)(3)(A) of the Rule allows discovery from experts expected to testify, but limits discovery to that testimony expected to be given at trial. In contrast, subsection (b)(3)(B) controls where an expert is not expected to be called as a witness at trial. Discovery is thus allowed, but only upon a showing of exceptional circumstances in the second instance.

Rule 1.280(b)(3) is a verbatim adoption of Federal Rule of Civil Procedure 26(b)(4). Generally, it must be assumed that in adopting a rule identical to a Federal rule that our Supreme Court intended to achieve the same results that would inure under the Federal rule. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962). Recently this court, speaking through Judge McNulty, said:

. it’s well known that our Rules of Civil Procedure are patterned very closely after the Federal rules, and it has been the practice pf the Florida courts closely to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting ours. Jones v. Seaboard Coast Line RR Co., 297 So.2d 861, 863 (Fla. 2d DCA 1974) (footnotes omitted).

See also Dickens v. State, 165 So.2d 811 (Fla. 2d DCA 1964).

Although there are no Florida appellate decisions on the applicability of the rule to condemnation actions, Federal courts have consistently applied Federal Rule 26(b)(4) to these proceedings. U. S. v. 412.93 Acres of Land, etc., 455 F.2d 1242 (3d Cir. 1972). See also U. S. v. John R.-Piquette Corporation, 52 F.R.D. 370 (E.D.Mich.1971); U. S. v. 145.31 Acres of Land, etc., 54 F.R.D. 359 (M.D.Pa.1972). In a commentary on the Federal Rule, the Advisory Committee Notes prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States say:

The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent and condemnation cases.
In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary’s expert will take or the data on which he will base his judgment on the stand. A California study of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts’ valuation materials is “lengthy — and often fruitless — cross-examination during trial,” and recommends pretrial exchange of such material. Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of the issues and elimination of surprise which discovery normally produces are frustrated. 43 F.R.D. 211, 234 (1967) (citations omitted) (emphasis supplied).

In light of the above commentary on the Federal Rule, the express provisions of our rule as amended, and the purpose of the rules of discovery (i. e., to eliminate surprise, encourage settlement and assist parties in arriving at just results), it seems appropriate that Rule 1.280(b)(3) should be applied to the proceedings before us.

Petitioner’s argument is bottomed on Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970). In Carlson condemnation proceedings were instituted to acquire property for use in connection with parking facilities for a branch courthouse. After securing an order of taking, the condemnor sought to take the deposition of A. B. Fogarty, an appraiser who had been engaged by the land owners’ attorney. The condemnees sought a protective order to prevent the taking of Fogarty’s deposition. Alternatively, the condemnees sought to exclude from inquiry any matters relating to Fogarty’s appraisal prepared for the land owners’ attorney, as well as information given him by the attorney concerning the property’s value. The trial court allowed the con-demnor to examine the appraiser on all matters except communications between him and the land owners’ attorney. On appeal, this court held the trial court erred in requiring the property owners to divulge the work product of their expert witness and reversed the judgment of the trial court. Carlson v. Pinellas County, 227 So.2d 703 (Fla. 2d DCA 1969). This court certified the question involved there as one of great public interest, see Florida Constitution, Article V, Section 4(2), and the Supreme Court granted certiorari. Pinellas County v. Carlson, supra.

The Supreme Court held that “the discovery sought by the [condemnor] . should have been denied, both because it is not consistent with the standards of fairness previously announced by this Court, and also because it violates the work product rule as it has been developed in Florida case law.” 242 So.2d at 716. In so holding, the Supreme Court emphasized that the appraiser was employed by the condemnees and had prepared expert materials in preparation of their case, and that he was not to be called as a witness. Stressing the concept of fairness underlying discovery, the court pointed out that the work product of condemnees should not in all cases be immune from discovery. Yet, recognizing that condemnation procedures are initiated by the state, the court succinctly stated the following view:

The fair rule is that the State may not initiate discovery in condemnation cases, except as a reciprocal right in those cases when the condemnee has elected to discover the State’s work product. 242 So.2d at 719.

Petitioner argues that by the above language the Supreme Court declared that an immunity exists in favor of the property owner whereby a condemnor is totally excluded from discovering work product unless the condemnee first initiates discovery. This, says petitioner, is a valuable substantive right conferred upon property owners. Its basis stems from the court’s concern that the whole condemnation concept is one diametrically opposed to the fundamental ideas upon which our system of government is based.

We are not persuaded by petitioner’s arguments. First, the Supreme Court in Carlson ruled solely on discovery from a condemnee’s expert not expected to be called as a witness at trial. In the case before us the condemnor has expressly limited its discovery to facts known and opinions held by experts expected to be called at trial. Thus, we do not construe the trial court’s order to be in conflict with the Supreme Court’s holding in Carlson.

Second, if as petitioner argues, the Carlson rationale was intended to apply to discovery of experts to be called at trial, that holding would be superseded by the Supreme Court’s promulgation of Rule 1.280(b)(3)(A), since an applicable Rule of Civil Procedure supersedes all prior conflicting decisional law. Punta, Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., 166 So.2d 889 (Fla.1964). Pinellas County v. Carlson, supra, was decided in 1970. Rule 1.280(b)(3)(A) became effective in 1973.

Finally, we reject petitioner’s argument that Carlson established a “privilege” within the context of Rule 1.280(b)(1), sufficient to exempt the evidentiary opinions of the condemnee’s expert from discovery. The “privilege” claimed by the petitioner does not comport with those requirements necessary to establish a privilege. See International Telephone and Telegraph Corp. v. United Telephone Co. of Florida, 60 F.R.D. 177, 186 (M.D.Fla.1973); 8 Wigmore, Evidence, Section 2285 (McNaughten rev. 1961).

To us, Carlson indicates our Supreme Court’s vital concern for fairness in condemnation procedures. The actions of the condemning authority in that case were properly categorized by the court as being unfair. Why? Because the trial court allowed the condemnor to depose the con-demnees’ expert, who was not expected to testify at trial, and to obtain the work product he produced for, and at the expense of, the condemnees. Then the condemnor was permitted to call that same witness to testify for the condemning authority. Nothing in Rule 1.280(b)(3)(A) or in the trial court’s order in this case permits the type of action the Supreme Court characterized as being unfair in Carlson.

We think the amended rule achieves fairness to both the condemnor and condemnee. Indeed, the very purpose of enacting Rule 1.280 appears to have been to adopt a fair approach to discovery of experts in all litigation. There is no reason to preclude discovery processes as relate to those witnesses expected to testify at the trial. This is especially true in a condemnation suit which focuses on the opinions of opposing appraisers. It is essential to a fair determination of awards in condemnation cases that the factual and theoretical basis upon which these opinions rest be tested by carefully prepared cross-examination. While the Rule allows discovery of those opinions intended to be used at trial and thereby creates a climate for effective cross-examination and rebuttal, non-evidentiary opinions of the condemnee’s experts continue to be protected as work product. Thus, we do no violence to the rule of Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947), that one cannot attempt, “without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.” Additionally, under Florida law the condemnee is protected from financial harassment since the court may tax the costs of discovery against the condemnor. Fla.R.Civ.P. 1.280(b)(3)(C). See also, Section 73.091, Florida Statutes, which requires the condemning authority to pay all reasonable costs, including attorneys’ fees, incurred by a land owner in these court proceedings.

