author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Michael Paul BERRY v. STATE.
    8 Div. 39.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    James D. Walker, Albertville, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant-defendant was convicted of burglary in the second degree and sentenced to imprisonment for a term of five years.

The dwelling house alleged to have been burglarized was that of Charles M. Beck at 208 Woodall Street, Albertville. Mr. Beck testified that he and his family went on a vacation commencing about May 20, 1976, and continuing for about ten days. No one was left at the house except Mr. Beck’s father, who had a room of his own at the house and lived there. Upon the return of Mr. Charles Beck from the vacation, he learned that three hand guns were missing, described by him as a “357 Magnum,” a “9 mni. Smith & Wesson automatic,” and a “32 Smith & Wesson” revolver. The 32 revolver was usually kept by Mr. Beck’s father in the room occupied by him. The 357 Magnum and 9 mm. Smith were usually stored in the bottom compartment of Mr. Beck’s gun cabinet. Upon his return from the vacation, his father let him know that the 32 revolver was missing. They made a search for it and during such search, Mr. Beck found that the other two guns had disappeared from the gun cabinet. He said:

“The bottom two doors had been pried open with something. The lock had just been bent over. The door was still shut, but when we started to go to get a gun out of it I noticed that the door had been pried open. Some flat instrument had been used to pry it open.”

He noted that three boxes of ammunition, one of 9 mm. and two of the 357, were missing from the gun cabinet in addition to the pistols.

Mr. Charles Beck further testified that defendant had been in his home on occasions when Mr. Beck was cleaning his guns and he would show the guns to defendant, and they would discuss them. He said his father had a key to the house. His father worked and would usually leave the house at approximately 6:30 in the morning, each day except Saturday and Sunday, and remain away until approximately 3:45 in the afternoon. Mr. Charles Beck promptly reported the disappearance of the pistols to the police and gave the police the serial numbers of the guns.

Mr. Maymon Beck, the father of Charles M. Beck, testified that the last time he saw the 32 revolver was on the first Monday after the Friday on which his son and family commenced their vacation. He said he noticed it after he returned from work Monday afternoon, that he worked five days a week commencing on a Monday. He said that during the immediately preceding weekend, his other son, Fred, and family had visited him. On Wednesday evening, after discovering that the 32 was missing, he called Fred in Georgia and told him the gun was gone. The witness further testified that on leaving the house for work he locked all the doors and saw that the windows were closed and that upon returning to the house there was no signs of physical entry into the house by way of the doors or windows. He had a key to the house and understood that it was the only key to the house.

Mrs. Charles M. Beck testified that before the family left on their vacation, she left a key to the house with Mrs. Berry, the mother of defendant, with instructions that she let the dog out. She also left with Mrs. Berry her “old money, coin collection,” which she took to Mrs. Berry’s house as she left and received it from her upon her return from the vacation.

All of the three missing guns were recovered, were definitely identified and admitted in evidence.

Reggie Lambert testified that he worked with defendant and in October 1976 they discussed guns. During the conversation, Lambert let it be known that he wanted to buy a gun. He bought the 357 Magnum from defendant on October 29, 1976, paying him fifty dollars in cash and giving him a check for fifty dollars. The particular gun was recovered from the witness by Detective Cole of the Albertville Police Department, after Lambert had called the Sheriff’s Department and had it run a check on the gun.

Jim Lessley, Jr., testified that during the summer of 1976, defendant mentioned to him that he had a 9 mm. automatic “that he had acquired in Michigan and he was wanting to sell it.” They went to defendant’s home to get the gun. They went to the bank and the witness made a withdrawal of eighty-five dollars and paid defendant that amount for the 9 mm. gun that the evidence shows was missing from Mr. Beck’s gun cabinet. This was on July 12 or 13. Upon learning of defendant’s arrest, Less-ley turned the gun over to the Albertville Police Department. The witness had made several checks to attempt to determine whether the gun was a stolen one and had been unsuccessful. He learned that the gun had been stolen about the time that he learned of defendant’s arrest.

Chief of Police Bearden, of Geraldine, Alabama, testified that on November 2,. 1976, he saw defendant in Geraldine driving a black-over-yellow Plymouth. There were two others in the car with defendant. After the car stopped, he approached the automobile and arrested one of the individuals, Gary Wayne White, for possession of a pistol, which was “stuck down in his britches.” At the time, defendant said that the automobile belonged to him. The pistol was identified as the 32 revolver that was missing from Mr. Beck’s house or from the room occupied by Mr. Maymon Beck.

Mr. John William Berry, the father of defendant, who lived at 1010 Woodall Street, Albertville, across the street from Mr. Charles M. Beck, testified as to the cordial relations between the members of his family and the Becks. He said he recalled the occasion of the vacation by Mr. Charles Beck and his family in May 1976, and that Mrs. Beck and one of the sons brought over a box which was supposed to contain coins and left it at the Berry house, and that they left a key to the Beck house. He said he did not use the key, that he never saw Michael, who is twenty-eight years old, ever go into the Beck house while they were on their vacation. He saw his wife go in the house once. He said that he did not see Mr. Maymon Beck go in the house during the vacation period, that Mr. Maymon Beck’s room was a room they had made for him in the garage. He saw Mr. Maymon Beck around the place while Mr. Charles Beck was on vacation, and he talked with him. He also saw Fred Beck and his family in or around the Beck home. They came on the Friday that Mr. Beck left and they left on Sunday about 3:00. On the day of Michael’s arrest, Mr. Berry had a conversation with Mr. Charles M. Beck about a man who was the third person in the automobile when the 32 revolver was found on the person of Gary White at Geraldine. He revealed to Mr. Beck that Michael had said that he obtained the gun from such third person, and said Mr. Beck said that he knew the man well and “he’d steal anything.” He said that he had not seen Michael in possession of any pistols. Michael was living with his parents at the time.

Mrs. Ruby Berry, the mother of Michael, testified that the Becks brought a large box containing coins to her to keep while they were on their vacation, and further asked if they could leave some guns at her house, but that they did not leave the guns, that Mr. Beck said they would be all right just where they were. Mrs. Beck left a key to their house with her and asked her “to take their mail in and leave it in the living room, and let the dog out, if she would come out with me.” She went to the house every day the postman ran. She attempted to let the dog out, but it growled so that she “left her alone after that one try.” She never saw Michael go into or about the Beck home, nor did she ever see her husband go into or about the Beck home. She saw Fred Beck and family when they visited Mr. Maymon Beck, saw them going in and out of the house. They stayed there no more than two days. From the time that the Becks went on their vacation she had not seen Michael in possession of any pistol. She kept the key to the Beck home on the “keyboard in my kitchen, on the wall.” She never at any time while the Becks were on vacation noticed that the key was missing from the key ring. No one ever asked to borrow the key and she never gave anyone the key. She was not at home all the time while the Becks were on their vacation. She would leave the house at times to go shopping. She relocked the door of the Beck home every time she entered it.

Appellant urges that if the indictment had charged grand larceny instead of burglary the evidence of defendant’s possession of the recently stolen property “might have warranted a conviction,” but that the evidence is not sufficient to warrant a conviction of burglary in the second degree. We held in Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130, 132, cert. denied 291 Ala. 774, 285 So .2d 134 (1973):

“The position has been repeatedly taken by this Court and by other courts that upon proof that a burglary has been committed, the possession soon thereafter of goods stolen in the burglary affords a logical inference, in the absence of a satisfactory explanation of the possession, that the possessor was the burglar. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396; Miller v. State, 43 Ala.App. 287, 189 So.2d 576; Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210, cert. denied 288 Ala. 750, 264 So.2d 214. The rule applies alike to burglary and larceny, and it seems clear that the kind of possession required to form a basis for an inference of guilt is generally the same as to the two crimes. . . . ”

Appellant also contends that to support a conviction of burglary it is necessary to show a “breaking” and entering. We agree. Appellant asserts that there was no evidence of a breaking. We disagree.

