text:
    Howard A. HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1197.
    District Court of Appeal of Florida, Second District.
    June 2, 1978.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and Ken Glover, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We relinquished jurisdiction of this cause to the trial court with directions that it hear and consider the testimony of two police officers concerning the voluntariness of appellant’s confession. Hampton v. State, 354 So.2d 443 (Fla. 2d DCA 1978). We have received and reviewed the testimony of the officers and the findings of the court based on the evidence formerly taken as supplemented by this additional testimony. We find no error in the trial court’s holding that appellant’s confession was voluntarily given. We therefore affirm appellant’s conviction for robbery and the sentence imposed pursuant thereto.

SCHEB, Acting C. J., and RYDER and DANAHY, JJ., concur.

      . We note that the trial court has deleted the “hard labor” provision from appellant’s judgment and sentence.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Charles Nolan DEAL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1684.
    District Court of Appeal of Florida, Second District.
    June 2, 1978.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Deal was tried by jury and convicted of attempted first-degree murder and conspiracy to commit kidnapping. He was sentenced to 20 years imprisonment for the attempted murder and 15 years on the conspiracy conviction with the sentences to run concurrently. Appellant seeks to overturn both convictions.

Appellant raises three issues. First, whether the evidence was sufficient to establish premeditation in his attempted-murder conviction; second, whether the evidence was sufficient to prove conspiracy to kidnap; and third, whether the court erred in failing to instruct the jury that conspiracy to falsely imprison is a lesser-included offense of conspiracy to kidnap. We reject appellant’s contentions on the first and second issues raised; on basis of the record before us we do not reach the third issue. We affirm both convictions.

Thirteen witnesses testified on behalf of the state, and there were no significant conflicts. The defense did not choose to present any testimony. The state’s evidence revealed that appellant had met with the victim, Frank Liguori, on several occasions in regard to payment of money for a quantity of marijuana previously delivered to Liguori. The last of these meetings occurred just a few days before the incident which led to the charges against appellant. At this meeting appellant told the victim that he better come up with the money or else someone would do “weird things” to him. Appellant further admonished him that people who don’t pay what they owe sometimes get hurt.

On the day in question appellant, another man, and two women drove to a point near the victim’s house. On the way they discussed a plan whereby one of the females, unknown to the victim, would approach the victim and entreat him to come to the car. Once there, the plan was for appellant to force his victim to accompany them to Tampa. Appellant and his companions also discussed roughing up the victim, and keeping him on bread and water.

On arriving at their destination appellant concealed his car, and the designated female approached the victim where he was working in his front yard. As a ploy, the woman said her car was broken down a short distance down the street and asked for his assistance. As the victim approached the vehicle as requested, appellant got out of the car and, displaying a gun, ordered the victim to get in. When the victim realized what was developing he ran toward his house. At this point appellant fired one shot at him which missed. Then appellant fired a second shot which hit the victim in the hip, and finally a third which hit him in the arm. By this time the victim was able to get into his house without being further injured. Fortunately, neither of the- wounds' proved to be fatal.

Appellant correctly points out that premeditation is an essential element of attempted first-degree murder, just as it is for the offense of first-degree murder. Driggers v. State, 164 So.2d 200 (Fla.1964). We find appellant’s statement and actions provided ample evidence to support the jury’s findings that he acted with a premeditated design to effect the death of his victim.

We also find sufficient evidence to support the conviction for conspiracy to kidnap. There was direct evidence that appellant was a party to the pflanned use of force to make the victim accompany him to Tampa. Although the testimony supporting the charge was obtained from one of the women involved under a grant of immunity, the coordinated efforts of the members of appellant’s party in attempting to lure the victim into their car infers the confederation among appellant and his companions. This circumstantial evidence alone is enough to prove conspiracy. Bass v. State, 172 So.2d 614 (Fla. 2d DCA 1962).

Finally, appellant contends the trial court erred in failing to instruct the jury that conspiracy to falsely imprison under Section 787.02(1)(a), Florida Statutes (1975), is a lesser-included offense of conspiracy to kidnap under Section 787.01(1)(a)(3). We do not reach the merits of this contention because no appropriate request, as contemplated by Fla.R.Crim.P. 3.390, was made to the trial judge to instruct the jury on this subject. Nor does the record before us show any basis for the exception we found in Wilson v. State, 344 So.2d 1315 (Fla. 2d DCA 1977). Therefore, appellant cannot attack on appeal the trial judge’s failure to give such an instruction. Foreman v. State, 47 So.2d 308 (Fla.1950); Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968).

Affirmed.

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


author: DANAHY, Judge.

text:
    James W. DiORIO, Appellant, v. STATE of Florida, Appellee.
    No. 77-1693.
    District Court of Appeal of Florida, Second District.
    June 2, 1978.
    Robert E. Jagger, Public Defender, and Daniel D. Eckert, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Defendant challenges his order of probation in two respects: first, the term of the probation, which is in excess of the maximum permissible sentence for the crime; and second, the imposition of a restitution condition of the probation. We agree with appellant’s position in both respects and remand for resentencing.

Appellant’s car struck and injured an elderly lady who was crossing a street in St. Petersburg. Appellant fled, and was charged with leaving the scene of an accident which resulted in injury, a felony punishable by imprisonment for not more than one year. Section 316.027, Florida Statutes (1977).

Appellant entered a plea of nolo conten-dere. He was adjudicated guilty and sentenced to a term of one year in the Pinellas County jail. That sentence was suspended and appellant was placed on probation for two years. One of the conditions of probation was that appellant make restitution to the victim of the accident in the amount of $1,000 over and above any and all monies paid by any insurance company. Appellant was given no notice that a restitution condition would be imposed, and no opportunity to be heard with respect to that condition of his probation. When the condition was imposed, appellant made no objection.

On this appeal, the state concedes that appellant is correct in his argument that the period of probation could be no more than one year, since the maximum permissible sentence for the crime is only one year. Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). We note that the purpose of the trial judge in imposing a probationary period of two years was to give appellant that much time to meet the terms of the restitution condition, since the trial judge felt that requiring a payment of $1,000 within the space of one year would work a hardship on appellant. Though that purpose is laudable, we nevertheless must hold that the period of probation was excessive by one year.

In any event, however, the restitution condition itself is improper under the holding of the Florida Supreme Court in Fresneda v. State, 347 So.2d 1021 (Fla.1977). In that case, the court established a two part rule for the imposition of a condition of probation requiring the probationer to pay money to or for the benefit of the victim of his crime. First, the condition must not require payment in excess of the amount of damage the criminal conduct caused the victim. Second, before ordering restitution as a .condition of probation, the trial judge should give the defendant notice of the proposed restitution order and allow the defendant the opportunity to be heard as to the amount of damage or loss caused by his offense. Section 948.03(1)(g), Florida Statutes (1977).

Clearly, the procedure specified in Fresneda was not followed in the instant case. Furthermore, the state has conceded on this appeal that the offense with which appellant was charged (leaving the scene of the accident) did not result in or have any relationship to any damage or injury to the victim. Accordingly, no restitution condition could be imposed in this case regardless of the procedure followed.

Appellant suggests that this court modify the order under review by reducing the term of probation to one year and striking the restitution condition, and affirm as so modified. We decline to perform that excision on a sentence which was devised by the trial judge as a whole and should stand or fall as a whole. We choose to return this case for resentencing.

The state has raised the further point that appellant’s silence at the time of sentencing constituted a waiver of any objection to the conditions of probation. We think not. Appellant’s right to appeal an order of probation is granted by Section 924.06, Florida Statutes (1977). We hold that his right of appeal is not contingent upon the registering of objections at the time probation is granted. Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA 1977).

Reversed and remanded for resentencing.

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

      . Appellant was not charged with any offense in connection with the accident itself.


author: McCORD, Chief Judge.

text:
    Alma SANDERS, Appellant, v. NABISCO, INC., a Foreign Corporation, and Lumbermen’s Mutual Casualty Company, a Foreign Corporation, Appellees. MUNFORD, INC., Nabisco, Inc., and Lumbermen’s Mutual Casualty Company, Appellants, v. Alma SANDERS and Rose Feaster, Appellees.
    Nos. FF-500, GG-19.
    District Court of Appeal of Florida, First District.
    June 6, 1978.

      R. K. Roberson, DeLand, for appellant (FF-500) and appellees (GG-19).
    William A. Parsons of Gosney, Cameron & Parsons, Daytona Beach, for appellees (FF-500) and appellants (GG-19).
   McCORD, Chief Judge.

These are consolidated appeals by both parties from a final judgment.