The unfairness inuring to the condemning authority is obvious. Without Rule 1.280(b)(3)(A), the condemnor may be handicapped at trial, for its appraisal is available to the litigants. Gannett Co., Inc. v. Goldtrap, 302 So.2d 174 (Fla. 2d DCA 1974). Without Rule 1.280(b)(3)(A), the scales of justice are weighted against the condemnor and the public who must ultimately pay all reasonable costs of these proceedings. Even more important is the fairness the Rule brings to our system of justice by encouraging settlements by exposing the parties’ strengths and weaknesses prior to trial. The element of surprise is eliminated and the jury’s task of rendering an intelligent and just verdict is simplified by a more thorough examination of the experts whose testimony they must weigh.

Certiorari denied.

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


author: RAWLS, Acting Chief Judge.

text:
    Eddie RHINES, Appellant, v. PLOOF TRANSFER COMPANY, INC., Appellee.
    No. CC-281.
    District Court of Appeal of Florida, First District.
    April 22, 1977.
    Rehearing Denied May 16, 1977.
    Carl M. Stewart and John F. Corrigan, Corrigan, Werber & Moore, Jacksonville, for appellant.
    Marion R. Shepard, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   RAWLS, Acting Chief Judge.

On a previous appearance in this court, a summary judgment in favor of Ploof was reversed. The opinion in the prior appearance, after reciting the parties stipulation of facts, specifically observed that nothing in the record suggested that McGriffin & Company, Inc., leased the tow motor and operator for the purpose of performing any contract with any other entity. Upon remand, additional depositions were taken which were considered by the trial court, along with prior depositions (which were not submitted as a part of the record on the first appeal), and upon this record, the trial court again entered summary judgment in favor of Ploof; hence this appeal by Rhines.

The record before the trial court in the instant cause reflects that MeGiffin & Company, Inc., was engaged in the business of providing stevedoring services and terminal operations for shipping companies. On the date of the injury, Rhines was a longshoreman hired for the day to work for MeGiffin. Being without a tow motor capable of handling large containers (standard ocean shipping van), MeGiffin leased at an hourly rate a tow motor and operator from Ploof to accomplish the shifting of containers along dockside so they could be loaded aboard ship. The tow motor and operator were under the direct supervision and control of McGiffin. While riding on Ploof’s tow motor in assisting the operator, Rhines (McGif-fin’s employee) was injured as he alighted therefrom and instituted this common law action despite receiving workmen’s compensation.

The trial court, after reviewing the depositions and stipulated facts, concluded:

“. . . [A]t the time and place of the accident here in controversy the plaintiff, Eddie Rhines, was a fellow employee in the eyes of the law of Sidney Elmore [Ploof’s tow motor operator] (whose alleged negligence caused the accident and injuries complained of); that McGiffin & Company, Inc., the employer of the plaintiff, Eddie Rhines, was the ‘common employer’ of both Eddie Rhines and the said Sidney Elmore and was bound by the provisions of Sections 440.10 and 440.11, Florida Statutes, to secure the payment of workmen’s compensation to both such ‘common employees’; that the collection of workmen’s compensation benefits from his employer, McGiffin & Company, Inc., was the sole and exclusive remedy of the plaintiff Eddie Rhines since, under the facts of this case, the defendant, Ploof Transfer Company, Inc. was not a third party against whom an independent action can be .maintained under the Workmen’s Compensation Act (see Smith v. Poston Equipment Rentals [Fla.App. 3—1958] 105 So.2d 578 and the cases cited therein; Gulf American Fire and Casualty Company v. Singleton [Fla.App. 2—1972] 265 So.2d 720; Mack v. Cook & Pruitt Morony [Masonry], Inc. [Fla.App. 3—1965] 186 So.2d 831; and Hunt v. Ryder Truck Rentals, Inc. [Fla.—1968] 216 So.2d 751).”

After thoroughly reviewing the record on appeal as now presented, we agree.

AFFIRMED.

SMITH and ERVIN, JJ., concur.

      . Rhines v. Ploof Transfer Company, Inc., 313 So.2d 791 (Fla. 1st DCA 1975). The basic factual situation is detailed in our prior opinion and will not be repeated.


text:
    John GLEICHAUF, a/k/a John Blackhoff, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-318, 76-319 and 76-320.
    District Court of Appeal of Florida, Second District.
    April 22, 1977.
    Robert E. Jagger, Public Defender, and Dane E. DiSano, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant was charged in Case No. 76-318 with two counts of aggravated assault in violation of Section 784.04, Florida Statutes (1973); in Case No. 76-319 with impersonation of an officer in violation of Section 843.08, Florida Statutes (1973); and in Case No. 76-320 with false imprisonment in violation of Section 805.01, Florida Statutes (1973). Appellant pled nolo contendere to each of the charges, and he was sentenced to a four-year term of imprisonment in each case, the sentences to run concurrently. The judgments and sentences in Case No. 76-318 and Case No. 73-320 are affirmed. The judgment in Case No. 76-319 is affirmed, but the sentence is vacated.

Impersonation of an officer is a first-degree misdemeanor. Section 843.08, Florida Statutes (1973). The maximum prison sentence for a first-degree misdemeanor is one year. Section 775.082(4)(a), Florida Statutes (1973). Since the appellant was sentenced to four years in prison for this crime, Case No. 76-319 is remanded for imposition of sentence in accordance with the applicable provisions of the Florida Statutes.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

SCHEB and OTT, JJ., concur.


author: PER CURIAM.

text:
    David Carlton HENRY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-530.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant in the trial court was informed against as follows:

* * * * * *
“* * * WILLIAM SHRIVER AND DAVID CARLTON HENRY, between the 19th day of June, 1975, and the 14th day of July, 1975, in the County and State aforesaid, did unlawfully, knowingly and feloniously have in their possession certain explosives, to-wit: DYNAMITE AND PRIMER CORD, without having a license or permit therefor, in violation of 552.101 and 552.22 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”
* * * * * *

At the time of the jury instruction conference, defense counsel requested a charge on attempted unlawful possession of dynamite; the trial judge refused. After conviction, the appellant prosecuted this appeal and has urged error in this ruling upon the authority of McClam v. State, 288 So.2d 285 (Fla. 4th D.C.A. 1974); Silvestri v. State, 332 So.2d 351 (Fla. 4th D.C.A. 1976). We affirm.

The cases of the Fourth District Court of Appeal are distinguishable either under the facts, because of the nature of the crime charged in the cited cases compared to the crime charged in the instant case, or we decline to follow them and will be in conflict therewith.

The crime charged in the instant action is a licensing statute relating to the possession of dynamite. If dynamite is possessed without a license, it raises a prima facie presumption of “intent to use the same for destruction of life, limb, or property”. In Henderson v. State, 55 So.2d 110 (Fla.1951), “intent” has been defined as follows:

* * * * * *
“ * * * In the case of Bunch v. State, 58 Fla. 9, 50 So. 534, this Court settled the question that for the purpose of a similar verdict the words ‘attempt’ and ‘intent’ were synonymous. * * * ”
* * * * * *

There is no crime of attempt to intend to use the same for destruction of life, limb, or property. Compare King v. State, 317 So.2d 852 (Fla. 1st D.C.A. 1975).

The other points upon which error is urged have been examined and no merit is found to them. Fitzgerald v. State, 227 So.2d 45 (Fla. 3rd D.C.A. 1969); Ford v. State, 251 So.2d 562 (Fla. 3rd D.C.A. 1971); Songer v. State, 322 So.2d 481 (Fla.1975); Fernandez v. State, 328 So.2d 508 (Fla. 3rd D.C.A. 1976).

Affirmed.


text:
    Murray A. CANDIB, Appellant, v. Roy J. CARVER, Appellee.
    No. 76-671.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.