A breaking into a residence by unlocking a door is a sufficient breaking to constitute that element of the crime. Creel v. State, 23 Ala.App. 241, 124 So. 507, cert, denied, 220 Ala. 220, 124 So. 510 (1929); Norman v. State, 13 Ala.App. 337, 69 So. 362 (1915).

In Norman, we find many circumstances paralleling the facts in this case. In some respects the evidence was stronger against the defendant in Norman than it was against the defendant in instant case, but in other respects it was weaker.

In Norman, the conviction of defendant of burglary of an office at the State Capitol was upheld. It was charged that he had broken and entered into the office' with the intent to steal. The office was that of the State Health Officer, where “answers” had been left in connection with an “examination” then in the process of being conducted of applicants for admission to the practice of medicine. The defendant was a physician who had been admitted to the practice. The evidence was to the effect that for a stipulated sum defendant agreed to tell the applicant how to answer the questions, supervise his answering them and then would substitute such answers for the answers that the applicant had given and left at the office of the State Health Officer a few hours before, at about the closing time of the office on a Thursday afternoon. Before the following night the second set of answers of the applicant arrived in the office of the State Health Officer, and that night defendant delivered to the applicant his original answers. The court said:

“How did the defendant come into the possession of these originals? Being, as they were shown by the evidence for the state to be, stolen property, the mere fact of defendant’s possession of them, aside from the other mentioned incriminating evidence against him, was sufficient, in the absence, as here, of any explanation on his part as to how he came by that possession, to afford a reasonable inference that he had stolen them from the office of Dr. Sanders [the State Health Officer] (Hicks v. State, 99 Ala. 169, 13 So. 375; Fuller v. State, 48 Ala. 273; 1 Mayf.Dig. 138, § 16); but whether by breaking into and entering said office, which is the sole charge here (burglary), a belief of which breaking and entering was essential to defendant’s conviction, or whether by entering said office without a breaking, which would make defendant guilty of only petit larceny, is the serious question in the case, though we are of opinion that the evidence was sufficient in its inferences to require a submission of the question of the breaking to the jury, and to forbid the giving of the affirmative charge for defendant.
“It is true that there is no evidence whatever of an actual or violent breaking, and consequently true that, if there was a breaking, it was a breaking by unlocking, rather than by battering open, the door to the office; yet such a breaking is entirely sufficient to constitute a ‘breaking’ within the contemplation of the law in defining burglary. 6 Cyc. 178 et seq.; 1 Mayf.Dig. 134, § 12.
“It is further true that certain phases of the evidence afford such latitude,as to the time of the taking as not to more definitely fix such time than that inferentially it must have occurred some time between Thursday night, when defendant agreed with Avery to get said papers, and Friday night following, when defendant delivered said papers to Avery, thereby, without more, leaving perhaps as strong room for an inference that defendant stealthily took said papers from the office of Dr. Sanders during the day of Friday at a time when such office was open and without breaking therein, as for an inference that he took them on the Thursday night before, and after said office had been closed, and by breaking into it by unlocking it with a key; yet the further fact, which also appears in evidence, that at all times when said office was open there was always some one of those who had charge of it in there, is a strong circumstance tending to rebut, in connection with other circumstances, the idea that the papers were taken from that office during the time that it was open, and tending to show that they were taken by breaking into said office when it was closed, and was sufficient, therefore, with such other circumstances, to authorize the court to submit to the jury the question as to whether or not defendant broke into and entered said office. Pantaze v. West, 7 Ala.App. 599, 61 So. 42.”

We find the contention of appellant in Norman to be significantly similar to that of appellant in instant case. It-is possible that defendant, or someone other than defendant, obtained the pistols without having used the key left with the mother of defendant, but it seems unlikely. Certainly the testimony of the mother is to the effect that each time she opened the door nothing like that occurred. It is also possible that someone went through an open door after it had been opened by Mr. May-mon Beck upon his return from work, but any likelihood thereof dims in the light of the greater likelihood that, if Mr. Beck had been home, he would have heard the forced entry into the gun cabinet. It is hardly likely that someone would have entered the house with the intent to steal at a time when Mr. Maymon Beck was there instead of at a time when he was absent. The doors were locked and the windows closed while Mr. Beck was away, but the key was readily available to defendant, in whose possession the stolen property was found.

There were only two keys to the house in the neighborhood, one in the possession of Mr. Maymon Beck and the other left at the home of defendant and his mother. As we see it, there is a logical inference, a strong one, that the pistols in the gun cabinet were taken at a time when someone, other than Mr. Maymon Beck or Mrs. Berry, unlocked the door and entered the house, and that the key left at the Berrys’ was the key by which the door was unlocked. As no one else had express authority, and there is no evidence of the exercise by anyone else of any implied authority, to unlock the door, it appears that such an unlocking and entry was for the purpose of stealing, when considered with the fact that two of the pistols were stolen from the gun cabinet, after the bottom compartment thereof had been prized open.

We conclude that the circumstances warrant a finding that there was a breaking by unlocking the door, and that defendant’s possession of two of the pistols soon after their being taken from the premises, in the absence of any explanation by him of the occasion for his possession of the guns, constitutes substantial, if not conclusive, evidence of defendant’s guilt of burglary in the second degree.

The court reasoned in Norman that if there had been any evidence tending to connect someone else, a person who might have had a right to have been in the office, with obtaining the examination papers and turning them over to defendant, defendant would not have been guilty of burglary, although he would have been guilty of larceny, or the like. The court, however, went on to state at 69 So. 365:

“. . . Here, however, there is no evidence whatever that defendant had such an accomplice; and certainly we are not required to presume, in the absence of such evidence, that defendant did have such an accomplice, in order to permit defendant to escape the incriminating features of the evidence as to the breaking, for such a presumption would amount to presuming another person’s guilt, of which there is no evidence, for the purpose of explaining away the incul-patory evidence against defendant of the burglary.”

In Norman, there was no evidence that defendant had access to a key to the office, but the evidence was “that the lock to the office was a cheap one and easy to fit with a key.”

Defendant’s motion to exclude the evidence was properly overruled, and there was no error in the overruling of defendant’s motion for a new trial.

We find no error in the record, and the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article, (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . The evidence is not as clear as it should be as to the location of the room of Mr. Maymon Beck. The evidence was that he lived in the whole house and had a room of his own, but there is also evidence to the effect that the room was not in the house itself, but was out next to the garage.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby STANLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-500.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied May 19, 1978.

      Galbut, Galbut & Menin, Miami Beach and Mike Salomon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger and Ira N. Loewy, Asst. Attys. Gen., for appellee.
    .Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Bobby Stanley and Roderick Johnson were indicted for first degree murder, robbery, kidnapping and unlawful possession of a firearm while engaged in a criminal offense. They were tried together by a jury which found them both guilty on all counts. The trial judge convicted and sentenced each defendant to three consecutive terms of life imprisonment in the state penitentiary for murder, robbery and kidnapping, and suspended sentence on the possession of firearm count. Defendant Johnson took an appeal from his judgment of conviction and sentence, which was recently affirmed by this court in Johnson v. State, 355 So.2d 143 (Fla. 3d DCA 1978), opinion filed February 7, 1978. The case now before us is an appeal by defendant Bobby Stanley from his judgment of conviction and sentence.

Of the seven points raised by Stanley on this appeal, the only one which merits full discussion is that the court erred in instructing the jury by reading Florida Criminal Standard Jury Instruction 2.12(d), after the co-defendant (Johnson) had testified on his own behalf and on behalf of defendant-appellant Stanley. The record reflects that the following instruction was given:

“When two or more persons take part in the commission of a crime each is an accomplice of all the others.
The testimony of an accomplice must be received with great caution and carefully and closely examined by you before a conviction is based upon it. This is particularly true when there is neither direct testimony nor circumstances tending to corroborate the testimony of the accomplice. However, the testimony of an accomplice, even though uncorroborated, is sufficient upon which to base a conviction if you are convinced by it of the defendant’s guilt beyond a reasonable doubt.” (Emphasis added).