Alma Sanders and her sister, Rose Feast-er, brought suit below against Munford, Inc., Nabisco, Inc., and Lumbermen’s Mutual Casualty Company alleging that they became ill from eating maggott-infested saltine crackers manufactured by Nabisco and sold by a store owned by Munford. The court directed a verdict against plaintiffs as to their claim against Lumbermen’s Mutual Casualty company. The jury exonerated Munford and returned a verdict of $3,500 for Sanders and $1,500 for Feaster against Nabisco. The trial court granted Nabisco’s motion for remittitur as to Sanders directing a $2,000 remittitur or, alternatively, granting a new trial. Sanders elected a new trial and filed this appeal contending that the court erred in not entering judgment in her favor in accordance with the jury’s verdict.

In ordering the remittitur as to the Sanders’ verdict, the trial court found that the verdict was “excessive, arbitrary and unsupported by the testimony and evidence.” The law relating to granting of a remittitur was stated by the Supreme Court of Florida in its opinion in Smith v. Jackson County, 134 Fla. 354, 183 So. 738 (1938), as follows:

“ . . . The rule, however, is now well established that the power of the court to permit or require the entry of a remitti-tur should only be exercised in cases where the amount of excess is apparent or is readily ascertainable.”

The Supreme Court there went on to say:

“It is with great reluctance that the writer declines to approve the action of a conscientious and able trial judge but there is a province in which judges have the supreme responsibility and, likewise, there is a province occupied by juries which judges are not authorized to invade. To warrant a trial judge in setting aside a verdict and granting a new trial, there must be a reason in law for that action. Otherwise, the judge in taking such action invades the province of the jury and departs from the salutory well established principles of American jurisprudence.”

In a case factually similar to the cause sub judice, the Supreme Court in Food Fair Store's of Florida, Inc. v. Macurda, 93 So.2d 860 (1957), declined to set aside a verdict or order a remittitur. There a husband and wife ate worms from a can of spinach purchased at appellant’s store. The Supreme Court said:

“Finally, it is contended that the amount of the verdict is shockingly excessive indicating that the jury was persuaded by sympathy and passion rather than facts and law. We are asked to set it aside or order a remittitur. Ordinarily the amount of damages rests with the jury’s discretion exercised within the limits of the facts and the law applicable. This Court will not upset a jury damages award for alleged exeessiveness unless it can be said that the excess is such as to shock the judicial conscience, or indicates that the jury has predicated its conclusion on passion or prejudice. S. A. Freel Distributing Co., Inc. v. Lenox, 147 Fla. 550, 3 So.2d 157.
* * * * * *
We have not overlooked the cases cited showing smaller verdicts in similar cases from other courts. If we were fixing the amount of the award in the first instance they would be most persuasive. Viewing them as an appellate court, however, the disproportion between the analogies and the case at bar is not sufficient to force us to conclude that the jury here was motivated unduly by passion or prejudice. After all, that is the test.’’

The verdict here is not so excessive as to shock the judicial conscience or to lead to the conclusion that the jury predicated its verdict on passion or prejudice. While perhaps neither the trial judge nor this court would have awarded Sanders as large a verdict as did the jury, neither we nor the trial judge are at liberty to substitute our judgment for that of the jury.

Nabisco’s cross-appeal contends that the trial court erred in failing to grant its motion for directed verdict at the conclusion of the plaintiffs’ case in that there was no evidence that either plaintiff ate any deleterious substance; that there was no causal connection shown by plaintiff between the injury or damage complained of and their eating the saltine crackers. This cause was based upon implied warranty rather than negligence. Although circumstantial, the evidence is sufficient to support the jury’s conclusion that the two plaintiffs ate the deleterious substance and that eating same resulted in their illness. We have considered the other questions raised in the cross-appeal and find them to be without merit. The judgment as to Feaster is affirmed, but the judgment as to Sanders is reversed with directions to enter judgment for her in the amount of the jury’s verdict — $3,500 together with taxable costs.

MELVIN, J., and MINER, CHARLES E., Associate Judge, concur.


author: PER CURIAM. BOOTH, Judge,

text:
    William Gerald DOBBINS, Appellant, v. Helen L. DOBBINS, Appellee.
    No. HH-480.
    District Court of Appeal of Florida, First District.
    June 6, 1978.

      Peter J. Kellogg of Grissett, Humphries & Neder, Jacksonville, for appellant.
    Charles E. Waite of Scruby, Yonge, Cobb & Waite, Orange Park, for appellee.
   PER CURIAM.

Having considered the briefs and arguments of counsel, we conclude the lower court erred in awarding to the wife as lump sum alimony the marital home jointly owned by the parties during the marriage, as well as certain furnishings, fixtures and equipment located therein. The wife neither pled nor presented substantial competent evidence of her entitlement for such award. Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Suhor v. Suhor, 341 So.2d 277 (Fla. 1st DCA 1977); Fuchs v. Fuchs, 356 So.2d 1355 (Fla. 1st DCA 1978). The wife’s petition for dissolution requested only exclusive use and possession of the marital home and the furniture and furnishings within it. As a result the husband was without notice of any claim for lump sum alimony and was prejudiced in his ability to prepare adequately a defense for the award entered. Cf. Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977). The order is otherwise affirmed and the cause remanded for further proceedings not inconsistent with this opinion.

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

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

BOOTH, Judge,

dissenting in part and concurring in part.

I dissent from that portion of the opinion which reverses the award of the marital home and furnishings as lump sum alimony to the wife. Florida Statute § 61.08 provides, in pertinent part, as follows:

“In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both . . (emphasis supplied)

Under the foregoing statute, a party whose petition claims alimony need not specify whether periodic or lump sum payment is sought. In the instant case the wife’s petition claims temporary and permanent alimony. The wife’s need and the husband’s ability to pay are established by the evidence and not at issue here. The trial court has discretion as to the form or method of payment of alimony under F.S. § 61.08, supra, and that discretion was not abused in this case.

The judgment below should remain undisturbed for a number of reasons. First, appellant has failed to furnish this Court with a complete record of the matters considered by the court in the property disposition. The stipulation of the parties as to property disposition and the hearing of August 17, 1977 are not in the record. The husband withdrew from that stipulation after the wife’s petition was filed. The trial court in its final order of dissolution expressly refers to the earlier hearing, to the stipulation of parties as to property and to the fact of the husband’s withdrawal from that stipulation. These matters are pertinent to the husband’s claim of prejudice in the preparation of his case due to his alleged surprise that the wife sought title to the home.

The trial court awarded the wife custody of the minor children of the parties, ages 5 and 7, support money for the children and six months of rehabilitative alimony at $200.00 per month. The court also awarded the wife title to the jointly-owned marital home which is valued at $36,000 and is subject to a $36,000 mortgage. The wife is required to make all payments on the outstanding mortgage as well as to pay insurance, taxes and other expenses of the marital home.

At the time of the dissolution, the wife was earning less than $22.00 per week babysitting in the home. After the separation of the parties, the wife made improvements to the home in order to fit it for use as a day care center which she plans to operate in order to increase her income while caring for the small children born of the marriage.

The husband is periodically away from the area for extended periods on tours of duty with the Navy. His continued ownership of the negligible equity in the home and furnishings serves no purpose other than to require his continued participation in any financial arrangements the wife makes concerning the property. Under these circumstances the trial court correctly awarded title to the wife, as opposed to use and possession, thereby allowing her to make such contracts and commitments in her sole name as are needed to maintain and operate the premises as a home and business.

The trial court was in the best position to consider all these factors, as well as the assets and the respective needs of the parties and the children. The award of the husband’s equity in the home as lump sum alimony was part of the overall disposition of those assets and directly serves the needs of the wife to rehabilitate herself in some earning capacity, while providing shelter for the wife and children. This Court is in no position, particularly in view of the incomplete record, to interfere with the judgment below.

I would affirm.

      . The furnishings of the home are assigned no marketable value by either party and the trial court awarded the husband the specific items of furniture that he requested.


author: BOYER, Judge.

text:
    Anne B. REYNOLDS, Appellant, v. James N. BURT, M. D., Appellee.
    No. II-142.
    District Court of Appeal of Florida, First District.
    June 6, 1978.

      W. K. Lally, Jacksonville, for appellant.
    Charles Cook Howell, III, Jacksonville, for appellee.
   BOYER, Judge.

Appellant (plaintiff below) here appeals from a final judgment granting the defendant’s (appellee’s) motion for summary judgment.

Appellant filed a complaint alleging that appellee negligently performed a surgical procedure known as “fulguration” and that as a direct and proximate result burned a hole in her bladder. Prior to filing her complaint, appellant filed a claim under the Medical Malpractice Reform Act. The mediation panel found appellee not actionably negligent in his care or treatment of appellant.