      John W. Watson, III, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, III, Miami, for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Murray Candib, owner of a condominium on the 23rd floor of Palm Bay Towers Condominium, brought an action for injunctive relief to enjoin Roy J. Carver from violating (Article X, Subsection 5) the Declaration of Condominium by causing excessive noise; from continuing to unreasonably annoy Candib and his family, and to enjoin Carver from landing his helicopter on or around the condominium. The complaint sought both actual and punitive damages. At the initial hearing on the complaint, it was determined that the request to enjoin Carver from landing his helicopter on or around the Palm Bay Club was moot, because a permanent injunction had been entered enjoining the Palm Bay Club from granting, permitting, or conducting any and all helicopter flying, landing, or parking on the premises.

At the hearings for injunctive relief, it was determined that the condominiums owner by Carver were directly above the condominium owned by Candib. The Declaration of Condominium of the Palm Bay Towers Condominium, Article X, Section 5, relating to nuisances, was admitted into evidence. The trial court, after hearing all the evidence, entered an order denying the injunctive relief, finding that a legal nuisance did not exist; that there being no legal nuisance, Candib’s request for damages was also denied.

It appears from the judgment the denial of injunctive relief or damages was based on the conclusion of the trial court that the plaintiff had not established the existence of a legal nuisance and, further, that the court cited authority for the proposition that “mere disturbance and annoyance, as such, do not in themselves necessarily give rise to an invasion of a legal right”. While that proposition may be correct in the abstract, it does not have application by which a legal right is conferred for the protection of one against such activity by another.

That is the situation here, where the contract [Declaration of Condominium], after providing “no nuisance shall be allowed upon the condominium property”, also separately provided that a unit owner should not so use his property as to be an unreasonable source of annoyance to unit owners or so as to interfere with the peaceful and proper use of the property by any condominium owner. Thus, not only does the contract protect against a nuisance but also confers a right of protection against a degree of annoyance, which may be less than a legal nuisance. If the intent of the contract had been to protect against only a legal nuisance, the contract provision could have so stated and stopped there without adding the other provision prohibiting the use as referred to above.

Law is cited to the effect that annoyance and interference with one’s peaceful and proper use of his property, short of a legal nuisance, is not an invasion or violation of a legal right of the offended party. As pointed out above, that proposition of law does not apply here, where a legal right against such disturbance [short of legal nuisance] was expressly conferred on the unit apartment owners by the contract.

It was shown in the record that the main noise interference emanating from the defendant’s condominium units, which were directly above the plaintiff’s, was brought about by a type of flooring covering a certain area which had been installed by the defendant unit owner, without being insulated or soundproofed in a manner necessary to obviate excessive noise below and also without prior specification approval of the association, as provided for in the condominium documents. As owner of such a condominium unit, the plaintiff-appellant is entitled to the benefit of the rights conferred on him by the contract for protection against unreasonable noise and annoyance emanating from the apartment of another unit owner, particularly where the annoyance is the result of a construction or renovation feature created by the other unit owner.

The plaintiff made a case for enforcement of his contract right in that regard, for relief by way of injunction or damages. In this connection, see Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th D.C.A.1971), wherein the Fourth District Court of Appeal said the following in upholding the rights under condominium documents:

* * * * * *
“Daily in this state thousands of citizens are investing millions of dollars in condominium property. Chapter 711, F.S.A., 1967, the Florida Condominium Act, and the Articles or Declaration of Condominiums provided for thereunder ought to be construed strictly to assure these investors that what the buyer sees the buyer gets. Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be.” [emphasis added] * * * * * *

See also the opinion of the Fourth District Court of Appeal in Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th D.C.A.1975), wherein the court again upheld condominium documents and said the following, in part:

* * * * * *
“* * .* In its final judgment in the trial court further held that any resident of the condominium might engage in any lawful action in the club house or on any common condominium property unless such action was engaged in or carried on in such a manner as to constitute a nuisance.
“With all due respect to the veteran trial judge, we disagree. It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with the private ownership of property. It provides, for example, that no sale may be effectuated without approval; no minors may be permanent residents; no pets are allowed.
* * * * * *
“* * * It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining.
“Finally, restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.
“Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for the appellant.” [emphasis added]

After the trial judge found no nuisance, he terminated the proceedings. We therefore return the matter to him to consider whether the plaintiff was entitled to an injunction enjoining the defendant from any use or practice which is an unreasonable source of annoyance or which interferes with the peaceful and proper use of his unit by the plaintiff. The court may make this determination either upon the record as made or by considering this record and such other evidence as may be offered. The trial judge should also, if he finds the defendant has violated the provision of the Declaration of Condominium [referred to in footnote 1], award such damages as he deems appropriate under the pleadings and evidence.

The final judgment here under review be and the same is hereby reversed and remanded to the trial court for further proceedings.

Reversed and remanded, with directions.

HENDRY, C. J., dissents.

      . “No nuisances shall be allowed upon the CONDOMINIUM PROPERTY, nor shall any use or practice be allowed which is a reasonable source of annoyance to UNIT OWNERS or which interferes with the peaceful and proper use of the CONDOMINIUM PROPERTY by any CONDOMINIUM OWNER, * * *.”

      . “1. As to Count I of the Complaint the court finds that a legal nuisance does not exist and thus the request for injunctive relief and for a restraining order is hereby denied. There being no legal nuisance the Plaintiffs request for damages is similarly denied and Plaintiff shall go hence without day. As to Count II Plaintiff has stated to the court that the allegations thereof are moot hence upon said admitted mootness said Count is hereby dismissed with prejudice.”


text:
    C. G. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1280.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.
    Carling H. Stedman and Stephen L. Ras-kin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before NATHAN and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On this appeal by the above styled juvenile from a delinquency order, we have considered and find to be without merit the appellant’s contention that the evidence was insufficient to support the decision appealed from. No reversible error has been made to appear.

Affirmed.


author: GRIMES, Judge.

text:
    Alfred C. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-419.
    District Court of Appeal of Florida, Second District.
    April 27, 1977.
    Rehearing Denied May 18, 1977.

      Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of carrying a concealed firearm in violation of Section 790.01(2), Florida Statutes (1975). He now attacks the refusal of the court to instruct the jury concerning the knowledge of the appellant of the presence of the firearm.

Appellant was arrested for having a pistol under the seat of his automobile. His sole defense to the charge was that he was unaware of the presence of the pistol. To support his defense, appellant introduced some evidence which could prompt a jury to believe that the pistol had been placed in his automobile without his knowledge.

At the conference on jury instructions, appellant’s counsel requested an instruction to the effect that the state was required to prove that appellant had knowledge of the presence of the weapon and cited the court to Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). The court declined to give such an instruction. Instead, the court instructed the jury that the elements of the charged offense were (1) “the defendant did carry on or about his person a weapon of the kind charged in the information” and (2) “the weapon was concealed so as not to be apparent upon casual observation by others who might be close to the defendant.”

In the Frank case relied upon by counsel below, the question was whether the court should have charged the jury on the issue of scienter or knowledge where the defendant was charged with the unlawful possession of marijuana. The marijuana had been found in several places in an apartment shared by the defendant with another man. Both persons had equal custody and control of the apartment and equal access to the places where the contraband was found. The court concluded that before the defendant could be convicted of the charge, the state had to establish beyond a reasonable doubt that the accused knew of the presence of the marijuana on the premises. Reasoning that scienter constituted a factual issue to be resolved by the jury upon proper instructions, the court reversed the judgment for failure to give the requested instruction. While Frank involved the unlawful possession of marijuana, it has been held in Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971), that proof of knowledge of the presence of the firearm was essential to a conviction for carrying a concealed firearm. If it were not so, it would be virtually impossible to sustain the defense of a person who contends that he was “framed.” Cf. Rutskin v. State, 260 So.2d 525 (Fla. 1st DCA 1972).