According to Stanley, the charge concerning the weight to be accorded the testimony of an accomplice, under these circumstances where both defendants testified in their own behalf and not on behalf of the state, had the effect of instructing the jury to only accept Johnson’s testimony exculpating Stanley, after examining it with great caution ; thereby shifting an improper burden on the defense, allowing the jury to convict despite its failure to find guilt beyond a reasonable doubt. As authority, Stanley cites Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972).

Stanley further contends that the state had no tangible evidence of the guilt of either defendant, except their confessions. Thus, with the only defense asserted by Stanley and Johnson being alibi, and each defendant exculpating the other by his alibi testimony, the state’s case rested solely on the fact that a crime had been committed, and that there were confessions. Therefore, he reasons, since the state’s case depended upon the jury either believing or disbelieving the testimony of co-defendant Johnson, the instruction to receive Johnson’s testimony with great caution and care improperly east doubt and suspicion on that testimony, was highly prejudicial and made the state’s burden of proof easier. In support of this, Stanley cites Wheelis v. State, 340 So.2d 950 (Fla. 1st DCA 1976).

We find the foregoing arguments and authorities to be persuasive but not controlling. The record reflects, and appellant concedes, that defense counsel raised no trial objection to the giving of the instruction, in spite of the fact that there was also an opportunity to do so at the charge conference. For this reason, we agree with the state’s position that defendant has no standing to raise this on appeal. See Blatch v. State, 216 So.2d 261 (Fla. 3d DCA 1968); Williams v. State, 285 So.2d 13 (Fla.1973); Williams v. State, 346 So.2d 554, 558 (Fla. 3d DCA 1977); Florida Rule of Criminal Procedure 3.390(d); Florida Appellate Rule 6.7(g). In response to the state’s position, Stanley would have us declare the giving of the instruction to be fundamental error.

Fundamental error which can be considered on appeal without objection in the trial court, is defined as “error which goes to the foundation of the case or goes to the merits of the cause of action;” and the appellate court should exercise its discretion under the doctrine of fundamental error very guardedly. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976). See also dissent by Judge Hubbart in Porter v. State, 356 So.2d 1268 (Fla. 3d DCA 1978), opinion filed March 7, 1978. Although in Wheelis v. State, supra, it was held that the giving of the accomplice instruction was error where the co-defendants testified on their own behalf, it was not held to be fundamental error. Likewise in Cool v. United States, supra, the defense made an objection sufficient to preserve the point on appeal. Additionally, we note that this particular instruction did not stand alone. It was incorporated into a series of instructions having as their thrust, the theme that the burden of proof was upon the state at every stage of the proceedings to prove guilt beyond a reasonable doubt. The trial court’s instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground for reversal. See Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 70 L.Ed. 857 (1926); and compare Forrest v. State, 133 Fla. 310, 182 So. 849, 853 (1938). Therefore, we hold that the giving of the instruction complained of, if error, was not fundamental error so as to warrant reversal of Stanley’s conviction absent a timely objection at trial.

Stanley has raised six other points on appeal. The first is that it was error for the court to allow the state to inquire, and to require the defendant to respond and admit that he was in custody for unrelated charges at the time of his arrest for the offenses charged herein. The defendant, having volunteered this information on his own direct examination, this point is governed by the invited error rule, which stands for the proposition that a defendant may not take advantage on appeal of an error which he himself induced at trial. Sullivan v. State, 303 So.2d 632 (Fla.1974); Castle v. State, 305 So.2d 794, 797 (Fla. 4th DCA 1974); Ellison v. State, 349 So.2d 731 (Fla. 3d DCA 1977).

The second point relates to reference by Stanley during trial to a “test,” meaning the polygraph examination which he took. This point is governed by the invited error rule, supra, as wdll as by Hutchins v. State, 334 So.2d 112 (Fla. 3d DCA 1976), and Crews v. State, 353 So.2d 210 (Fla. 3d DCA 1977), which cases hold that reversible error cannot be predicated upon pure speculation or mere conjecture. Stanley’s contention that the word “test” inevitably would be construed by the jury to mean polygraph examination, is mere conjecture.

The third point relates to the admission into evidence of color photographs of the deceased victim. We find that their relevancy supported their admission. Bauldree v. State, 284 So.2d 196 (Fla.1973); Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); Johnson v. State, supra. Stanley has failed to demonstrate that the admission of the photographs constituted an abuse of the trial court’s discretion. Allen v. State, 340 So.2d 536 (Fla. 3d DCA 1976); Mack v. State, 346 So.2d 1229 (Fla. 3d DCA 1977).

The fourth point is that the court erred in adjudicating Stanley guilty of first degree murder, robbery and kidnapping. We find this point to be without merit as the jury verdict and conviction thereon are based upon ample, substantial competent evidence at trial, proving up each and every element of the crimes charged beyond a reasonable doubt.

The fifth point is that the court erred in failing to suppress statements made by Stanley while in police custody. This point is not an adequate basis for reversal. A specific objection to the introduction of evidence must be timely raised during trial in order to be properly considered on appeal, as failure to raise such objection constitutes a waiver. The objection cannot be raised either at a later stage of the proceedings or on appeal, even though a motion to suppress the evidence was preliminarily made and denied by the court. See Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964); Koran v. State, 213 So.2d 735, 737 (Fla. 3d DCA 1968). Also see Rodriguez v. State, 189 So.2d 656 (Fla. 3d DCA 1966); State v. Dixon, 348 So.2d 333 (Fla. 2d DCA 1977).

The sixth and final point is that the court erred in publishing the defendant’s formal written statements after first allowing in testimony of his prior oral statements. Reversible error is not shown on this point. The fact that Stanley made an oral confession, the circumstances under which it was made and its contents were all relevant to the material issues of whether the written confession was voluntary, and consequently a proper area of inquiry for the state. Paramore v. State, 229 So.2d 855 (Fla.1969); State v. Oyarzo, 274 So.2d 519 (Fla.1973); Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977).

Affirmed.


author: ALDERMAN, Chief Judge. CROSS, Judge,

text:
    Harold Edward LANGE, Appellant, v. Billie Carola LANGE, Appellee.
    No. 76-2681.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 23, 1978.
    Jos. D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellant.
    Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

In this divorce case the husband contends that the trial court abused its discretion by awarding alimony in excess of the wife’s need and that the trial court also erred in awarding exclusive possession of the marital home to the wife. We affirm.

Briefly stated the facts are as follows: At the time of final hearing the husband was 58 and the wife was 52. They had been married for 30 years and had two adult children. The husband is a dentist and has practiced his profession in West Palm Beach for 25 years. His net income for 1975 was $46,338 and he had a net worth of $155,000. The wife was not employed during the marriage and has no prospects of employment. She has been treated for mental problems. In the opinion of her psychiatrist her mental problems are permanent and it is doubtful that she would ever be employable. She has an emotional attachment to the marital home and believes that if she were forced to leave the home that she would crack up. The evidence as to her financial needs, if believed by the trial court, would justify the court’s alimony award. Her assets include a $40,000 equity in the marital home and its furnishings, $1,000 in cash, $550 in a checking account, and a 1969 automobile. She has no outstanding liabilities.

The trial court ordered in part that: The Petitioner shall have exclusive possession of the homeplace at 526 Oyster Road, North Palm Beach, Florida, for the use of herself only until she remarries. During said occupancy, the Petitioner shall be responsible for (1) all utilities and telephone service thereon, and (2) yard, maintenance and repairs thereon under $100.00; and the Respondent shall be responsible for any of the parties’ mutually agreed upon expenses involving maintenance, repairs and improvements to the said premises which exceed $100.00 and which are necessary to maintain said premises in an acceptable standard and appearance for the general neighborhood in which the property is located. In this respect, any such amounts expended by the Respondent shall be credited towards his equity in the homeplace.
The Respondent shall pay to the Petitioner as alimony the sum of $950.00 per month, payable on December 1, 1976 and on the first day of each month thereafter until the Petitioner is remarried or deceased.
The Respondent shall be responsible for any necessary and reasonable medical, hospital and doctor bills incurred on behalf of the Petitioner, except for drug expenses which shall be the responsibility of the Petitioner.
‡ * !ji * * Sft
Any personalty or realty jointly owned by the parties shall hereafter be owned by them as tenants in common.