After answering the complaint, appellee moved for a summary judgment. At the hearing on the motion appellant’s attorney did not object to the trial court’s consideration of portions of the file in the medical mediation action. In that action, the depositions of several doctors were taken. In their depositions the doctors testified that with a fulguration procedure, even with the best of care, bladder perforations will occur; that perforation of a bladder during a fulguration procedure can be expected 10% of the time; that appellee was not guilty of any negligence; and that the treatment which appellant received from appellee did not fall below the standards of care in the area.

Appellant did not introduce any evidence at the hearing in support of her claim, expert nor otherwise, and the trial court granted the appellee’s motion for summary judgment.

In this appeal plaintiff’s primary contention is that where the charge of negligence is based on improper treatment, the question of negligence is a jury question and may be submitted to the jury even in the absence of expert testimony in support of the charge of negligence. Atkins v. Humes, 110 So.2d 663 (Fla.1959). However, in Atkins, the Supreme Court merely said that in many cases involving improper treatment a jury may reach a conclusion without the aid of expert testimony. The Court did not hold that there would never be cases involving a charge of improper treatment in which expert testimony would be required to prove the negligence alleged.

We well recognize that expert testimony may not be required in obvious cases such as when the charge of negligence concerns leaving a sponge or surgical instrument in a patient or where a surgeon amputates the wrong limb. However, in a case such as this, where the expert testimony of several doctors uniformly concur that ap-pellee was not guilty of negligence and appellant failed or refused to introduce any evidence in support of her claim and in contradiction of appellee’s expert witnesses, the entry of a summary judgment was proper. Sims v. Helms, 345 So.2d 721 (Fla.1977); Thomas v. Berrios, 348 So.2d 905 (Fla. 2nd DCA 1977).

Another matter which deserves comment is the action of the trial judge in considering depositions taken in another proceeding which had not been made a part of the record in this case. It is improper for a trial judge to consider matters dehors the record except upon stipulation of the parties, or, of course, when judicial notice may appropriately be taken. One obvious reason for such a rule is that evidence and matters outside the record may not thereafter be properly made a part of the record on appeal for review by an appellate court. However, the appellant did not object in the trial court. Since the point was not preserved on appeal, there is no basis for this court to address the issue.

The judgment appealed from is affirmed.

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


text:
    NEW HAMPSHIRE INSURANCE COMPANY, Appellant, v. Paul CARTER, Jr., and Bertha Lee Carter, Appellee.
    No. JJ-4.
    District Court of Appeal of Florida, First District.
    June 6, 1978.

      Charles A. Schuster of Fisher & Bell, Pensacola, for appellant.
    Eric C. Eggen, Pensacola, for appellee.
   BOYER, Judge.

By this interlocutory appeal appellant New Hampshire Insurance Company (hereinafter New Hampshire), seeks review of a summary final judgment on the issue of coverage, and therefore liability.

Appellees (hereinafter Carter) filed an action in the trial court against New Hampshire, alleging that New Hampshire issued to them a policy of insurance insuring a certain dwelling house owned by them, the contents therein and other related coverage. It was further alleged that on September 4, 1976 they sustained damage and loss to the covered dwelling within the coverage of the policy, resulting in damage to unscheduled personal property located in the dwelling and additional living expenses. A determination of coverage was sought under the provisions of the policy. New Hampshire answered, admitting the issuance and existence of the policy but denied that the damage to the unscheduled personal property was caused by a named peril, contending therefore that the loss was not compensable under the terms of the policy. The Carters filed a motion for summary judgment on the issue of coverage and in support thereof filed an affidavit by Mrs. Carter to the effect that on September 4, 1976 she and her husband, with the assistance of others, had removed the shingles from the roof of the subject dwelling and had partly covered the wood decking with tar paper in anticipation of placing new roofing materials on the roof when a rain storm occurred. As the rain storm progressed tar paper was applied to the remainder of the roof, but the water leaked under the tar paper and through the wood decking resulting in damage to the dwelling and its contents. New Hampshire also filed a motion for summary judgment on the issue of coverage based upon Carters’ complaint, the terms of the policy and Mrs. Carter’s affidavit. Following a hearing the learned trial judge indicated an intention to grant Carters’ motion on the ground that the policy contemplated that the insured would make repairs. An order of partial summary judgment on the issue of coverage was entered, thus this appeal.

It is clear that Carter was afforded standard homeowner’s insurance coverage to their dwelling and contents and that the dwelling and contents was damaged on September 4, 1976 when a rain storm occurred while the plaintiffs were reroofing the dwelling. New Hampshire paid all damages to the dwelling since the dwelling was insured against all risks, but denied coverage for the unscheduled personal property on the asserted ground that no named peril was involved in the loss.

The homeowner’s policy issued to the Carters states under the heading PERILS INSURED AGAINST that the policy insures under: COVERAGE C — “Unscheduled Personal Property” against direct loss to the property covered by the following perils as defined and limited, except as otherwise excluded:

3. WINDSTORM OR HAIL, Excluding Loss:
b. caused by rain, snow, sand or dust, all whether driven by wind or not, unless the building containing the property covered shall- first sustain an actual damage to roof or walls by the direct force of wind or hail and then this Company shall be liable for loss to the property covered therein caused by rain, snow, sand or dust entering the building through openings in the roof or walls made by direct action of wind or hail.

There is no allegation in the complaint nor in the Carter affidavit that the subject dwelling sustained any actual damage to the roof or walls made by direct action of wind or hail. In fact, the affidavit indicates that the rain leaked through the roof solely because the Carters had removed the protective covering of the shingles. Under the terms of the exclusion unless there was actual prior damage to the roof or walls occasioned by wind or hail no loss to unscheduled personal property caused by rain is covered.

It is axiomatic that parties sui juris are bound by their valid contracts and that where a particular risk is expressly and clearly excepted from the risks assumed by an insurer, the courts are without authority to enforce indemnity for losses resulting from such excepted risks. The exclusionary clause marks the boundary of the coverage of the policy and the courts will not hold the insurer to the coverage of risks which it has expressly excluded. (18 Fla.Jr., Insurance § 409; Travelers’ Ins. Co. v. Peake, 82 Fla. 128, 89 So. 418 (1921)).

The Supreme Court of Mississippi addressed itself to a similar factual situation in Camden Fire Insurance Assoc. v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So.2d 848 (1946). In that case workers were replacing the roof on a hotel and had stripped the shingles from the roof leaving only the exposed wood decking. Approximately one-half of the roof had been covered with tar paper when a rain storm appeared on the horizon. The workmen hurriedly attempted to cover the remainder of the roof but the rain leaked through the tar paper and decking, damaging the hotel. The insurance policy contained a rider covering windstorm damage which stated:

“This company shall not be liable for any loss or damage . . . caused by water or rain, whether driven by wind or not, unless the building insured . shall first sustain an actual damage to the roof or walls by the direct force of the wind, and shall then be liable only for such damage to the interior of the building or the insured property therein, as may be caused by water or rain entering the building through openings in the roof or walls made by the direct action of the wind.”

Under those circumstances the Mississippi court reversed the finding of coverage because, among other reasons, the policy unambiguously stated that the roof must first sustain actual damage by the direct force of wind. That clearly was not the case, as the repairmen, not the windstorm, had opened the hole in the roof. Further, the court questioned whether, under those circumstances, the hotel had a roof at all within the contemplation of the policy because, in order to be a roof, the court observed, its construction must have reached a point where a reasonably prudent householder would consider it adequate against the risks of wind and rain which could be reasonably anticipated. (For a different holding, however, under a similar factual situation, see the Oklahoma case of Homestead Fire Insurance Company v. DeWitt, 206 Okl. 570, 245 P.2d 92 (1952)).

The Carters contend that since the policy allowed them to repair their dwelling it necessarily contemplated the process of repair, including any increased risk attendant upon the dwelling being in a state of repair. However, the fact that a policy contains a clause granting permission to the insured to make repairs does not vitiate the clear and unambiguous terms of the policy. Making repairs is a normal exercise of the ordinary incidence of ownership over insured premises. It is reasonable to presume that the parties contemplated such acts and did not intend the making of repairs to violate the conditions of the policy. It is not reasonable to presume that the parties intended that the coverage provided against loss from certain limited risks would be expanded to provide coverage against any and all risks merely by the act of the insured making repairs.

The subject policy provides coverage for personal property damage caused by windstorm but specifically excludes damage by rain unless the rain enters an opening in the roof created by the wind. To construe the policy as providing coverage only because the insured’s property was damaged and the insured was not negligent would amount to enlarging the coverage of the policy from “named perils” to “all risks”. The clear and unambiguous terms of the policy will not permit such a construction.