Upon the introduction of evidence that a pistol was found concealed in appellant’s car in close proximity to the appellant, there arose an inference that appellant had knowledge of the presence of the pistol. However, appellant denied knowing it was there and suggested the possibility that it might have been placed under the seat by a friend to whom he had loaned his car the previous evening or by another friend who had repaired the brakes earlier that day. The issue was squarely presented, and, as in Frank, the appellant was entitled to an instruction on scienter.

The remaining question is whether the appellant is in a position to complain of the failure to give the instruction because his counsel failed to submit a requested instruction in writing. Ordinarily, an oral request for an instruction unaccompanied by a written instruction in the form of which it is requested precludes a party from attacking on appeal the failure to give the requested instruction. Foreman v. State, 47 So.2d 308 (Fla.1950); Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968). However, our supreme court in Brown v. State, 206 So.2d 377 (Fla.1968), held that in view of the judge’s response that he was not going to give a charge on the subject which had been orally requested, the submission of a particular formal written instruction was unnecessary to preserve the point for appeal because this would have been a useless gesture.

Here, appellant’s counsel specifically stated the subject matter of his requested instruction and cited the court to a case which strongly suggested the need of the instruction to be given. Keeping in mind that the court always has the responsibility to instruct the jury on the law of the case, that this was a criminal rather than a civil action, that the point was critical to the appellant’s defense, and that the language of such an instruction could have easily been adapted from the Frank case, we hold that the court erred in failing to instruct the jury that knowledge by the appellant of the presence of the firearm was essential to conviction of the crime.

REVERSED and REMANDED for a new trial.

BOARDMAN, C. J., and SCHEB, J., concur.


author: OTT, Judge.

text:
    William MANUEL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1493.
    District Court of Appeal of Florida, Second District.
    April 27, 1977.

      Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of second degree murder. We reverse and remand for the imposition of a sentence of manslaughter for reasons hereinafter stated.

On the night of March 26, 1976, Robert Jackson, 10, was playing with Wendell Elliott, 13, in the vicinity of Janie Mae Hayes’ house. The house fronted on Ohio Street in Lake Wales. The boys were playing “chase” — a game which rewards silence and stealth. They were playing so quietly and the night was so dark that a woman sitting on a nearby porch was unaware of their presence.

Earlier that night, Louise Manuel, wife of the appellant, had come to Ms. Hayes' house and accused a lodger, Ella Mae Kindrick, of having an affair with her husband. An argument ensued, after which Mrs. Manuel left the area.

The appellant was in a bar when he heard that his wife had been involved in a tiff. He obtained his .32 caliber pistol and began walking down Ohio Street toward the Hayes house. Upon reaching the area in front of the Dunlap house — two doors from the Hayes house — Manuel stopped walking when he saw Ella Mae Kindrick on the Dunlap front porch. He said to her, “Who’s doing this to my wife?” . . . “Who’s that messing with my wife?” He then fired a single shot into the ground.

After firing the first shot, Manuel proceeded to a lightpost (the light was broken) in front of the house between the Dunlap and Hayes houses. At this point, Wendell Elliott, having heard the shot, ran from the rear of the Hayes house to a point about three feet from Manuel. Once there, Wendell called for Robert, but received no answer. The record contains no indication that Wendell attempted to warn Manuel that Robert was in the area.

About three minutes after firing the first shot, Manuel fired another shot. According to Ms. Kindrick, from her vantage point on the Dunlap porch she could not tell exactly in which direction Manuel had pointed the pistol when he fired the second shot. On direct examination, Wendell Elliott testified that he could not tell at what, if anything, Manuel was aiming. On cross-examination, however, Wendell testified that the gun was pointed in the general direction of an area on the far side of Ms. Hayes’ front yard where a trash barrel and other garbage containers were located. Nothing in his testimony indicated he could actually see the trash barrel and other garbage containers. Nothing in his testimony indicated he knew where Robert Jackson was at the time the second shot was fired.

The deputy sheriff who took Manuel into custody testified that Manuel asked about Jackson’s condition and stated that he had not intended to hit the boy and was sorry about it. According to this deputy, Manuel did not indicate whether or not he knew the boy was in the area, but did say that “he knew he hit the boy when he shot” and that “the boy got in the way.”

The testimony was uncontradicted that Ohio Street was very badly lit, especially in the area where the boys were playing. A police photographer who arrived soon after the shooting testified that one could not see where to walk without a flashlight.

The record is somewhat sparse with regard to Manuel’s mental state. The deputy who took Manuel into custody testified that Manuel stated that “he had got his pistol to try to protect his wife, stop the fight, keep anybody from hurting her.”

The statute governing murder in the second degree, Section 782.04(2), Florida Statutes, provides in relevant part:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree .

The Florida Standard Jury Instruction for murder in the second degree provides as follows:

An act is one imminently dangerous to another and evincing a depraved mind regardless of human life if it is an act (or a series of acts) which
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another;
2. is done from ill will, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.

Number 2 above amounts to what is frequently termed malice. The depravity of mind required in second degree murder has been equated with malice in the commonly understood sense of ill will, hatred, spite or evil intent. Ramsey v. State, 114 Fla. 766, 154 So. 855, 856 (1934); see Huntley v. State, 66 So.2d 504, 507 (Fla.1953); Turner v. State, 298 So.2d 559, 560 (Fla. 3d DCA 1974); Bega v. State, 100 So.2d 455, 457 (Fla. 2d DCA 1958).

Within the category of second degree murder there exist varying gradations of cases. The reason for this is that some acts are simply more depraved than others. For example, in Weaver v. State, 220 So.2d 53 (Fla. 2d DCA 1969) the court found the evidence to overwhelmingly support a finding of malice. In Weaver, the victim was a police officer. He was responding to the scene of a domestic dispute at the Weaver household. When Weaver resisted the officer’s illegal attempt to enter his home, the officer maced Weaver. Weaver then disarmed the police officer, pursued him, ignored the officer’s pleas for mercy, expended all the bullets in his gun in shooting the officer in the back and made an immediate res gestae exclamation acknowledging the killing. The court found these facts furnished more than a sufficient basis for a finding of the requisite depravity of mind. See Luke v. State, 204 So.2d 359 (Fla. 4th DCA 1967).

Another “strong” case is that of Grissom v. State, 237 So.2d 57 (Fla.3d DCA 1970). In Grissom, the defendant, a junior high school student, was disciplined by a teacher for a rule violation. Upon being disciplined, the defendant threatened to return and kill the teacher. A short time later he did return armed with a handgun and fired two shots at the teacher, wounding but not killing him. While fleeing the building after shooting the teacher, he fired one shot up a stairway in the school building. That shot struck and killed a student standing on the stairs.

Second degree murder convictions were also upheld in cases involving the pointing of a weapon at a vital area of the body before the weapon discharged. In Edwards v. State, 302 So.2d 479 (Fla.3d DCA 1974) the court found that the act of the defendant in pointing his gun at the victim’s head, waiting until the victim had taken three steps backward, and then firing the gun, to be both depraved and imminently dangerous. See State v. Bryan, 287 So.2d 73 (Fla.1973).

In Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969), the defendant had pointed a shotgun at the head of the deceased. The defendant stated that he “had a gun” and that she (the deceased) “should go out . and act like a squirrel and if he killed her ... it wouldn’t be no accident.” The gun discharged striking the deceased in the face and killing her. The court found that even if it accepted the defendant’s contention that the gun had fired upon closing the breach that such an act committed while a gun is purposely pointed at the head of another from a very short distance certainly implied malice.

The instant case contrasts with the “pointed gun” cases in that Manuel pointed his gun in a direction (toward the garbage area) where one would think a shot could not result in harm to any person. In addition, the lack of any substantial evidence of malevolence directed toward any person strongly suggests to this court that Manuel’s conduct, while certainly culpable and inexcusable, falls far short of malice.

The statute governing manslaughter, Section 782.07, Florida Statutes, provides in relevant part:

The killing of a human being by the . culpable negligence of another, without lawful justification shall be deemed manslaughter.

The Florida Standard Jury Instruction for manslaughter defines culpable negligence as follows:

Culpable negligence is negligence of a gross and flagrant nature and consists of more than a mere failure to use ordinary care. Culpable negligence is consciously doing an act or following a course of conduct which any reasonable person would know would likely result in death or great bodily injury to some other person, even though done without the intent to injure any person but with utter disregard for the safety of another.

In Savage v. State, 152 Fla. 367, 11 So.2d 778, 779 (1943), the court defined culpable negligence as that conduct which showed a

gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

See Preston v. State, 56 So.2d 543, 544 (Fla.1952); Chieves v. State, 328 So.2d 264, 265 (Fla. 1st DCA 1976); Getsie v. State, 193 So.2d 679, 681-82 (Fla. 4th DCA 1966).

In the manslaughter area, one distinct line of cases involves accidental shootings in which manslaughter convictions were not upheld. As with the second degree murder cases, these “accident” cases are not all alike; some illustrate more serious and reprehensible conduct than do others. For example, the Getsie case involved an auxiliary policeman who on the day after Christmas, in attempting to sit on his wife’s lap, acci-dently shot her with a gun which she had given him as a present the day before. Another “totally accidental” case was that of Walsingham v. State, 272 So.2d 215 (Fla. 2d DCA 1973). There, the defendant was holding a rifle on his lap in his bedroom while examining it. The rifle accidentally discharged. The bullet passed through a door and a wall and eventually struck one of defendant’s children, killing him. See Weinstein v. State, 269 So.2d 70 (Fla. 1st DCA 1972) (firecracker explosion caused defendant, holding a rifle, to jerk upward and discharge the rifle).

Two other “accident” cases, a bit stronger on the facts, were Parker v. State, 318 So.2d 502 (Fla. 1st DCA 1975) and Sharp v. State, 120 So.2d 206 (Fla.2d DCA 1960). In Parker, the defendant was “fooling around” by waving his pistol around in the cab of a moving truck. At one point, he waved the pistol past the decedent’s head when it went off. The fact that the defendant had the hammer positioned in the safety notch and believed the gun would not fire was considered an important factor.

In Sharp, the defendant intentionally pointed a loaded shotgun in the direction of a crowd for the purpose of restoring order. He then stumbled and the gun fired acci-dently, killing a man. An important factor in the defendant’s not being convicted was his bad leg which apparently precipitated the stumbling and resultant firing of the gun.

One step beyond the “accident” cases are those in which the actual shooting was certainly accidental, but the act fits within the culpable negligence standard. In Williams v. State, 336 So.2d 1261 (Fla. 1st DCA 1976), a conviction for manslaughter was upheld. In that case there had been a bar fracas in which the appellant had been involved. During a lull in the fighting a vehicle in which the victim was riding arrived at the bar. When the driver of the vehicle pulled a shotgun out of his trunk the appellant— observing this — took his shotgun out of his truck and held it pointed toward the ground. As he shifted his grasp the shotgun discharged.

In McBride v. State, 191 So.2d 70 (Fla. 1st DCA 1966) a conviction for manslaughter was also upheld. The court found that the defendant “needlessly [had] on his person a deadly weapon which he brandished . in a careless and reckless manner.” The court stated that the defendant “set the stage for the tragedy which ultimately followed (an accidental shooting) even though he may have had [no] intention of killing the decedent.” 191 So.2d at 71. See Dolan v. State, 85 So.2d 139 (Fla.1956).

It is submitted that the facts in the instant case, although clearly indicating more culpable conduct than the facts of the non-manslaughter “accident” cases, supra, are not sufficient to warrant a conviction for second degree murder. Rather, if the McBride or Williams facts do not fall within second degree murder, i.e., they do not make out a prima facie case of a depraved mind, then it is inescapable that the facts in the instant case fall far short of second degree murder. In the instant case there was no evidence that the appellant either observed the victim or had any notice (actual or constructive) of his possible presence.

Thus, the noiseless playing of the victim, the inky blackness of the night and the lack of demonstrated ill will on the part of the appellant point more toward culpable negligence than the evincing of a depraved mind regardless of human life.

REVERSED and REMANDED.

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

      . “The legal and technical sense of the word ‘malice’ differs from its sense in ordinary or common speech. In the technical sense it is a term of art importing wickedness and excluding a just cause or excuse. . . . Malice in law refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person’s conduct toward that citizen.” Ramsey, supra, 154 So. at 856.


text:
    Carolyn S. MOSES, Appellant, v. Henry E. MOSES, Appellee.
    No. 76-1638.
    District Court of Appeal of Florida, Second District.
    April 27, 1977.

      Franklyn J. Wollett, and Crockett Far-nell, of Nixon & Farnell, Clearwater, for appellant.
    John T. Blakely, of Johnson, Blakely, Pope & Bokor, Clearwater, for appellee.
   SCHEB, Judge.

In this dissolution of marriage proceeding appellant/wife contends the trial court’s award of alimony was inadequate. As relates to the amount of rehabilitative alimony awarded, we agree; otherwise we affirm the trial court.

Essentially, the facts are these: The parties married in 1957 and have two children, ages eight and fifteen, who will be in the wife’s custody. The husband is forty-one and the wife forty-two. The husband is an engineer with an annual salary of approximately $23,000. The wife has a high school education, plus a year of night school. She was a secretary for a few years after she married; however, she was not employed from 1961 until 1975. Recently she has been performing some part-time clerical and bookkeeping work for which she has received minimal sums.

The wife’s stated objective is to obtain a nursing degree through a two-year course at a community college where she has already enrolled to update her educational background. She estimated the nursing program would require an outlay of $1320 in addition to her ordinary living expenses. If she successfully completes the nursing course, she anticipates that once employed she would command a salary between $8,000 and $10,000 per year.

The parties own their home jointly. It is valued at approximately $17,500 and is encumbered by a mortgage of $5,420, payable at $68 per month. The court awarded the wife exclusive possession of the home place until the younger child attains majority or until the wife remarries. In the meantime, the husband and wife are each required to pay one-half of the mortgage payments, insurance, and maintenance expenses. The court awarded child support of $150 per month per child, and required the husband to continue medical insurance for the children as long as it is available to him on a group basis from his employer. Beyond the home place, their assets were modest; however, the parties were relatively free from debts beyond the mortgage. Upon dissolution, they became tenants in common of their jointly owned securities worth approximately $7,500. Each was awarded one of their two automobiles.

The wife sought permanent and rehabilitative alimony; however, she was awarded only $100 per month rehabilitative alimony for thirty months. The husband was required to pay $84.50 court costs and to contribute $450 toward the wife’s attorney’s fees.