In determining whether a trial court has abused its discretion in awarding alimony, it is not the function of an appellate court to substitute its judgment for that of the trial court. The test is whether the judgment of the trial court is supported by competent evidence. Hazelwood v. Hazelwood, 345 So .2d 819 (Fla. 4th DCA 1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). The total award in this case is generous, but we cannot say that the trial court abused its discretion since its decision is supported by competent evidence.

In addition the husband argues that the alimony award was improper as to form as well as to amount. He says that it should be rehabilitative rather than permanent. In the recent case of McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), we set out the various criteria upon which an award of permanent alimony may be predicated. Several of these criteria are met in the present case. We find no abuse of discretion on the part of the trial court in awarding permanent rather than rehabilitative alimony.

The husband’s final point on appeal is that the trial court erred in awarding exclusive possession of the jointly owned marital home to the wife. In two early cases the Supreme Court recognized that in a divorce proceeding the trial court could grant to the wife exclusive possession of the jointly owned marital home to meet the husband’s obligation to support his wife and minor children. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947); McRae v. McRae, 52 So.2d 908 (Fla.1951). In a later case the court said that this is equally true where the duty of support runs to the wife alone. Banks v. Banks, 98 So.2d 337 (Fla.1957). Thereafter we stated the general rule in Berger v. Berger, 182 So.2d 279 (Fla. 4th DCA 1966), as follows: “It is clear that the court may award the use and possession of a home owned as a tenancy by the entirety, whether homestead or not, to a wife as an incident to the court’s power to award child support or alimony.”

Recently, in Hazelwood v. Hazelwood, supra, we reversed that part of a divorce judgment that granted to the wife exclusive possession of a jointly marital home until her death, remarriage or her failure to use it as her primary place of residence. But that case is distinguishable from the present case because in Hazelwood the wife was able-bodied, capable of employment and the husband had very little in the way of capital assets. Here the wife is mentally ill and able to function from day to day only with the drugs that she is taking. Without them, according to her doctor, she would be in a mental institution. Also she has a strong emotional attachment to the homeplace where she has spent the last 17 years and where she feels secure. There is a danger if she were forced to leave the home that she would crack up.

We conclude that in divorce proceeding where there has been a demonstrated need, the trial court may grant exclusive possession of the jointly owned marital home to one spouse as a form of alimony. Applying this conclusion of law to the facts of this case we find that there are special circumstances and a demonstrated need on the part of the wife which justify the trial court’s decision in this case.

Having found no abuse of discretion on the part of the trial court, we affirm the final judgment.

DAUKSCH, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The majority seeks to create today a new form of alimony heretofore unrecognized by the courts of this state. It is established law in Florida that exclusive possession of the jointly owned marital domicile may be awarded to the wife in a dissolution of marriage proceeding only in special, carefully-defined circumstances. These circumstances include a situation where minor children are present, Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975); Berger v. Berger, 182 So.2d 279 (Fla. 4th DCA 1966), when possession accompanies the award of the husband’s interest in the home as part of lump sum alimony, Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975); Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976), or where special equities exist in favor of the wife which support her exclusive use and possession, Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1976). The temporary nature of the wife’s possession of the husband’s undivided interest in the home belies any attempt to characterize the award of exclusive possession as permanent or lump sum alimony. Rehabilitative alimony is clearly not proper, since the record affirmatively shows that the wife will never be capable of self-support. West v. West, 345 So.2d 756 (Fla. 4th DCA 1977). The award of exclusive possession o.f the marital home to the wife in the instant case clearly has no basis in the jurisprudence of this state, and therefore is clearly improper. Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976).

The majority has also seen fit to expand the concept of the wife’s “need” for alimony far beyond all permissible limits of judicial construction. By affirming the award to the wife of exclusive possession of the jointly owned marital home based only on the wife’s emotional attachment thereto, the majority has opened a Pandora’s Box for claims based on subjective determinations which the courts of this state are ill-prepared to handle in dissolution proceedings. The very heart of an alimony award is and always has been the need of the demanding spouse for support. Collins v. Collins, 323 So.2d 583 (Fla. 3d DCA 1975); Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973). The purpose of alimony is to provide nourishment, sustenance and the necessities of life to the former spouse. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Emotional attachment is not, nor should it ever be the sole basis for the award of either title or use to property in a dissolution proceeding.

The record shows that during the period of separation prior to the dissolution of the marriage, the appellee received temporary alimony in the amount of $700 per month. The evidence establishes that this amount was more than sufficient to satisfy appel-lee’s needs. The trial court awarded and the majority has affirmed an award of permanent alimony in the amount of $950 per month in addition to several miscellaneous items of support. When exclusive possession of the marital home is added to the already generous award of permanent alimony, the amount of alimony appears so great and so beyond the financial needs of the wife for support and the ability of the appellant to pay as to utterly shock the judicial conscience.

Accordingly, I would reverse that portion of the trial court’s order granting exclusive possession of the marital home to the wife.

      . There were conflicts in the evidence presented to the trial court, but at this level we must view the evidence in the light most favorable to the appellee.


author: MOORE, Judge.

text:
    Debbie BURLESON and Monica French, Appellants/Cross Appellees, v. Donald J. STARK and International Land Sales, Inc., Appellees/Cross Appellants.
    No. 76-2732.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 23, 1978.
    Philip M. Warren of Sullivan, Cochran, Ranaghan, Bailey & Gleason, P.A., Pompano Beach, for appellants.
    Neil J. LaHurd and H. Mark Purdy of Parkhurst, LaHurd & Purdy, Fort Lauder-dale, for appellee International Land Sales, Inc.
    Roger D. Haagenson, Fort Lauderdale, for appellee Donald J. Stark.
   MOORE, Judge.

Appellants, plaintiffs below, were awarded damages by the jury as follows: Debbie Burleson was awarded $5,000.00 compensatory damages plus $1,000.00 punitive damages; and Monica French was awarded $40,000.00 compensatory damages plus $1,000.00 punitive damages. Without providing appellants with the alternative of a new trial, the trial court granted appellees’ motion for remittitur, thereby reducing the appellants’ awards for compensatory damages to $2,000.00 and $6,000.00, respectively. The punitive damage awards were not disturbed.

Appellants contend that the trial court erred in granting the motion for remittitur because the jury awards were not so excessive as to shock the judicial conscience, and because they were not afforded the alternative of accepting a new trial. On cross appeal, appellee Stark contends that erroneous evidentiary rulings by the trial court entitle him to a new trial. On another cross appeal, appellee International Land Sales, Inc. contends that its motion for a directed verdict should have been granted.

International Land Sales, Inc. is a corporation which was organized by two individuals “to get involved in real estate.” Needing a real estate broker in order to be able to buy and sell land, International hired appellee Stark as a vice president. When the purpose for which International Land Sales, Inc. was organized was not realized, the corporation became inactive and liquidated its assets. Prior to that, however, 25% of all real estate commissions were deposited to the credit of the corporation.

During the period of International’s inactivity, appellee Stark agreed with Maccari Construction Company to attempt to rent some of its unsold condominium units. The evidence is unclear as to whether or not real estate commissions from such rentals, or any part thereof, were deposited to the credit of International. Through Stark, the plaintiffs had rented one of the condominium units owned by Maccari. On April 30, 1975, at approximately 2:00 A.M., Stark entered the plaintiffs’ apartment with a passkey given to him by Maccari, in an intoxicated state, supposedly for the purpose of collecting rent. He thereupon entered the plaintiffs’ bedroom, made sexual advances toward each of the plaintiffs, and physically struck each of them.