In order to avoid the effect of the above quoted portion of the policy the Carters also claimed coverage under the “falling objects provision” of the unscheduled personal property endorsement. They urge that rainfall should be considered as being within the general definition of a falling object and that since there is no specific exclusion under the “falling object provision” then the only requirement that exists to afford coverage is that the falling object first penetrate the roof or walls and then cause damage to the personal property within the dwelling. We have heretofore held that a court will not distort the definitions of words that are utilized in the normal course of the English language in order to impose liability by reason of an insurance contract. Navarra v. Central National Ins. Co. of Omaha, 232 So.2d 28 (Fla.1st DCA 1970) cert. den. 237 So.2d 753 (Fla.1970). It would be absurd indeed for us to hold under the terms of the subject policy, the parties or either of them ever intended that ordinary rain be construed as a “falling object” within the meaning of that term as used in the policy.

The partial summary judgment here appealed is reversed and the case is remanded to the trial court with directions to enter summary judgment in favor of the defendant insurer on the motion filed by it.

It is so ordered.

ERVIN and MILLS, JJ., concur.


author: PER CURIAM.

text:
    Anthony LOVE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-2025, 77-1700.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., James H. Greason, Asst. Atty. Gen., and John Mop-pert, Legal Intern, for appellee.
    Before HAVERFIELD, C. J, and BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Wilkinson v. State, 322 So.2d 620 (Fla. 3d DCA 1975); Monge v. State, 286 So.2d 34 (Fla. 3d DCA 1973); Bocchino v. Wainwright, 231 So.2d 238 (Fla. 3d DCA 1970); Childs v. State, 190 So.2d 605 (Fla. 3d DCA 1966); Gibson v. State, 173 So.2d 766 (Fla. 3d DCA 1965). Douglas v. State, 326 So.2d 33 (Fla. 1st DCA 1976). Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972); Capetta v. Wainwright, 203 So.2d 609 (Fla.1967); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970).


text:
    Lazaro J. DIEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-662.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Defendant, Lazaro Diez, appeals his conviction for burglary of a dwelling and attempted petit larceny (as reduced from grand larceny).

At the conclusion of the trial, the court rendered the following instruction to the jury:

“The defendant, Lazaro Diez, did not take the witness stand and testify. This is a matter of passing interest only since there is no obligation passed upon the defendant to do or say anything. The entire burden is upon the State of Florida to prove the truth of the charge and you are not to draw any inferences from the fact that the defendant did not testify.”

Defendant argues that the instruction constitutes reversible error because it was contradictory and misleading inasmuch as the first portion of the instruction that the defendant’s failure to testify is a matter of passing interest conflicts with the latter portion of the instruction that the defendant’s failure to testify is a matter the jury is not to consider.

A challenged jury instruction or portion of the instruction must be considered with the whole instruction or other instructions bearing on the same subject in determining whether the law was fairly presented or whether the instruction might have misled the jury. Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974).

Looking at the challenged instruction as a whole, we find that it was neither contradictory nor improper. After reading the entire instruction, we cannot agree with the defendant that the first portion thereof using the phrase “of passing interest” indicated to the jury that defendant’s failure to testify was of interest. That interpretation is possible only if this portion is read in isolation. However read i'n context, the instruction is quite consistent and proper.

Affirmed.


text:
    Virginia JONES, as personal representative of the Estate of John Doe Jones, an unnamed baby boy, for the benefit of Virginia Jones, Individually, and the Estate of John Doe Jones, an unnamed baby boy, Appellant, v. NORTH DADE HOSPITAL, INC., a Florida Corporation and Dr. Jack Kamerman, Appellees.
    No. 77-969.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.

      Wolf son, Diamond, Logan & Edge, Miami Beach, for appellant.
    Thornton, Conroy & Herndon by John Edward Herndon, Jr., Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This is an appeal by the plaintiff below in a medical malpractice action, from an order which dismissed her complaint because of failure to file the action within 60 days after the decision of the medical mediation panel, notwithstanding the action was filed within the applicable two-year statute of limitations. We find error and reverse.

The cause of action arose on June 19, 1975. The record does not disclose the date (after June 19, 1975) upon which the plaintiff submitted her claim to the medical mediation panel (as provided for in Section 768.44(1)(a), Florida Statutes (1976 Supp.). The decision of the panel was made on September 18, 1976. The court found the decision was delivered to the parties on that date. The action was filed on December 30, 1976, While that was more than 60 days after the panel decision, it was well within the time allowed by the applicable two-year statute of limitations, which would not have expired until June 18, 1977, even without the benefit of the time it was tolled by the period during which the medical mediation proceeding was pending.

In the medical mediation statute, by subsection 4 of Section 768.44, Florida Statutes (1976 Supp.), it is provided:

“(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.”

The defendant moved to dismiss on the ground or theory that although the action was filed within the applicable two-year statute of limitations the court was without jurisdiction because the action had not been filed within 60 days after the decision of the mediation panel. In espousing that theory, the trial court was in error.

In our opinion it is clear the above-quoted section of the statute was not intended to abrogate the applicable statute of limitations and to substitute for it a limitation period of 60 days from the time of the panel decision or termination of panel jurisdiction. In the above-quoted section of the statute the existence of an applicable statute of limitations was recognized. It provided that the statute of limitations would be tolled by the filing of the claim, and would “remain tolled” until the mediation panel decision or loss of jurisdiction. If, thereafter, the statute of limitations was to have no force or effect, there would have been no reason to provide that it would be tolled by the mediation proceeding.

Since a claim to a medical mediation panel must be filed prior to the expiration of the prescribed statute of limitations, and the latter is tolled for the period of the mediation proceeding, it necessarily follows that after termination of the mediation proceeding a portion of the statutory limitation period will remain, being that portion which thus remained when the claim was filed. If that remaining portion of the statute of limitations is more than 60 days, as it was in this case, action may be filed any time before the statute of limitations expires. If the statutory limitation period remaining after termination of the mediation panel proceeding is less than 60 days, then, as provided for by the mediation statute, the action may be filed in the circuit court any time within said 60-day period. The practical effect of that 60-day provision is not to shorten the statute of limitations but to extend it, where necessary, up to 60 days after termination of the mediation proceeding.

For the reasons stated, the order appealed from is reversed, and the cause is remanded with direction to reinstate the action.


text:
    Lawrence R. DION, Appellant, v. CONSOLIDATED ELECTRIC SUPPLY CO., INC., Appellee.
    No. 77-1222.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Edward B. Johnson, Jr., Key West, for appellant.
    Michael H. Cates, Key West, for appellee.
    Before PEARSON and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Jacksonville Terminal Co. v. Misak, 102 So.2d 295 (Fla.1958).


author: PEARSON, Judge.

text:
    METROPOLITAN DADE COUNTY and Marcos R. Correa, Appellants, v. Vilma ASUSTA, Appellee.
    No. 77-1501.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.

      Stuart Simon, County Atty. and John H. Moynahan, Jr., Asst. County Atty., for appellants.
    Weiner & Rubin, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

The defendants, Metropolitan Dade County and its bus driver, Marcos R. Correa, appeal a final judgment pursuant to a jury verdict, which awarded damages to the plaintiff, Vilma Asusta, who was a bus passenger. The points on appeal urge error concerning (1) the denial of defendants’ motion for a directed verdict, (2) the denial of defendants’ requested instruction that the bus driver had no duty to wait for a passenger to sit down before putting the bus in motion and (3) the failure of the trial judge to apportion the damages in the same amounts as the jury, in a special interrogatory, had apportioned the negligence.

The plaintiff filed suit against the bus driver, Dade County (as the operator of the bus system) and Nelson J. Tejeiro (the driver of an automobile whose negligent actions in driving his car were alleged to have caused a sudden stop by the bus). There was a special form of verdict used by the court, which apportioned percentages of fault among the defendants. The jury found for the plaintiff in the amount of $22,500.00, and allotted 95 percent of the fault on defendant Tejeiro and the remaining 5 percent on Dade County and its driver. The final judgment entered the full amount of the verdict against all defendants. This appeal is by Dade County and its driver.

The appellants’ first point, urging that the trial judge should have granted their motions for directed verdict, does not present error because the transcript of the evidence was not included in the record. Cf. In Re Guardianship of White, 140 So.2d 311 (Fla. 1st DCA 1962).

The second point concerns the refusal of the following instruction requested by the appellants:

“A common carrier in the form of a public bus does not have a duty to wait for a boarding passenger to sit down before that common carrier starts to move the bus, unless the boarding passenger appears to be infirm or in need of assistance or requests help or assistance.”