Appellant contends the award of rehabilitative alimony is inadequate. Moreover, she claims the trial court should have granted her not only periodic permanent alimony but also should have awarded her the marital home as lump-sum alimony. Finally, she says the court erred in not requiring the husband to maintain medical insurance for the children irrespective of its continued availability to him on a group basis through his employer.

It is well settled that the law vests broad discretion in a trial judge in determining amounts required for alimony and support. Absent a clear showing of abuse of discretion, the judgment of a trial court in these matters should be upheld regardless of the merits of the award when considered de novo. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976).

We find no basis to disturb the award in this case insofar as relates to the court’s denial of lump-sum and permanent periodic alimony. Likewise, the stipulation concerning medical insurance for the children when viewed in context of the total support awarded does not indicate an abuse of discretion.

Appellant places great reliance on Lash v. Lash, 307 So.2d 241 (Fla.2d DCA 1975), where this court remanded for an award of permanent alimony. In Lash there was a slightly older wife married for twenty-six years, with some evidence that her health was impaired. There was little evidence of her potential for self-support. While arguably this case may be said to be different only in degree, that degree of difference is significant.

From the testimony, it appears the wife has a potential for self-support. Commendably, she has the initiative to create a secure economic future for herself. The trial judge, we presume, concluded that her goal of becoming a nurse was an attainable one, and that she required rehabilitative alimony for thirty months to assist her in realizing that goal. We cannot say that he abused his discretion in determining the wife’s potential could be realized through rehabilitative alimony and that permanent alimony was not required. The wife testified she needs $200-300 per month, in addition to the child support she will be receiving.

The trial judge correctly perceived the wife’s need to rehabilitate herself. Once having determined rehabilitative alimony was appropriate, it was incumbent upon the court to award the sum required to assist her. This benefits not only the wife but also the husband; for should it develop the wife’s rehabilitation is not realized, through no fault of her own, the court may consider awarding additional rehabilitative or even permanent alimony as may be appropriate. Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975); Markgraf v. Markgraf, 320 So.2d 27 (Fla.2d DCA 1975). Considering the wife’s background and recognizing that she has been out of the work force for many years, it would be unfair to expect her to support herself while she is being trained for a new career. Certainly $100 per month will not suffice for her expenses while she is a full-time student and while still raising two children.

Accordingly, we reverse that part of the final judgment awarding the wife $100 per month rehabilitative alimony. We remand to the trial court with directions that the thirty-month award be increased to such an amount, not less than $200 per month, as the trial judge determines to be reasonable. In all other respects the final judgment is affirmed.

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


text:
    Sammie Lee COX, Appellant, v. STATE of Florida, Appellee.
    No. 76-1742.
    District Court of Appeal of Florida, Second District.
    April 27, 1977.
    Rehearing Denied May 20, 1977.

      James R. Birkhold, Florida Legal Services, Inc., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of sexual battery and received an indeterminate sentence of three to ten years. Upon appellant’s motion to correct sentence, the sentencing judge deleted the three year portion of the sentence and gave appellant a determinate sentence of ten years.

Having determined to give the appellant an “indeterminate sentence” the only lawful sentence allowable under Section 921.18, Florida Statutes was one requiring a minimum of 6 months. We therefore affirm the judgment of conviction but remand for the entry of an indeterminate sentence of six months to ten years.

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


text:
    Rufus P. BROWN, Appellant, v. D. P. VASILIADES and D. P. Vasiliades d/b/a Seaside Restaurant and Auto-Owners Insurance Company, Appellees.
    No. EE-464.
    District Court of Appeal of Florida, First District.
    April 28, 1977.
    Ronald A. Nour, Daytona Beach, for appellant.
    Marvin B. Nodel, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellees.
   PER CURIAM.

Appellant seeks reversal of an order of the trial court vacating a default, citing Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974). In that case we affirmed an order of the trial court denying a motion to vacate. Orders of trial courts reach us clothed with a presumption of correctness whether the order denies or grants a particular motion. Further, as recited in Metcalf v. Langston, supra, citing and quoting from North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), the law favors settling disputes on the merits and “to stand less upon strict rules of practice.”

AFFIRMED.

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


author: PER CURIAM. ERVIN, Judge,

text:
    Sallie Mae BROWN and John Ivory Brown, as Administrators of the Estate of Mack Ivory Brown, Deceased, Appellants, v. CITY OF ALACHUA, Florida, a Municipal Corporation, Appellee.
    No. BB-119.
    District Court of Appeal of Florida, First District.
    April 28, 1977.
    Aaron A. Green, Gainesville, for appellants.
    Toby S. Monaco of Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment is affirmed.

MILLS, Acting C. J., and DURDEN, ROBERT, Associate Judge, concur.

ERVIN, J., concurs specially.

ERVIN, Judge,

concurring specially:

This is an appeal from a final judgment based upon a directed verdict in a wrongful death action granted at the conclusion of all the evidence. A few days before the accident the City of Alachua had repaired a water pipe located under Southeast Fourth Avenue. In order to carry out the repairs, a section of road approximately four feet long and covering the entire width of the westbound lane was dug out; after repairs were completed, the hole was filled with lime rock, leaving an elevated area approximately two inches higher than had previously existed. On the day of the accident, one Jimmy Rye was traveling home in the westbound lane and as he approached the repair area, he decided to go around it rather than directly over it. He drove into the eastbound lane and struck the plaintiffs’ decedent who was walking on the shoulder of the road. On the day of the accident, Mr. Rye saw no warning devices as he approached the area, although he was aware that the area had been repaired since he had gone over it on several previous occasions. The plaintiff’s fourth amended complaint alleged that the City of Alachua was negligent in failing to resurface the roadway as it had existed prior to the repairs; or in the alternative, in failing to erect sufficient warnings.

At the conclusion of the evidence, the court granted motion for directed verdict on the following grounds:

“1. Plaintiffs have presented no evidence upon which a jury could infer that Defendant was guilty of negligence or that Defendant’s negligence, if any, was the legal cause of the accident in controversy.
2. The evidence affirmatively shows that the Defendant, CITY OF ALA-CHUA, FLORIDA, did not receive written notice of claim within ninety (90) days of the occurrence of the injury as required by § 95.241, F.S.A., as same was in effect at the time this suit was filed.
3. Plaintiffs have presented no evidence showing that the Defendant, or any of its employees, owed a duty to the Plaintiffs’ decedent differing from that owed to the public generally, nor any evidence showing there was privity or a direct relationship or any contact between any of Defendant’s employees and Plaintiff’s decedent. Therefore, the doctrine of governmental immunity is applicable to the Defendant.”

While I am not persuaded that the lower court’s order directing verdict for the City was correct as to grounds two and three, nevertheless since the motion, in my opinion, may be sustained for the reason stated in ground one, I concur in the per curiam affirmance solely on the basis that the City could not reasonably have foreseen that the fatal injury would have occurred to decedent as a consequence of its repairs to the street.