Initially, we hold that the trial court erred in granting the motion for re-mittitur. A verdict may be set aside by the trial court only when it is so excessive as to shock the judicial conscience. Willyerd v. Anderson, 312 So.2d 504 (Fla. 4th DCA 1975); 23 Fla.Jur., “New Trial,” § 59. While a detailed review of the evidence would serve no useful purpose, we would point out that there was testimony that Monica French would incur over $24,000.00 in future medical expenses for necessary psychiatric care. Furthermore, she lost wages in the amount of $3,800.00, was forced to take a new job at a lower salary, and incurred medical bills totalling $550.00. While the verdict may be somewhat excessive, it can hardly be deemed shocking to the judicial conscience. Similarly, although Debbie Burleson’s medical expenses, lost wages and miscellaneous damages were minimal, we cannot find the jury award shocking to the judicial conscience.

The remittitur was also improper because the trial court failed to give the appellants the alternative of accepting the remittitur or proceeding with a new trial. The courts of this state have continually held that “[a] trial judge is not permitted to reduce the verdict of a jury by ordering a remittitur, without permitting the plaintiff to have the option of a new trial.” Dura Corp. v. Wallace, 297 So.2d 619, 621 (Fla. 3d DCA 1974); see also, Willyerd, supra.

With respect to International’s cross appeal, we hold that the trial court erred by not granting International’s motion for directed verdict. International can be vicariously liable for Stark’s actions only if those actions were performed within the scope of Stark’s employment by International. In discussing the phrase “scope of employment”, the Second District recently said:

“An employee’s conduct is within the scope of his employment only if it is the kind he is employed to perform, it occurs substantially within the time and space limits of the employment and it is activated at least in part by a purpose to serve the master. The convenient test is whether the employee was doing what his employment contemplated.” Morrison Motor Co. v. Manheim Services Corp., 346 So.2d 102, 104 (Fla. 2d DCA 1977).

The scope of one’s employment is certainly limited by time parameters. In the absence of express directions by the employer, it is totally inconceivable that an employment relation could contemplate an attempt to collect rent at 2:00 A.M. It is also incomprehensible how the scope of employment could include such an unlawful entry into another’s dwelling and the resultant acts incident thereto as occurred in this case. As Mr. Stark’s actions were clearly not within the scope of his employment, the jury should not have been submitted the issue of vicarious liability and International’s motion for directed verdict should have been granted.

Finally, we have reviewed the points raised in Stark’s cross appeal and have determined that they are without merit.

Having determined that it was error for the trial court to enter its order granting remittitur, this cause is REVERSED and REMANDED with instructions to the trial court to reinstate the jury verdicts, to enter final judgments for appellants and against appellee Stark in accordance with said verdicts, and to enter judgment for International in accordance with its motion for directed verdict.

REVERSED and REMANDED.

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


author: McCORD, Chief Judge. McCORD, Chief Judge.

text:
    Catherine Norred MORGAN et al., Appellants, v. AMERADA HESS CORPORATION et al., Appellees.
    No. EE-193.
    District Court of Appeal of Florida, First District.
    April 6, 1978.
    Rehearing Denied In Part and Granted In Part May 12, 1978.

      Tom J. Stollenwerck and Don E. Williams of Moore, Peterson, Bauer, Williams & Stol-lenwerck, Dallas, Tex. and Alan B. Book-man of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    Peter J. Winders and Dennis K. Larry of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Donald Partington of Clark, Part-ington, Hart & Hart, C. Miner Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, William D. Ryals of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, James E. Hart, Jr., Brewton, Ala. and T. Sol Johnson of Johnson, Johnson & Green, Milton, for appellees.
   McCORD, Chief Judge.

This appeal is from a summary final judgment based upon a finding by the trial court in a quiet title suit below that “the claim of the plaintiffs is barred by applicable statutes of limitation.” We reverse.

Appellants (plaintiffs below) are the four children of Ernest Leslie Norred (hereafter referred to as Norred) who died on August 8,1973. Norred was declared insane by the county judge in and for Escambia County, Florida, on February 23, 1941, at which time the oldest appellant was five years old and the youngest not yet born. Norred was committed to the Florida State Hospital where he remained until his death. His ■sanity was never judicially restored, and according to his brothers and sisters, he in fact never regained his competency. Norred’s wife divorced him in 1944, and in 1948 she moved with the appellants from Pensacola, Florida, to Houston, Texas.

Norred and his brothers and sisters inherited from their father certain real estate (the subject of this litigation) comprising approximately 60 acres located in Santa Rosa County, Florida. Some of the brothers and sisters conveyed their interest in the property to the others so that in 1963, the property was owned by four of the brothers and sisters, one of these being Norred, who as aforesaid had been adjudicated a mental incompetent and committed to the Florida State Hospital. Norred owned a %2 interest in the property.

Norred’s brothers and sisters decided to sell the real estate, and because of title questions, it was necessary to institute a quiet title suit (a previous suit to the case sub judice) and appoint a guardian for Norred. His brother Carl was appointed guardian of his property in proceedings in the County Court of Escambia County on December 7, 1962. Carl was duly qualified and received letters of guardianship and was thus a party to the quiet title suit both individually and as Norred’s guardian. Carl’s petition for appointment as guardian listed the persons most closely related to Norred as certain of his brothers and sisters but did not mention his four children, the appellants, who were all adults by this time. Appellants were thus not served with formal notice of the guardianship proceeding. Three of them had been notified of the proposed sale of the property by letter dated November 19, 1962, from the attorney employed by Carl to represent him in connection with his appointment as guardian. He advised the children that it was necessary to appoint a guardian of their father’s property and that the sale of the property at a favorable profit was under consideration by their father’s brothers and sisters, who together owned ^ of the property. The children were advised by the letter that a sale of their father’s %2 interest would be approved by the county judge; that his brother Carl would be appointed guardian; that any funds expended from the estate of Norred would be solely for Norred’s benefit and that Carl was an honest and straightforward person who would protect the property interest of Norred. The children were also advised to notify either the attorney or the county judge of any objections they had to the appointment of Carl as guardian and to advise the attorney of any comments they might have concerning the subject matter of the attorney’s letter. The attorney received no communication from them.

A petition for leave to sell the property of Norred was prepared and signed by Carl, and a proposed order of sale was also prepared. A suit to quiet title was consummated, and the property was conveyed by Carl in his own behalf and as guardian for Norred and by Norred’s other brothers and sisters. The petition signed by the guardian seeking the court’s approval of the sale was never filed and thus no court approval was obtained.

Upon Norred’s death, three of his children came to Pensacola for his funeral. The sale of the property was discussed with them after the funeral and Carl explained that Norred’s proceeds from the sale were needed to pay his funeral and burial expenses to which the children agreed. They contend, however, that they were not aware of the sale of their father’s interest in the property until they came to Pensacola for his funeral. Later, on December 31, 1975, the children filed the complaint in this cause to quiet title contending that the conveyance by Carl, as guardian of their father’s interest in the property, was void and that title to his former interest is in them as his sole heirs.

§ 745.05, Florida Statutes (1963), which was in effect at the time of the sale of the property, states as follows:

“Sale. — When the guardian of the property deems it expedient, necessary, or for the best interest of the ward for part or all of the property to be sold, he may sell at public or private sale, but no title shall pass until the sale is authorized or confirmed by order of the county judge; .” (Emphasis supplied.)

It is under this statute that appellants contend no title passed to the grantees and that title remains in them as Norred’s sole heirs. Appellees contend and the trial court ruled that appellants’ suit is barred by certain statutes of limitations. The first of these is § 95.12, Florida Statutes, which provides as follows:

“No action to recover real property or its possession shall be maintained unless the person seeking recovery or his ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.”