The appellants rely upon Miami Transit Company v. Ford, 159 So.2d 261 (Fla. 3d DCA 1964), and Nicholson v. City of St. Petersburg, 163 So.2d 775 (Fla. 2d DCA 1964), for reversal. Neither of these cases deals with the denial of an instruction. However, both hold that a sudden stop by the bus, with no other circumstances given, will not make a prima facie case of negligence by the bus driver. The passenger in Miami Transit Company v. Ford was not yet seated. We must agree with the trial judge that the instruction refused was not shown to be a proper statement of the law applicable to this case. Bearing in mind that we do not have the benefit of the trial testimony, it is apparent, nevertheless, that if the bus driver reasonably could have anticipated trouble in traffic which might cause him to make a sudden stop, then the fact that his passenger was not seated is a circumstance that the jury could lawfully take into consideration in determining negligence. Therefore, the refusal of the tendered instruction was not error.

The third and remaining point claims that the 1976 amendment to the Uniform Contribution Among Tortfeasors Act requires each party to pay damages only to the extent that such party caused the damages. No decided case, which directs that judgment be entered in this form, is cited by the appellant. We hold that the statute is what it says it is — an act concerning contribution. As such, the judgment herein against all of the tortfeasors for the amount of the verdict was correct and the subject of contribution, therefore, is properly a separate, post-judgment matter. We think this result follows from the language of the Supreme Court of Florida in Lincenberg v. Issen, 318 So.2d 386, 393-394 (Fla.1975), even though that case was decided prior to the amendment of Section 768.31, Florida Statutes (1977). See Thayer v. State, 335 So.2d 815 (Fla.1976); and In Re Estate of Horner, 188 So.2d 386 (Fla. 3d DCA 1966).

Affirmed.

      . This appeal was filed prior to the effective date of the Florida Rules of Appellate Procedure, as revised, effective March 1, 1978.

      . The relevant subsection of § 768.31, Fla.Stat. (1977), is:
      “(3) Pro rata shares. — In determining the pro rata shares of tortfeasors in the entire liability:
      “(a) Their relative degrees of fault shall be the basis for allocation of liability.
      “(b) If equity requires, the collective liability of some as a group shall constitute a single share.
      “(c) Principles of equity applicable to contributions generally shall apply.”

      . “The plaintiff is entitled to a measurement of his full damages and the liability for these damages should be apportioned in accordance with the percentage of negligence as it relates to the total of all the defendants. The negligence attributed to the defendants will then be apportioned on a pro rata basis without considering relative degrees of fault although the multi-party defendants will remain jointly and severally liable for the entire amount." [emphasis added]


text:
    FIRST CHRISTIAN CHURCH OF CORAL GABLES et al., Appellants, v. J. B. CASH et al., Appellees.
    Nos. 77-1564, 77-1565.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Arthur Lee Willner, Richard M. Gale, Miami, for appellants.

      Sylvester P. Adair, Homestead, Rollins, Peeples & Meadows and Barbara L. Suher, South Miami, for appellees.
    Before BARKDULL and HUBBART, JJ„ and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Spencer v. Young, 63 So.2d 334 (Fla.1953); Harmon v. Harmon, 40 So.2d 209, 212-214 (Fla.1949); Claughton v. Claughton, 347 So.2d 437 (Fla. 3d DCA 1977).


text:
    METROPOLITAN DADE COUNTY, Appellant, v. Walter BRAZIER, Appellee.
    No. 77-1744.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Stuart L. Simon, County Atty., and Jack M. Sobel, Asst. County Atty., for appellant.
    Donald F. Frost, Miami, for appellee.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Padgett v. State, 82 So.2d 372 (Fla.1955); Alessi v. Farkas, 118 So.2d 658 (Fla. 2d DCA 1960); Chrysler Credit Corporation v. Rehurek, 317 So.2d 857 (Fla. 2d DCA 1975).


text:
    Charles SEYMOUR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1418.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Charles Seymour, in pro per.

      Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The appellant pled guilty to manslaughter, was adjudged guilty and sentenced to be imprisoned for a period fifteen years. Thereafter, he filed a petition to vacate sentence in which he alleged that the sentence he received was more severe than that to which he had agreed on entering his plea. The petition was denied, and this appeal followed.

We have examined the record of the proceedings in which defendant entered his guilty plea and find that it was fully explained to him by the court that if the court accepted his guilty plea, the maximum punishment to which he could be subject was fifteen years. The defendant’s response clearly demonstrates his understanding of the circumstances, and we find that the court’s examination of the defendant at the time of receiving the guilty plea was full and complete. Thereupon, the order denying the motion to vacate judgment is affirmed.

Affirmed.


text:
    Anibel K. TYRRELL, Appellant, v. Gordon W. TYRRELL, Appellee.
    No. DD-254.
    District Court of Appeal of Florida, First District.
    June 8, 1978.

      C. Roger Vinson of Beggs & Lane, Pensacola, for appellant.
    David H. Levin, Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Graff, Ma-bie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

This is an appeal from each provision of two post judgment orders entered by the trial court.

By final judgment dated November 15, 1972 the marriage between the parties was dissolved; the wife was awarded custody of the minor children subject to reasonable visitation by their father, jurisdiction having been retained to enter such orders as may be necessary “in the event the parties are unahle to agree upon reasonable visitation”; the husband was required to pay $400.00 per month child support “payable during the dependency and minority of said minor children”; the husband was required to pay rehabilitative alimony for a period of eighteen months “subject to review * * upon a change of circumstances of either party”; disposition was made of various personal properties; the husband was required to pay the wife’s attorney’s fees and costs and to maintain certain then existing life insurance, the wife to be the primary beneficiary “in trust for the use and benefit of the minor children”; and the wife was awarded exclusive use and occupancy of the marital home and the furniture and fixtures located therein. The final judgment contained a provision that “The court will entertain a separate petition for partitioning and distribution of other properties.” Upon appeal of the wife, this court, in a per curiam opinion, affirmed. See Tyrrell v. Tyrrell, 281 So.2d 221 (Fla. 1st DCA 1973).

On November 25, 1974, in response to petitions from each party, the trial judge entered a lengthy order which followed two hearings, in which order the trial judge recited, inter alia:

“Testimony clearly reveals that Petitioner, Gordon W. Tyrrell has, without order of Court, expended almost twice the amount required for the support of his children, upkeep of the home and automobiles; payment of taxes and other miscellaneous expenditures, including but not limited to $110.00 per month for boarding two horses. Testimony further reveals that although Gordon W. Tyrrell has had his two sons with him overnight occasionally, that his visitation with his two daughters has been very limited and that the Petitioner, Anibel K. Tyrrell, has vehemently opposed the daughters visiting with their father because he was a man. It is obvious to the Court that to require the daughters to spend the night with their father would result in continued litigation because it is the Court’s feeling that at the present time they would not exercise visitation overnight even with a Court Order. It is difficult for this Court to understand how the two daughters can accept support from their father over and above that required by the Court and continue to refuse him his parental rights. The Court specifically finds that there has been no material change in circumstances since the entry of the Final Judgment, except that the wife, Anibel K. Tyrrell is now gainfully employed.”

On July 1, 1976 the trial judge entered an order relative to visitation by the children during that summer. That order gives rise to one of the points involved on this appeal. However, the summer of 1976 had long since passed when this case matured and was ready for oral argument. That point is now therefore moot. In any event, however, our examination of the record reveals that the trial judge did not abuse his discretion by the entry of that order.

Another order was entered by the trial judge on August 13, 1976. That order, too, is here appealed. We will refer to the pertinent provisions as we discuss each point raised by appellant.

By her first point, appellant argues that the trial judge erred in terminating child support for the eighteen year old daughter, Jan, citing Finn v. Finn, 312 So.2d 726 (Fla.1975). The record, however, sustains the husband’s reply that the support for the child, Jan, was not terminated because she had attained eighteen years of age, but rather because, in the words of the trial court as found in the order appealed, “it being the Court’s finding that she should not receive support from her father, whom she does not acknowledge nor does she even visit.” In his order the trial judge continues by referring the parties to his prior order of November 25, 1974. We conclude that the learned trial judge did not err as to that point. (See Putnam v. Putnam, 136 Fla. 220, 186 So. 517 (1939); Cortina v. Cortina, 108 So.2d 63 (Fla. 2nd DCA 1958) and Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197).

Appellant next contends that the trial court erred in denying her petition for an increase in child support. The evidence with reference to the financial condition of the parties was in conflict. The trial judge in his order, denying the requested increase, recited as the reason for the denial that the testimony revealed that the husband is on the verge of bankruptcy and that the wife is now employed but was not employed at the time of the dissolution of the marriage. The evidence sustains that finding. We find no abuse of discretion there.