In determining whether or not to grant a motion for directed verdict, the trial court should of course be guided by the rule that it must consider the evidence in the light most favorable to the party against whom the directed verdict is asked. A leading case in our District concerning the subject of proximate cause and foreseeability in negligence actions is Pope v. Pinkerton-Hayes Lumber Company, 120 So.2d 227 (Fla. 1st DCA 1960). Plaintiff, a sawmill owner, sued a road construction contractor whose employee had negligently severed a telephone cable with a bulldozer. Later, when the plaintiff’s night watchman was unable to telephone the fire department to report a fire in the sawmill, the fire spread and caused extensive damage. On several prior occasions when fires had occurred at the mill, each time the local fire department had arrived on time in response to calls and thereby substantial damage was prevented. This court reversed a judgment for damages, holding that the cutting of the cable was not the proximate cause of the damages caused by the fire, stating:

“The principle tests are the following: (a) ‘Foreseeability’, by which, even if the defendant has been negligent there can be no recovery for an injury that was not a reasonably foreseeable consequence of his negligence, although according to the decisions from some jurisdictions the particular injury or the manner in which the hazard operated need not have been clearly foreseeable; (b) ‘Natural and probable consequences’, by which the actor is liable for all the natural and probable consequences of his negligence; (c) ‘Substantial factor’, by which the actor is liable if his negligence was a substantial factor in producing the injury complained of; (d) The view that if it is established that the defendant was negligent, he is liable for any injury actually and naturally resulting from his act, whether such injury was foreseeable or probable or not. This latter view appears to ignore any test that would limit liability once causation is established and is not recognized in Florida.” 120 So.2d at 229.

The court concluded that because the defendant Pope could not have foreseen the fire at the time he cut the wire, his negligence was a remote cause of the damage to the mill and he would not be liable for the subsequent damage caused by the fire itself which was an independent, intervening cause. See also Schatz v. Seven-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961); Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961); General Telephone Company of Florida, Inc. v. Mahr, 153 So.2d 13 (Fla. 2nd DCA 1963). But see McCabe v. Watson, 225 So.2d 346 (Fla. 3rd DCA 1969) and Brown v. McArthur Dairies, Inc., 280 So.2d 520 (Fla. 3rd DCA 1963).

In the case on review plaintiffs must make the following showing: (1) They must show some negligence on the part of the City in its repair of the road. Allegations of the failure to warn do not seem to be sufficient where the driver here testified that he had been over the elevated area in the road a number of times and knew of the hazard, if any. (2) It was incumbent upon plaintiffs to show that the accident was reasonably foreseeable by the City leaving the hump in the road which was at most two inches in height. I concur that the plaintiffs did not meet their burden only as to the first ground stated in the court’s order granting the motion for directed verdict.

      . Operator of the drive-in food store breached no duty to customers by failing to erect a curb in front of the store. It was therefore not foreseeable that a driver who parked her car in front of the store would allow her car to roll into the store and cause injury to a customer within it.

      . Driver of truck could not reasonably foresee that a pebble thrown from the truck’s rear wheels would strike pedestrian in eye.

      . Utility company could not foresee that a motorist would crash through a barricade around a manhole, resulting in an explosion after car struck a can of gasoline and open flame pots left within the enclosure, thereby causing injury to a nearby bystander.

      . Motion for judgment n. o. v. reversed. Court held that it was a jury question whether a defendant, by permitting his parked car to protrude into street, which caused driver of another car to drive onto wrong side of road, thereby striking plaintiff’s child, was proximate cause of the injury.

      . Court held that it was a jury question whether dairy was responsible for negligence in leaving a milk crate, over which a customer tripped, in a supermarket aisle which was not removed by supermarket employees during a six hour period. Court concluded that a jury could reasonably find that both the dairy and the supermarket were negligent.


author: RAWLS, Judge. SMITH, Judge,

text:
    Bobby CARVER, Appellant, v. STATE of Florida, Appellee.
    No. CC-283.
    District Court of Appeal of Florida, First District.
    April 29, 1977.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

The two points posed by appellant, viz:

The Trial Court Prejudicially Erred in Refusing to Instruct the Jury on the Necessarily Included Lesser Offenses of Assault, Battery, and Assault and Battery. The Trial Court Prejudicially Erred in Overruling Appellant’s Objections to the Hearsay Testimony of Robert Carver and in Permitting Said Testimony to be Presented to the Jury Under the Res Gestae Exception.

are meritorious; thus, the judgment of conviction must be reversed.

Carver was convicted of committing a lewd and lascivious assault upon his 10-year old female child. At the charge conference, the trial judge stated:

“. . .1 don’t consider that the assault is a lesser included offense, but I am going to define assault. I am going to give the jury the definition of assault, because this case, if anything, is lewd and lascivious assault. . . . I’m not going to charge it [assault] as a lesser included offense. . . .”

Counsel for Carver then objected to the court’s refusal to instruct on the lesser included offenses of assault and assault and battery.

“Multitudinous” is an apt adjective to describe the words that have been written in this jurisdiction on the subject of lesser included offenses. The state relies, primarily, upon the Supreme Court’s opinion in DeLaine v. State, 262 So.2d 655 (Fla.1972), wherein the defendant was charged with rape. The Supreme Court held as harmless error the refusal of the trial court to instruct upon a lesser included offense which is two steps removed. In so holding, the court pointed out that the evidence overwhelmingly established repeated penetration of the victim; that the jury had the opportunity to convict of the first step lesser included offense; and since the jury re turned a verdict of guilty of the primary offense, failure to instruct upon assault and assault and battery was harmless error. However, State v. Terry is directly on point. The Supreme Court specifically held that when an accused is charged with committing an offense that requires proof of some physical contact with the victim, the greater crime necessarily includes the crime of assault and battery. Sufficiency of the evidence to support the crime charged does not obviate the necessity of appropriate instructions being given on lesser offenses included within that charge. This court held in Allison v. State, 162 So.2d 922, “that in Florida simple assault and assault and battery are lesser offenses necessarily included in the crime of assault with intent to commit rape”. In recently reaffirming its decision in State v. Terry, supra, the Supreme Court held in Lomax v. State:

“. . . when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constituted prejudicial error and is thus per se reversible.”

It is legally impossible to prove an assault upon a child of the age of 10 years, in a lewd, lascivious or indecent manner, without also proving bare assault or assault and battery.

Appellant’s second point relates to the trial court’s permitting hearsay testimony to be presented to the jury under the res gestae exception. The victim’s 13-year old brother testified that about “a month or two before it was reported”, his sister told him about an hour after she had left her father’s room that “daddy had been messing with her . . . she told me, you know, daddy made her pull her pants down.” On cross examination, this witness testified that he had noticed Bernice (the victim) going into her father’s room about four or five times a week over a period of time during October, November and December. At one point, when he was being examined on cross, the brother testified as follows:

“Q [defense counsel] Now, the time that she told you about this — can you tell us about that? I think she told you in November about this?
A Yes, sir.
Q How come she told you at that time?
A Because I asked her what was happening.
Q And did you see her in the room that day with her father?
A No, sir.
Q You didn’t see her in the room that day when she told you the story about what happened?
A I don’t actually remember.
Q Where did she tell you this story, do you remember?
A No, sir.
Q Was it in the house or outside the house?
A I think it was inside the house.
Q In the house?
A Yes, sir.
Q Was your father home?
A No, sir; I think he was gone.
Q He was gone?
A Yes, sir.
Q How long was he gone — do you know?
A No, sir.
Q Was he there that day?
A Sir?
Q Was he there that day?
A I think so; yes, sir.
Q And did Bernice tell you this in the nighttime?
A I think it was daytime.
Q You think it was daytime?
A Yes, sir.
Q Where was your father — do you know?
A No, sir.
Q What time did your father leave — do you know that?
A No, sir.
Q And did you see your father and Bernice in the room that day?
A No, sir; I don’t think so.
Q You don’t think you did. That’s the first time Bernice had told you about what happened?
A Yes, sir.”