On its face, the foregoing statute would appear to bar appellants’ action to quiet title since nearly 16 years passed between the time the cause of action for recovery of the property accrued in the ward and the filing of this suit by the ward’s heirs (appellants). Another statute must be considered, however, and it is § 95.20(1), Florida Statutes (1973) [repealed by Ch. 74-382, Laws of Florida, but with a savings clause contained in § 95.022, Florida Statutes (1975), which would be applicable to this cause of action]. Section 95.20(1), Florida Statutes (1973), provides in pertinent part as follows:

“If a person entitled to commence any action for the recovery of real property, . be, at the time such title shall descend or accrue, either:
(a) • • •
(b) insane; or
(c) . . .
The time during which said disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, but such action may be commenced, . . . within the period of seven years after such disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, . . . after that period.”

Norred’s disability continued until his death, and this action was brought within seven years thereafter. Appellees contend, however, that § 95.20(1) should not be held to apply to an insane person for whom a guardian has been appointed. We disagree. Although we have not found specific authority on this point in Florida, the general rule in other jurisdictions seems to be that the appointment of a guardian for a mentally incompetent person does not start the running of the period of limitation, although there is an exception to this rule in some jurisdictions where the right of action is considered to be in the guardian rather than in the incompetent. See Annotation, 86 A.L.R.2d 965 (1962). In the case sub judice, it was the guardian who attempted to convey the ward’s interest in the property to third persons without court approval. Under these circumstances, it would be unjust to rule that the guardian’s failure to bring an action to rescind his deed should be charged to his ward. To engraft into the statute an exception which the legislature did not see fit to itself put in the statute would amount to judicial legislation.

Additionally, appellees contend that § 95.20 did not toll the running of the statute of limitations in favor of Norred because it requires, by its terms, that the asserted disability had been in existence at the time title vested in the person claiming the disability. This contention, however, flies in the face of the construction placed by the Supreme Court on a predecessor statute to § 95.20, which in all material respects to the point here involved is identical with § 95.20. There, the Supreme Court in Gillespie v. Florida Mortgage & Investment Co., 96 Fla. 35, 117 So. 708 (1923), stated as follows:

“The disabilities that prevent the running of the statute of limitations in actions to recover real property as stated in the statute are infancy, insanity, and imprisonment; and the disability must exist at the time the title descends or the right of action accrues. This is the intent and meaning of the statute. By the terms of the statute the action may be commenced within the period of seven years after the disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced after that period.” (Emphasis supplied.)

We,. therefore, conclude that this action is not barred by § 95.12, Florida Statutes, as modified by § 95.20(1), Florida Statutes (1973).

Appellees also rely upon § 95.21, Florida Statutes, to defeat this action. That statute provides in pertinent part as follows:

“The title of any purchaser, or his assigns, who has held possession for 3 years of any real . . . property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court proceedings authorizing the sale, whether jurisdictional or not. The title shall not be questioned at any time by anyone who has received the money to which he was entitled from the sale . . . ” (Emphasis supplied.)

Appellees contend that the defect of failure to obtain court approval of the sale is cured by the above statute. We disagree. The portion of the above statute which we have underlined cures any insufficiency or irregularity in the court proceedings authorizing the sale, but here there were no court proceedings authorizing the sale. Thus, this provision of the statute has no applicability to this sale. As to the further provision that title shall not be questioned at any time by anyone who has received the money to which he was entitled from the sale, here appellants who are questioning this title have received no money from the sale.

Appellee next contends that this action is barred by § 95.22, Florida Statutes (1975).

“Limitation upon claims by remaining heirs, when deed made by one or more.—
(1) When a person owning real property or any interest in it dies and a conveyance is made by one or more of his heirs or devisees, purporting to convey, either singly or in the aggregate, the entire interest of the decedent in the property or any part of it, then no person shall claim or recover the property conveyed after 7 years from the date of recording the conveyance in the county where the property is located.
(2) This section shall not apply to persons whose names appear of record as devisees under the will or as the heirs in proceedings brought to determine their identity in the office of the judge administering the estate of decedent.” (Emphasis supplied.)

Upon the death of Norred’s father, the administrator of his father’s estate filed a petition in the County Judge’s Court of Santa Rosa County, Florida, in connection with such administration listing all heirs, including Norred. Thus, Norred appeared of record as an heir in a proceeding brought to determine the identity of the heirs of his father for purposes of distribution of his estate, which included the property in question. Referring to subsection (2) of § 95.22 above, it is readily seen that § 95.22 specifically does not apply to the conveyance of this property by the heirs of Norred’s father.

The summary final judgment in favor of appellees is reversed, and the cause is remanded for further proceedings.

BOYER and ERVIN, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

A petition for rehearing was filed on April 17, 1978, by appellees signed by two attorneys of firms representing appel-lees and listing other attorneys and firms representing appellees. Subsequently, on April 20, 1978, a “Supplemental Petition for Rehearing” was filed by an attorney representing appellees Thomas E. McMillan and Elvira Cochran McMillan. Appellants filed a reply to the petition for rehearing and a pleading entitled “Opposition to Supplemental Petition for Rehearing.” By this latter pleading, appellants requested that this Court deny any consideration of the Supplemental Petition for Rehearing filed by appellees Thomas E. McMillan and Elvira Cochran McMillan contending that said petition is in violation of paragraphs (a) and (e) of Florida Appellate Rule 3.14. The petition is not in violation of paragraph (a) of said Rule because it was filed within 15 days after the filing of this Court’s opinion. Paragraph (e) of said Rule provides as follows:

“e. Only One Petition Allowed. The petitioner shall be entitled to file only one petition for rehearing with respect to the particular decision and no further petition or motion will be received or filed by the clerk or considered by the Court.”

In view of the fact that the Supplemental Petition for Rehearing was timely filed and that it presents an issue that is peculiar to appellees Thomas E. McMillan and Elvira Cochran McMillan and also since it presents a point which we did overlook in our previous opinion, we do not consider that filing of this Supplement on behalf of these two appellees violates the aforesaid rule. These appellees call attention to the fact that they were not joined as party defendants in this cause until June 1, 1976, which was after the expiration of the saving clause provided for in § 95.022, Florida Statutes (1975). Thus, the repeal of § 95.20(1), Florida Statutes (1973), became effective as to appellants in their suit against appellees Thomas E. McMillan and Elvira Cochran McMillan. The statute of limitation specified in § 95.-12, Florida Statutes, bars appellants’ action against said two appellees. Our foregoing opinion is, therefore, modified to the extent that the summary final judgment is affirmed as to Thomas E. McMillan and Elvira Cochran McMillan.

The petition for rehearing of the remaining appellees is denied and the case is remanded for further proceedings consistent herewith.

BOYER and ERVIN, JJ., concur.


text:
    GENERAL MOTORS CORPORATION, Petitioner, v. STATE of Florida, Respondent.
    Nos. 77-1836, 77-1855, 77-1948 and 77-1974.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Rehearing Denied May 19, 1978.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for petitioner.
    Janet Reno, State’s Atty. and Stephen V. Rosin, Asst. State’s Atty., for respondent.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By petition for writ of certiorari filed by General Motors Corporation against the State of Florida, there is presented for review an order of the circuit court of Dade County denying a motion of General Motors to quash a subpoena duces tecum directed to it for production of designated documents, service of which was made by serving the Florida resident agent of General Motors, said subpoena having been issued at the instance of the State Attorney of Dade County under Section 27.04, Florida Statutes (1975) incident to a criminal investigation.

The petitioner contends the court departed from essential requirements of law by denying its motion to quash the subpoena duces tecum. In support thereof petitioner argues services on its resident agent was ineffective; that issuance of the subpoena duces tecum was improper in that the exclusive method to have been employed was that which is provided by Chapter 942, Florida Statutes (1975) relating to interstate extradition of witnesses; and that the subpoena was too broad.