By the third numbered paragraph of the order appealed the trial judge referred to the visitation plan which was meticulously and carefully set out in his November 24, 1974 order, admonished the parties that violation would not be tolerated and then directed the husband to “call the wife twenty-four hours in advance on those occasions when he cannot exercise such visitation.” By her third point the wife appeals that provision urging that the twenty-four hour notice requirement should have been two weeks instead. Finding no abuse of discretion we affirm on that point.

The last provision of the August 13, 1976 order here being appealed provides:

“4. Inasmuch as the Wife has asked for partition of the properties, partition is granted. The Court specifically finds that the Wife has no interest in any of the properties and the business, however, she does have an interest in the marital home, the furniture and fixtures therein and the cemetery lots. The marital property and cemetery lots shall be sold to the highest bidder and the proceeds divided equally, except that the Husband shall be entitled to a special equity in the mortgage note payments which he has made since entry of the final judgment.”

That provision gives rise to the remaining two points urged by appellant on this appeal.

Appellant first contends, regarding that provision, that the trial court erred in finding that she had no interest in any of the marital properties other than the marital home, the furniture and fixtures therein and the cemetery lots. The record reveals that in reality appellant attempted to establish a special equity in the properties (some real and some personal) by virtue of having been “a mother and homemaker” under the doctrine of this court’s opinion in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). Our examination of the record reveals no abuse of discretion. We also affirm on that point.

Appellant words her final point as follows:

“The court erred in ordering that the marital property and cemetery lots are to be sold to the highest bidder and the proceeds divided equally except that the husband is to retain a special equity in the mortgage note payments he had made since entry of the final judgment.”

She presents three separate arguments under that point. First, she argues that the trial judge erred in granting partition. Our examination of the record reveals that she herself filed a post judgment petition entitled “Petition for Partition of Property” in which she requested “a partition of the marital properties, including all those properties, both real and personal, acquired by Gordon W. Tyrrell and Anibel K. Tyrrell, or either of them, during the continuance of their marriage * * * ” The husband, too, filed a petition for partition of the marital home. The trial judge did not err in granting those petitions. A further assault is directed to the proviso: “except that the husband shall be entitled to a special equity in the mortgage note payments which he has made since entry of the final judgment.” We find no error there.

Continuing, as to the last above mentioned point, appellant points out that that provision in the order is deficient under chapter 64 Florida Statutes in that no conditions of the sale are established, no provision is made for advertising, no time table nor date of sale is established, etc. We must agree that the order is deficient in that regard. We, accordingly, construe the order as being interlocutory in nature and granting the petitions for partition. We remand, however, for the entry of an amended order or supplementary order complying with the applicable law relative to partition.

Appellant’s request for attorney’s fees incident to this appeal is denied. Appellee husband has made no such request.

IT IS SO ORDERED.

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


text:
    In re ADOPTION OF Bradley Joel MULLENIX.
    No. FF-321.
    District Court of Appeal of Florida, First District.
    June 8, 1978.

      James R. McAtee, Pensacola, for appellant.
    James M. Weber, of Beggs & Lane, Pensacola, for appellee.
   BOYER, Judge.

Puente, the putative father of a child born in the State of California to an unwed mother, here appeals a final judgment permitting the adoption of that child, over appellant’s objection, by appellees, who were petitioners in the trial court.

The natural mother stated, when she placed the child for adoption, that the factors influencing her decision were: “father unwilling to marry and I have no means to support the baby. I felt adoption would be best for the baby and its future happiness.” Following a favorable study by the Division of Family Services the child was placed in the home of the adoptive parents, who paid all of the medical expenses incident to the birth of the child. They have been married since 1967 and are both employed by the Pensacola Christian College. No question is raised as to their fitness as adoptive parents. Appellant, the putative father, is 22 years of age, single, employed as a welder and resides with his mother and step-father in the State of Texas. Both he and the natural mother are Mexican-Americans of the Catholic faith. He testified that he had known the child’s mother for five years and that they had planned to marry in April of 1975 when she discovered that she was pregnant. They discussed the situation and agreed that they could not go through the ordinary church wedding ceremony. He talked with her by telephone the next day and she expressed a desire to be married that very day. He explained to her that it was not possible in Texas to be married in one day and that in any event he couldn’t get off from work. She became very upset and that was the last time he talked with her. Appellant further testified that he definitely had intended to marry the child’s mother and had started looking for a house but did not talk to his priest until after the baby was born. Two weeks after learning that she was pregnant the mother left Texas without telling the father where she was going. He made no attempt to see her or talk to her during that two week period because, he testified, she was living with her sister and brother-in-law both of whom were antagonistic toward him. Appellant’s mother made an offer to the sister to pay part of the expenses during pregnancy but the sister refused, stating that “they didn’t need any money”. Appellant and his mother made several calls attempting to locate the child’s mother, all of which were fruitless. He first learned of the child’s birth when he received a letter from the attorney for the adoptive parents seeking his consent for the adoption. He testified that on advice of his Texas attorney he did not send any money to the child or the mother after he learned of its birth and whereabouts. He and his mother both testified that if he was given custody of the child his mother would take care of it during the day while he was working and that the child would live with him and the child’s paternal grandparents in a large farm house and would have his own room.

Appellees testified that they loved the child as if it were their own and that they had created a strong family relationship with it. Several other witnesses testified to the good relationship between them and the child.

In the final judgment here appealed the trial judge found: “that petitioner’s have established a family relationship with the minor child sought to be adopted; a family unit exists; petitioners are fit and proper persons to adopt the minor child sought to be adopted; that the best interest and welfare of the child will be promoted by the adoption; that the child is suitable for adoption by petitioners; that damaging effects would be suffered by the minor child if his family relationship were changed; and that the relief requested by respondent should be denied * * *

Appellant, relying on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), contends that the parental rights of an unwed father cannot be terminated without proof of unfitness; that although his procedural due process rights were met by affording him a hearing, he has been denied substantive due process by the termination of his parental rights in the absence of proof of unfitness; that there was no proof nor finding that he was an unfit parent and that therefore failure to obtain his consent for the adoption and failure of proof of unfitness invalidates the final judgment of adoption.

Discussing Stanley v. Illinois, supra, the United States Supreme Court, in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), said:

“In Stanley v. Illinois, [citation omit-ted]this Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized finding that the father was an unfit parent. The Court concluded, on the one hand, that a father’s interest in the ‘companionship, care, custody and management’ of his children is ‘cognizable and substantial,’ [citation omitted] and, on the other hand, that the State’s interest in caring for the children is ‘de minimis’ if the father is in fact a fit parent, [citation omitted]. Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.” (98 S.Ct. at p. 551).

In Quilloin v. Walcott, supra, the husband of the natural mother of the child was permitted to adopt the child although the putative father, who had never been married to the child’s mother, was not found to be an unfit parent. Under the then existing Georgia law a child born in wedlock could not be adopted without the consent of each living parent who had not voluntarily surrendered rights in the child or had been adjudicated an unfit parent. Divorced or separated parents nevertheless were permitted to veto an adoption. In contrast, only the consent of the mother was required for adoption of an illegitimate child. To acquire the same veto authority possessed by other parents, the father of a child born out of wedlock was required to legitimate the child, either by marrying the mother and acknowledging the child as his own, or by obtaining a court order declaring the child legitimate and capable of inheriting from the father. Until the child was legitimated, the mother was the only recognized parent and was given exclusive authority to exercise all parental prerogatives, including the power to veto adoption. The trial court determined that the proposed adoption was in the best interest of the child and that the legitimation or visitation rights requested by the putative father would not be to the child’s best interest. Both were consequently denied. Upon reaching the United States Supreme Court, that Court stated the issue to be:

“Thus, the underlying issue is whether, in the circumstances of this case and in light of the authority granted by Georgia law to married fathers, appellant’s interests were adequately protected by a ‘best interests of the child’ standard. We examine this issue first under the Due Process Clause and then under the Equal Protection Clause.” (98 S.Ct. at page 554).

Holding that the father’s substantive due process rights were not violated by application of the “best interests of the child” standard the court said:

“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected, [citations omitted] ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder’, [citations omitted] And it is now firmly established that ‘freedom of personal choice in matters of * * * family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” [citation omitted]
“We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ [citations omitted] But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, was in the ‘best interests of the child.’ ” (98 S.Ct. at pages 554 and 555).

Addressing the equal protection issue the court said:

“Appellant contends that even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted im-permissibly in treating his case differently. We think appellant’s interests are readily distinguishable from those of a divorced father, and accordingly believe that the State could permissively give appellant less veto authority than it provides to a married father.” (98 S.Ct. at page 555).