In the absence of the jury, the witness testified at one point that the second time was in the daytime, while at a later point, he remembered it was in the nighttime when she told him; he did not see his sister leave the bedroom and that it was “about an hour later” when she told him. The trial court denied defendant’s motion for mistrial with the observation that: “. . . you may inquire along the lines of your questioning, that he had questioned her the first time in November.” Further, cross examination elicited from this witness the fact that the victim was not upset when she came out of her father’s room and that the witness told his mother of this event “during Christmas”.

The term “res gestae” comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of content. In determining spontaneity, the time element is weighed along with such factors as the condition of the victim at the time of the particular utterance. Absence of evidence that the victim was dazed, excited, hysterical, bruised or disheveled, at the time of the utterance, has been stressed in cases where such utterance was held not a part of the res gestae. A key element in determining whether a statement is or is not a part of the res gestae is the interval of time between the principal act or main event and when the statement is made. Here, the complaining witness testified that the first incident constituting the crime charged occurred on her birthday in August, but her statement to her brother admitted as part of the res gestae was made one hour after another occurrence in November.

Weighing the victim’s testimony as to the frequent transgressions by her father during the period intervening between August and November, together with the absence of any evidence that she was dazed, hysterical or otherwise upset at the time she made the statement to her brother, together with the numerous previous opportunities that were available for her to utter such statements to her mother and other persons living in the home, along with the lapse of one hour time element, leads us to the inescapable conclusion that this record does not justify applying the res gestae exception to the hearsay rule.

The judgment appealed is reversed and the cause remanded for a new trial.

BOYER, C. J., concurs.

SMITH, J., concurs in part, dissents in part.

SMITH, Judge,

concurring in part and dissenting in part:

I agree the judgment must be reversed because of error in the jury charge, but I do not conceive it was error to admit evidence of the declaration made by the ten-year-old victim in this case. In my opinion sufficient spontaneity was shown to justify receipt of the evidence. The “res gestae” exception to the hearsay exclusion should be liberally applied to admit such declarations of young children, especially when they corroborate the child’s testimony at trial. See Gray v. State, 184 So.2d 206 (Fla.2d DCA 1966), cert. den., 192 So.2d 493 (Fla.1966); Fitter v. State, 261 So.2d 512 (Fla.3d DCA 1972); Annot., 88 A.L.R.2d 1368 (1962).

      . The charged offenses were alleged to have occurred between August 1, 1975, and December 24, 1975. During that time Secs. 784.02 and .03, Fla.Stat. (1973), made assault and assault and battery separate offenses.

      . Hammer v. State, Fla.App., 343 So.2d 856, opinion filed December 9, 1976; Hand v. State, 199 So.2d 100 (Fla.1967); Brown v. State, 206 so.2d 377 (Fla.1968); State v. Anderson, 270 So.2d 353 (Fla.1972); Silver v. State, 174 So.2d 91 (Fla. 1st DCA 1965); Rafuse v. State, 209 So.2d 260 (Fla. 1st DCA 1968), cert. den., Fla., 214 So.2d 626; State v. Terry, 336 So.2d 65 (Fla. 1976).

        ,Brown v. State, supra.

      . State v. Terry, supra.

      . Lomax v. State, Fla., 345 So.2d 719, opinion filed March 31, 1977.

      . “The exception to the rule of hearsay that is termed ‘res gestae’ is not an elixir that transforms a ‘keg of worms’ into respectable evidence.” Skipper v. State, 319 So.2d 634 (Fla. 1st DCA 1975).

      . Annot., 19 A.L.R.2d 579 (1951).


text:
    Clyde R. HUFFER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-792.
    District Court of Appeal of Florida, Second District.
    April 29, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahasee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

This appeal is from the trial court’s denial of appellant’s motion to suppress some marijuana plants seized without a warrant from a “hothouse” located on appellant’s residential premises. Appellant pled nolo contendere to a violation of Section 893.13, Florida Statutes (1975), which proscribes the unlawful manufacture of a controlled substance. He specifically reserved the right to appeal the trial court’s denial of his motion to suppress. Adjudication of guilt and imposition of sentence were withheld, and appellant was placed on probation for four years.

Appellant contends that the hothouse was within the curtilage of his residence, and thus deserving of constitutional protection. The state, however, argues that no search warrant was required since the area searched was outside the scope of that protection. We agree with appellant and reverse.

Rosario Caligione was a police officer with the Tarpon Springs Police Department. During his off-duty hours he operated an ice-cream parlor. A customer of the ice-cream parlor informed Officer Caligione that the appellant was growing marijuana at his home in Pasco County. Officer Cali-gione decided to investigate the matter personally, even though he had no police authority in Pasco County. Thinking that appellant’s residence was within the limits of Port Richey, he enlisted the aid of Officer Douglas of the Port Richey Police Department. The two officers drove to the appellant’s residence at approximately 11:30 P.M., without making any attempt to first procure a search warrant.

The officers parked their car a short distance down the road from appellant’s residence, and walked through his side yard into his back yard. As they approached the hothouse, a small structure built of lumber and draped with sheets of plastic, they noticed a small tear (approximately 18") in the plastic. Officer Douglas shined his flashlight into the tear and observed marijuana plants inside. While Caligione remained at the scene, Douglas went back to the car and radioed the Pasco County Sheriff’s Department, as it had become apparent that the appellant’s residence was just outside the city limits of Port Richey. Two Pasco County deputies soon arrived, followed by a third a short time later. These three officers also viewed the marijuana plants.

The protection afforded “houses” in the Fourth Amendment to the U.S. Constitution and the Declaration of Rights of the Florida Constitution also includes the curti-lage, i. e., the ground and buildings immediately surrounding a dwelling and customarily used in connection with it. Dinkens v. State, 291 So.2d 122 (Fla. 2d DCA 1974). The hothouse in this case certainly falls within this concept. It was no farther than forty feet from the appellant’s dwelling, and perhaps as close as ten feet (testimony differs on this point). The very nature of the hothouse indicates that it was used frequently, and in connection with appellant’s home.

In the past decade a new concept of Fourth Amendment protection has evolved. Rather than being guided solely by the common law property approach, the courts have tended to determine whether there was a “reasonable expectation of privacy” by the individual. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We recognized this approach in Olivera v. State, 315 So.2d 487 (Fla. 2d DCA 1975). There the police officer stood on the lawn outside the defendant’s window and listened in. We held that the defendant could have reasonably expected that no one would have overheard the activities in his apartment by such an invasion of his privacy. In State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975), we held that the defendants did not have a reasonable expectation of privacy while handling stolen jewelry on their front porch. There the defendants’ activities could have been observed by anyone from the public street.

The state, while recognizing the Katz view, maintains that the appellant could not have had a reasonable expectation of privacy because the transparency of the clear plastic sheets may have allowed someone to look in the hothouse from the outside. The fact is that the purpose of the plastic sheets was not to permit viewing, but rather to allow sunlight to enter for photosynthesis to occur. The hothouse was not located on or near a public thoroughfare. See State v. Belcher, supra. Rather, it was located behind the appellant’s residence in a rural area and the plants growing therein were not plainly visible to the public. Moreover, it was not operated as a commercial venture. It was an adjunct to appellant’s residence and was maintained for personal purposes. To observe the plants required not only a significant encroachment upon the appellant’s residential premises, but also an intrusion on his right to privacy as well.

Under either the traditional curtilage approach or the more contemporary reasonable expectation of privacy approach, the appellant’s hothouse was deserving of constitutional protection.

Accordingly, the judgment of conviction is vacated. This cause is remanded with directions to grant appellant’s motion to suppress and for such further proceedings as may be consistent with this opinion.

BOARDMAN, C. J., and GRIMES, J., concur.