In an opinion order, the trial court dealt with those contentions when raised in the circuit court, and correctly denied all of them except the contention that the subpoena was too broad. Agreeing with that contention, the court granted the motion as to certain paragraphs of the subpoena. The order of the trial court, which we hold correctly disposed of the questions involved, is deserving of being set out here. It was as follows:

“Pursuant to a request from the Office of the State Attorney, on July 29, 1977 the Clerk of the Circuit Court, Eleventh Judicial Circuit, Dade County, Florida, issued a subpoena duces tecum to General Motors Corporation, a Delaware corporation, registered to do, authorized to do, and doing business in Florida. On August 2, 1977, the subpoena duces tecum was served on C. T. Corporation Systems, the Florida designated resident agent for General Motors Corporation. General Motors Corporation is commanded by the subpoena duces tecum to bring certain corporate documents and records to the Office of the State Attorney for inspection on August 8, 1977. General Motors Corporation responded to the subpoena duces tecum on August 5, 1977, by filing a motion to quash the subpoena. In addition, General Motors Corporation has filed an affidavit stating that while some of the records and documents subpoenaed are in the possession of the Zone Office, Oldsmobile Division, General Motors Corporation, located in Jacksonville, Florida, the remaining subpoenaed documents and records are located outside the State of Florida. This matter, then, is before this Court pursuant to the motion of General Motors Corporation to quash the subpoena duces tecum issued at the behest of the Office of the State Attorney.
“The Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, Chapter 942 of the 1975 Florida Statutes, as it is now worded is limited to acquiring the attendance and the testimony of witnesses located outside of Florida. There is presently a conflict of opinion regarding the applicability of the Uniform Law to a request for production of documents ancillary to a request for testimony. Compare In the Matter of Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (1st D.C.A. 1965) with In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (Super.Ct.App.Div.1954) and In re Bick, 82 Misc.2d 1043, 372 N.Y. S.2d 447 (Sup.Ct.1975). The Uniform Law does not, as it presently reads, apply to requests solely for the production of documents. Furthermore, as noted above, the Uniform Law applies only to witnesses located outside of Florida. Since the instant subpoena duces tecum requests only the production of documents and since it is directed to a foreign corporation authorized to do, registered to do and doing business in Florida, the Uniform Law is inapplicable.
“Section 607.327, Florida Statutes (1975), perspicuously provides that process may be served upon a foreign corporation pursuant to the provisions of Chapters 48 or 49 of the Florida Statutes. Sections 48.-081(1) and (3), 48.091(1), and 48.181(2) Florida Statutes (1975), require every foreign corporation qualified to transact business in this state to designate a resident agent upon whom legal process may be properly served. Service of the instant criminal investigatory subpoena duces tecum upon C. T. Corporation Systems, the designated resident agent of General Motors Corporation was, therefore, authorized by and consistent with the provisions of Florida law.
“Once process is served on a party and in personam jurisdiction over said party is concomitantly conferred upon the Court, that party may be required by the court to perform acts outside the territorial jurisdiction of the court. Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 552, 97 L.Ed. 319 (1952); New York v. O’Neil [O’Neill ], 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959); Reynolds v. Reynolds, 41 So.2d 310 (Fla.1949); and Singer v. Tobin, 201 So.2d 799 (3rd D.C.A. Fla. 1967). A subpoena duces tecum issued by a Court, consequently, reaches all documents under the control of the party required to produce them, even if those documents are located outside the territorial jurisdiction of the court. In re Consolidated Rendering Co., [80 Vt. 55], 66 A. 790 (Vt.1907), aff’d sub nom. Consolidated Rendering Company v. Vermont, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327 (1908); United States v. First National City Bank, 396 F.2d 897 (2nd Cir. 1968); and In re Grand Jury Subpoena Duces Tecum, 72 F.Supp. 1013 (S.D.N.Y.1947). The subpoena duces tecum served upon General Motors Corporation, therefore, properly requires the production not only of those documents located within Florida but also those documents located outside Florida. “To avoid being overbroad a subpoena duces tecum must designate and specify with some degree of certainty and particularity the documents sought to be produced. State ex rel. Everglades Cypress Co. v. Smith, 104 Fla. 91, 139 So. 794 (1932). This test prohibits the issuance of subpoena duces tecum requiring the production of large numbers of documents merely to allow for a search through them to gather evidence. Imparate [Imparato] v. Spicola, 238 So.2d 503 (2nd D.C.A. Fla.1970). The requests for production of documents in paragraphs 12, 13 and 17 of the instant subpoena duces tecum are overbroad. Furthermore, the documents requested in paragraphs 18 and 19 of the subpoena relate to a civil case and are, consequently, not relevant to a criminal investigation.
“Based on the foregoing statement of facts and conclusions of law made by this Court, it is
“ORDERED AND ADJUDGED that the motion of General Motors Corporation to quash the criminal investigatory subpoena duces tecum issued at the request of the Office of the State Attorney is denied with respect to paragraphs one through eleven (1-11) and fourteen through sixteen (14-16), and is granted with respect to paragraphs twelve, thirteen and seventeen through nineteen (12, 13, and 17-19). “All Petitioners for Rehearing presently pending before the Court upon any subpoena are hereby denied;
“The Motion to Stay Production of documents pending outcome of the appeal is hereby granted and GENERAL MOTORS CORPORATION need not produce any documents until after all appellate rights of review from the orders of this Court have been exhausted.”

We find no need to add to the foregoing decision and opinion of the circuit court, and no reason to disturb that decision other than to direct that following our denial of certiorari the trial court should enter an order fixing a date on or before which General Motors Corporation shall comply with the subpoena duces tecum, with the time for compliance so fixed being reasonably sufficient for the purpose, taking into consideration the nature and extent of the required performance or response to the subpoena duces tecum.

Accordingly, the application for writ of certiorari is denied, and the petition is dismissed.


author: MELVIN, Judge.

text:
    Robert AXELROD, Appellant, v. Paul CALIFANO, Appellee.
    No. EE-88.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Rehearing Denied May 17, 1978.

      Lawrence C. Rolfe of Rolfe & Stirling, Jacksonville, for appellant.

      John Paul Howard, Jacksonville, for ap-pellee.
   MELVIN, Judge.

Appellant Axelrod takes this appeal for review of a final summary judgment in favor of appellee Califano. We reverse.

Axelrod filed his complaint in defamation alleging that Califano had slandered him by making statements to third persons that Axelrod had, among other things, stolen large sums of money from the Y.M.C.A. and forged certain checks. Califano answered, raising as affirmative defenses the truth of the statements made, his lack of ill motive or malice in making said statements and a qualified privilege founded on the operation of Califano’s business. At the same time, Califano filed a motion for summary judgment alleging that all of his statements about Axelrod were: 1) Made at Califano’s place of business; 2) to an employee entitled to receive such information; 3) within the scope of the operation of the business; and 4) without ill motive or malice toward Axelrod. Califano also alleged that he had reasonable grounds to believe that what he said was true and, further, that he had given express instructions to the employee that the reasons for Axelrod’s discharge were not to be made public.

In response, Axelrod filed an affidavit in opposition to summary judgment alleging that the statements Califano made about him were not true and were made with malice and ill motive solely for the purpose of harming him.

On October 29, 1976, the trial court entered summary judgment in favor of Cali-fano.

Slander may be defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood. 20 Fla.Jur. Libel and Slander, § 3. When the words published concerning a person tend to degrade him, bring him into ill repute, destroy confidence in his integrity, or cause other like injury, such language is actionable per se. Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887); Stewart v. Codrington, 55 Fla. 327, 45 So. 809 (1908); Harriss v. Metropolis Co., 118 Fla. 825, 160 So. 205 (1935). Further, a publication which falsely and maliciously charges another with the commission of a crime is actionable per se. Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933).

In the instant case, the alleged publication branding Axelrod a thief and forger was actionable per se, and, as such, raised a presumption of malice as a matter of law. Layne v. Tribune Co., supra; Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (Fla.1934); and Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938).