We conclude, therefore, that appellant’s reliance on Stanley v. Illinois, supra, as expanded by Quilloin v. Walcott, supra, is misplaced and that his constitutional attack is without merit.

We turn now to the statutory law of Florida to determine whether, under that law as it now exists, an adoption of an illegitimate minor child may be granted over the objection of a nonconsenting father who is not married to the mother of the child and who has not been found to have abandoned the child nor to be an unfit parent. (See Turner v. Adoption of Turner, 352 So.2d 957 (Fla.1st DCA 1977))

F.S. 63.062, Florida Statutes 1975, requires as a condition precedent to adoption, the consent of the father of a minor child if:

“1. the minor was conceived or born while the father was married to the mother.
2. the minor is his child by adoption.
3. the minor has been established by court proceeding[s] to be his child.
4. he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor and has filed such acknowledgment with the Bureau of Vital Statistics.
5. he has provided the child with support in a repetitive, customary manner.”

The record does not reveal appellant to be within either of those five categories. Accordingly, his consent was not required.

It is clear that appellant was given notice of the adoption proceedings, was afforded an opportunity to be heard and, indeed, was heard. His procedural due process rights were not therefore violated. Neither was he deprived of substantive due process nor equal protection. (Quilloin v. Walcott, supra) The statute (F.S. 63.062, Florida Statutes 1975) does not require appellant’s consent on the state of the record in this case. We are not, therefore, concerned with waiver of consent, viz: F.S. 63.072, Florida Statutes 1975. (See Turner v. Adoption of Turner, supra) We conclude, therefore, that the learned trial judge did not err in applying the “best interests of the child” standard.

AFFIRMED.

MILLS and ERVIN, JJ., concur.


author: SANDERS, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Emmett E. BATSON.
    No. 58725.
    Supreme Court of Louisiana.
    May 22, 1978.
    Alex W. Wall, Trial Counsel, Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for defendant-respondent.
    John B. Scofield, Chairman, Lake Charles, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, Thomas 0. Collins, Jr., Louisiana State Bar Ass’n, New Orleans, for plaintiff-petitioner.
   DISBARMENT PROCEEDINGS

SANDERS, Chief Justice.

On October 8, 1976, the Louisiana State Bar Association, appearing through the Committee on Professional Responsibility, brought this proceeding against Emmett E. Batson, a practicing attorney, seeking his disbarment for professional misconduct.

A hearing was conducted by the Committee. Mr. Batson appeared before the Committee, represented by counsel of his choice. Based upon its investigation and the evidence at the hearing, the Committee concluded “that the Respondent had been guilty of a violation of the laws of this State relating to the professional conduct of lawyers and to the practice of law of sufficient gravity as to evidence a lack of fitness for the practice of law. . . . ”

On October 29, 1976, we appointed a Commissioner to report his findings of fact and' conclusions of law. The Commissioner’s hearing was conducted on January 25, 1977 and March 11, 1977. Respondent was present for the hearing, represented by counsel. The Commissioner found that respondent had been guilty of violating Disciplinary Rule 9-102 of the Code of Professional Responsibility (LSA-R.S. 37, Ch. 4-App., Art. 16, Canon 9, DR 9-102) and Disciplinary Rule 1-102 of the Code of Professional Responsibility (LSA-R.S. 37: Ch. 4-App., Art. 16, Canon 1, DR 1-102), which respectively provide:

“(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
“(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4)Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
“(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

The basic facts, upon which the Bar Association’s complaints are based, are not in dispute: On and prior to September 19, 1968, respondent was an attorney retained by the Louisiana Department of Revenue concerning a delinquent tax liability of one Ben Beckham, Jr. The claim against Beck-ham was one of long-standing — arising as early as the 1940’s. By September 19,1968, a portion of the money had been seized and was in the registry of the First Judicial District Court, Parish of Caddo, and, on this date, a check in the amount of $11,834.72 was issued by the Clerk of that court to respondent’s order as attorney for the Department of Revenue.

Of the $11,834.72, $1,075.88 was due respondent for attorney’s fees; the remainder belonged to the Department of Revenue. Respondent deposited the entire sum in his personal account the day following the issuance of the check.

The record reflects that the State Collector of Revenue authorized respondent to retain these funds pending disposition of other matters regarding the Beckham account. There was no express authorization for the funds to be placed in a personal account, although respondent interpreted his authority in this manner. It is clear, however, that respondent' was given no permission to use the funds for his own purposes. The Commissioner so found, and his finding is adequately supported.

Between September, 1968 and October, 1971, respondent left the employ of the Department of Revenue. In October of 1971, an investigation began in the Department concerning the whereabouts of the funds realized in the Beckham collection. Thereafter, through the intercession of others, respondent obtained the issuance of an undated bank money order from the Citizen’s National Bank of Hammond in the amount due the Department, $10,758.84.

Respondent caused the date of September 27, 1968, to be placed on the money order and caused it to be placed in the appropriate file in the Department where it would be “found.” It was subsequently “found.” These are findings by the Commissioner, which are not traversed by the respondent.

Respondent had possession of the funds from September, 1968 through November 9, 1971. Respondent does not contest this fact; however, he denies that they were converted to his own use.

This same matter was also the subject of a criminal prosecution against this respondent for the misappropriation of funds. The State’s criminal prosecution was dismissed after the close of the State’s case by a directed verdict of acquittal. Respondent did not testify in the criminal proceeding and declined to testify in the hearing before the Commissioner.

Two issues are raised for our consideration: (1) the effect of the acquittal of the criminal charges based upon the same transaction; and (2) the disciplinary action, if any, to be taken against respondent.

Defendant argues that, because the Louisiana State Bar Association Articles of Incorporation Article XV § 8 makes criminal conviction conclusive proof of misconduct, an acquittal must constitute conclusive proof that there has been no misconduct. Defendant argues that to hold otherwise — i. e., that an acquittal does not bar subsequent disciplinary proceedings — would constitute a denial of due process and equal protection of the law. U. S. Const. Amend. 14, § 1. This argument is without merit.

Louisiana State Bar Association Articles of Incorporation Article XV § 8(7) provides:

“(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
(a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
(b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.” [Emphasis added.]

Making “the certificate of the conviction . conclusive evidence of his guilt of the crime” does not violate due process and equal protection by giving greater weight to a conviction than to an acquittal. Under Article XV § 8, an acquittal is given equal weight regarding innocence of the crime for which respondent has been acquitted. Under § 8(7)(c)(d), the conviction or acquittal is conclusive evidence of guilt or innocence of the crime rather than conclusive evidence of guilt or innocence of unethical conduct on respondent’s part. The acquittal does not preclude disciplinary action for professional misconduct.

In the absence of a conviction—either due to an acquittal or a lack of criminal prosecution—the Committee must determine whether or not the respondent has violated “any rule of the Code of Professional Responsibility of sufficient gravity as to evidence a lack of moral fitness for the practice of law . . ..” Louisiana State Bar Association Articles of Incorporation Article XV § 6. The standard for determining respondent’s moral fitness to practice law is the same whether or not he has been convicted or acquitted of a criminal charge.

Louisiana State Bar Association Articles of Incorporation Article XVI EC 9-6 provides:

“Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service;' to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.”

Attorneys in this State are held to a very high standard of conduct. An attorney must avoid the appearance of impropriety as well as impropriety itself. Louisiana State Bar Association v. Weysham, La., 307 So.2d 336 (1975); Louisiana State Bar Association v. Blum, 256 La. 530, 237 So.2d 366 (1970); In re Novo, 200 La. 833, 9 So.2d 201 (1942). See also: Louisiana State Bar Association v. Cox, 252 La. 978, 215 So.2d 513 (1968); Louisiana State Bar Association v. Powell, 248 La. 237, 178 So.2d 235 (1965); Louisiana State Bar Association v. Wheeler, 243 La. 618, 145 So.2d 774 (1962).

In the case before us, the record establishes by clear and convincing evidence that the attorney committed professional improprieties in the following respects: (1) to retention of the funds after the termination of his employment; (2) failing to return th" funds until an investigation was launched to determine their whereabouts; and (3) returning the funds in a surreptitious manner. This conduct is sufficient to warrant disciplinary action. There are mitigating circumstances: (1) there was a legitimate question about the handling of the funds collected; (2) respondent retained the funds with the approval of his employer; (3) he did make the funds available when an inquiry was made, although in an irregular manner; and (4) in his almost twenty years of practice, this is the only complaint ever made against respondent. In light of these mitigating circumstances, we conclude that a six month suspension from the practice of law is an adequate disciplinary action.

For the reasons assigned, it is ordered, adjudged and decreed that Emmett E. Bat-son, respondent herein, be suspended from the practice of law and his license to practice law be revoked for a period of six months and that he pay all costs herein.


text:
    STATE of Louisiana v. Larry J. WINFREY.
    No. 59512.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, Larry J. Winfrey, for possession of heroin with the intent to distribute, a violation of LSA-R.S. 40:966. A unanimous jury returned a guilty verdict. The court imposed a sentence of life imprisonment.

The defendant perfected an appeal in this Court. However, we granted his motion to remand for a hearing on a motion for a new trial. The district judge denied the motion. He now proceeds with his appeal, relying on three assignments of error for reversal of his conviction and sentence.

We adduce the following context facts:

As Officers Bourg and Welsh patrolled Claiborne Avenue in New Orleans one night, they observed an automobile traveling without its lights on. The defendant drove that automobile and his co-defendant at trial was the passenger. With the intention of giving him a warning, the officers pulled the defendant over.

Upon stopping, the officers shined a spot light into the defendant’s rear-view mirror, and approached the car with flashlights. They saw the defendant and the passenger lean toward the middle of the seat, pick up some objects, and place them in their mouths. When Officer Bourg arrived at the driver’s window, he saw the defendant crumble small pieces of foil and put them into his mouth. Officer Welsh observed the passenger swallow the objects he had placed in his mouth. A roll of tin foil lay on the front seat.

Officer Bourg immediately informed the defendant that he was under arrest. When he opened the door, the defendant slammed it shut. He then began to struggle as Officer Bourg attempted to remove him from the car. During this time, the defendant threw a bundle of money to the rear of the car. To retrieve the objects from his mouth, the officer placed one hand by his mouth to get his fingers into it and the other hand on his throat to prevent him from swallowing. Officer Bourg succeeded in removing twenty-two packets of heroin. The struggle lasted approximately one to two minutes.

ASSIGNMENT OF ERROR NO. 1

The defendant complains of the denial of his motion for a new trial grounded upon the alleged ineffective assistance of counsel.

Louisiana Code of Criminal Procedure Article 853 mandates that this motion for a new trial “be filed and disposed of before sentence.” Defense counsel filed the motion more than ten months after imposition of sentence. As the motion was untimely, the law precludes the trial judge from considering it. State v. Jones, La., 345 So.2d 1157 (1977); State v. Navarre, La., 289 So.2d 101 (1974); State v. Smith, 231 La. 649, 92 So.2d 569 (1957).

The proper procedural vehicle for an allegation of ineffective assistance of counsel is by a writ of habeas corpus in the district court. The trial judge can then order a full evidentiary hearing, if required. State v. Collins, La., 350 So.2d 590 (1977); State v. Ross, La., 343 So.2d 722 (1977); State v. Mouton, La., 327 So.2d 413 (1976).

Treating his motion for a new trial based on ineffective assistance of counsel as an application for post-conviction relief, we find no merit in his allegations. At the hearing, defense counsel argued his motion, relying on his memorandum. The court stated that his memorandum is not evidence and asked him if he had “anything further.” [Tr., Motion for New Trial, p. 4.] Counsel indicated that he did not. Thus, the defendant failed to offer any evidence to prove his allegations of ineffective assistance of counsel.

We conclude that the court properly denied the motion for a new trial.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In a pro se brief, the defendant alleges that the trial court erroneously denied his motion to suppress. He advances two grounds to support his argument: that there was no probable cause to arrest him, and that the heroin was seized in violation of his Fourth Amendment rights.

An officer may effectuate a war-rantless arrest when he has reasonable cause to believe that the person to be arrested has committed an offense, although not in his presence. LSA-C.Cr.P. Art. 213(3). “Reasonable cause to believe” is a lesser degree of proof than that needed for conviction. This standard is determined by the setting in which the arrest occurred, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. State v. Boyd, La., 349 So.2d 1256 (1977). While the officer need not negate all possible lawful explanation of a situation before making an arrest, he must have within his knowledge information upon which a prudent man would believe that the person to be arrested is criminally connected with the circumstances. State v. Phillips, La., 347 So.2d 206 (1977).

When the officers saw the defendant driving an automobile without its lights at night, they were justified in stopping him because both state and municipal laws require every vehicle driven after sunset and before sunrise to have its lights on. LSA-R.S. 32:301; 828 M.C.S. 38-165, 1972. See State v. Braud, La., 357 So.2d 545 (1978).

The officers noticed the defendant and the passenger lean over to the middle of the front seat, pick up objects, put them into their mouths, and attempt to swallow them. When Officer Bourg arrived at the driver’s window, he saw the defendant crumble several pieces of foil and again put them into his mouth. They also discovered a roll of tin foil on the front seat.

As a State expert in heroin testified, heroin is often packaged in tin foil, and narcotics possessors, when apprehended, attempt to destroy the evidence by swallowing it. The defendant’s and his passenger’s leaning over to the front seat as the officers approached, could reasonably indicate that they were attempting to conceal something. These factors convince us that the officers had a reasonable belief that the defendant had committed or was committing an offense. State v. Brown, La., 341 So.2d 2 (1976); State v. Johnson, 250 La. 85, 193 So.2d 794 (1967). Therefore, under Louisiana Code of Criminal Procedure Article 213(3), they effectuated a valid warrantless arrest.

Secondly, the defendant avers that Officer Bourg unreasonably seized the heroin from his mouth in violation of the Fourth Amendment.

Whether police action in extracting contraband from the defendant’s person is unreasonable depends upon the totality of the circumstances. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Law enforcement officials may adopt reasonable measures to retrieve contraband and prevent its destruction. State v. Wood, 262 La. 259, 263 So.2d 28 (1972).

To recover the contraband, Officer Bourg held the defendant with one hand so that he might put his fingers in his mouth and with the.other hand to prevent him from swallowing. This occurred during a one to two minute struggle which the defendant initiated. There were no injuries.

We conclude that Officer Bourg used reasonable measures in procuring the heroin. His actions do not shock the conscience or “offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. . ." Rochin v. California, supra.

Several courts in other jurisdictions have upheld similar seizures. State v. Young, 15 Wash.App. 581, 550 P.2d 689 (1976) (the officer “placed his hands on his throat, constricting his ability to swallow” and another officer pinched his nose to make the defendant breathe through his mouth and spit out the evidence); United States v. Harrison, 139 U.S.App.D.C. 266, 432 F.2d 1328 (1970) (the officer grabbed the defendant by the throat and made him expel the evidence); State v. Santos, 101 N.J.Super. 98, 243 A.2d 274 (1968) (the officers grabbed the defendant by the throat and tried to pry his mouth open); Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960) (the officers choked the defendant and attempted “to pry open his mouth by placing pressure against his jaw and nose”); State v. O’Shea, 16 N.J. 1, 105 A.2d 833 (1954) (the officers struggled with the defendant and “forced him to disgorge the papers he was attempting to swallow”).

The defendant’s reliance on State v. Tapp, La., 353 So.2d 265 (1977) is misplaced because it is factually distinguishable. In an effort to arrest and retrieve contraband from the defendant Tapp’s mouth, five officers fought with him for fifteen to twenty minutes. One officer choked him while others pummelled his face and head with their fists. According to the defendant, another officer held his nose to cut off his breathing. Eventually they caused him to spit up the packet of contraband which was lodged near his esophagus. This altercation required the defendant and two officers to seek hospital treatment for their injuries.

In conclusion, we hold that the trial court properly denied the defendant’s motion to suppress.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that the court erred in allowing the State’s challenge for cause of a prospective juror. Basically, he alleges that her responses failed to indicate her inability to serve.

The State or the defendant may challenge a juror for cause if the juror refuses to accept the law as given by the court. LSA-C.Cr.P. Art. 797(4). The trial judge is vested with wide discretion in determining the qualification of jurors to serve at trial. Absent a clear showing of abuse of discretion, we refuse to disturb his ruling. State v. George, La., 346 So.2d 694 (1977); State v. Passman, La., 345 So.2d 874 (1977); State v. Weathers, La., 320 So.2d 895 (1975).

When questioned if she could convict when the State proved the defendant was guilty beyond a reasonable doubt, she consistently stated that she would require the State to prove his guilt beyond any doubt. In an effort to rehabilitate her, the defense counsel, prosecutor, and the judge asked her if she could follow the law. She responded, “p]t’s a possibility.” [Tr. p. 8.]

From her answers, it is clear that the prospective juror was unqualified to serve because she would not accept the law as given by the court. See State v. Nolan, La., 341 So.2d 885 (1977). Thus,the court properly allowed the State’s challenge for cause.

This assignment of error is without merit.

For the reasons assigned, the conviction and sentence are affirmed.