Malice may be presumed here by the actionable per se nature of the alleged publication and is an essential element of slander. Another essential element is the falsity of the publication. Caldwell v. Crowell-Collier Pub. Co., 161 F.2d 333 (5th Cir.1947), cert. den., 332 U.S. 766, 68 S.Ct. 74, 92 L.Ed. 351. Conversely, the truth of the publication is a good defense, assuming that it was made with good motives. Article I, Section 4, Florida Constitution. Here, Cali-fano, in his motion for summary judgment, alleged the truth of his statements, while Axelrod, in his affidavit in opposition thereto swore they were false, thus raising an issue of fact. While malice is presumed when the publication is actionable per se, a showing that the defendant actually intended to injure the plaintiff is the equivalent of malice in fact. Jones v. Greeley, 25 Fla. 629, 6 So. 448 (1889); 20 Fla.Jur. Libel and Slander, § 53.

The issue of malice is critical because in cases in which a qualified privilege exists, the essential element of malice may not be imputed. Rather, in order to recover, the plaintiff must prove express malice or malice in fact. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); and Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). Thus, actual malice, or malice in fact, constitutes an abuse of a qualified privilege, leaving the defendant liable.

In the instant case, Califano has alleged, among others, the defense of a qualified business privilege.

20 FlaJur. Libel and Slander, § 61 states that:

“. . . A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation.”

Thus expressed, the elements essential to the finding of a conditionally privileged publication are: 1) Good faith; 2) an interest to be upheld; 3) a statement limited in its scope to this purpose; 4) a proper occasion; and 5) publication in a proper manner. Abraham v. Baldwin, supra; and Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). To be qualifiedly privileged the communication must be made by a person having á' duty or interest in the subject matter, to another having a corresponding duty or interest.

With respect to the qualified privilege founded on business matters, the otherwise slanderous publication must be in regard to the business, made by one having an interest in the business and solely to others having an interest in the business. Montgomery v. Knox, supra; Coogler v. Rhodes, supra; Arison Shipping Company v. Smith, 311 So .2d 739 (Fla. 3d DCA 1975); and Frank Coulson, Inc.—Buick v. Trumbull, 328 So.2d 271 (Fla. 4th DCA 1976).

Summary judgment serves to expedite the settlement of litigation where it affirmatively appears on the record that there is only a question of law as to whether the party should have judgment in accordance with the motion. Meadows v. Edwards, 82 So.2d 733 (Fla.1955); 30 Fla.Jur. Summary Judgment, § 2. However, summary judgment should be sparingly granted so as to not infringe on the constitutional right to a jury trial. Judge Donald Carroll reviewed some of the rules controlling entry of summary judgment, for this court, in Torrence v. Sacred Heart Hospital, 251 So.2d 899 (Fla. 1st D.C.A.1971), saying:

“1. ‘Such judgments should be sparingly granted * * *. To sum it all up, if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted.’ Williams v. City of Lake City, 62 So.2d 732 (Fla.1953). In the later case of Manning v. Clark, 71 So.2d 508 (Fla.1954), the Florida Supreme Court thus explained the meaning of the words ‘slightest doubt’ in its Williams opinion: ‘* * * when a judge encounters doubt as to the existence or nonexistence of a genuine issue of fact the doubt should be resolved against the movant.’
“2. ‘* * * Insofar as factual matters are concerned, doubts and inferences must be resolved against the mover. * *’ Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla.App.1960).
“3. This court held in McKean v. Kloeppel Hotels, Inc., 171 So.2d 552 (Fla.App. 1965): ‘It is well settled in this jurisdiction that the moving party for a summary judgment is held to a strict standard. The pleadings and proofs supporting such motions are strictly construed against the movant, while those opposing the motion are leniently treated in determining whether the movant has satisfied the burden required of him * * *.’
“4. ‘The facts in evidence, and all reasonable inferences arising therefrom, must be indulged in favor of .the party against whom a motion for summary judgment is asked- The converse is never true.’ Harding v. American Universal Insurance Co., 130 So.2d 86 (Fla.App. 1961).”

Quite simply, summary judgments should be granted only in those cases where there remains no genuine issue of any material fact that would properly fall to a jury.

These rules are applicable to summary judgment proceedings in defamation actions as well. Thus, when the facts and circumstances under which a communication was made are conceded, whether or not they are sufficient to establish that the communication was privileged is a question of law for the court. Myers v. Hodges, supra; Abraham v. Baldwin, supra; and 20 Fla.Jur. Libel and Slander, § 135.

However, when the evidence is conflicting as to the existence or nonexistence of privilege there is a mixed question of law and fact, and the fact issue is to be determined by the jury. Hartley & Parker v. Copeland, 51 So.2d 789 (Fla.1951). If the privilege is conditional or qualified, and there is sufficient evidence to indicate that the privilege may have been exceeded or abused, the issue of fact must be submitted to the jury.

The limited record in this case reveals that Axelrod was employed as the director of Califano’s skin diving college. Upon receipt of the accusation of another employee that Axelrod was stealing certain sums of money from the college, as well as abusing his association with the Y.M.C.A., Califano summarily fired him. Subsequent to the firing, Califano advised one DiPerna of the dishonest acts surrounding Axelrod’s firing and showed him certain documentary evidence of same. At the time of publication of these actionable per se remarks DiPerna was a full time high school teacher, who had worked on a part-time basis for Califano. In fact, at the time the remarks were made to him, it may be reasonably inferred that DiPerna was at the college on personal business and had not been employed by Califano for one to two months. This relationship between Califano and DiPerna was the basis for Califano’s claim of qualified privilege, which claim was controverted by Axelrod’s affidavit arguing that the privilege, even if it was found to exist, was abused.

We hold that the allegations of the complaint, the supporting depositions and the affidavits in opposition to entry of summary judgment, left unresolved conflicting factual allegations sufficient to preclude the entry of a summary judgment.

REVERSED.

ERVIN, J., concurs.

SMITH, Acting C. J., dissents.


author: DAUKSCH, Judge. DOWNEY, Judge,

text:
    In the Interest of M. E., a child.
    No. 76-2016.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.
    Rehearing Denied May 23, 1978.
    Richard L. Jorandby, Public Defender, and Steven H. Parton, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

In this prosecution for burglary it was charged the accused juvenile unlawfully entered a structure located at 117 Northwest 18th Street, Pompano Beach, Broward County, Florida, the property of Wesley Phillips. It was proved Wesley Phillips ran the store which was burglarized and that his father owned it. His father also owned all of the property in the store.

The question on appeal is whether the information and proof are sufficient to convict the appellant. The appellant says the information should have charged the burglary of Wesley Phillips’ father’s store because it was the father who was the owner. We disagree. The information sufficiently identifies the property and the proof was as alleged. We have considered the cases cited by appellant and say that Mitchell v. State, 317 So.2d 465 (4 DCA 1975) is not on point because there the proof was not as alleged on the information. Smith v. State, 96 Fla. 30, 117 So. 377 (1928), seems to support the appellant but that opinion is sparsely worded and if it does support the appellant it is in conflict with two other Supreme Court cases. Green v. State, 113 Fla. 237, 151 So. 898 (1933) and Addison v. State, 95 Fla. 737, 116 So. 629 (Fla.1928). But see Stewart v. State, 122 So.2d 34 (2 DCA 1960) which, again, seems to support appellant’s contention in a persuasive manner. Then we have Dorsey v. State, 324 So.2d 159 (1 DCA 1975) and Sifford v. State, 202 So.2d 14 (3 DCA 1967) which are against appellant.

It is our opinion the reason for specifically alleging and proving the name of the rightful possessor of the property alleged to have been burglarized is to sufficiently identify the property and to permit proof that the accused entered a place unlawfully against the right of the lawful possessor. The fact that the lawful possessor is the person in charge as in Green, supra, or is the lessor as in Addison, supra, or either owner or lessor as in Dorsey, supra, or custodian as in Sifford, supra, matters not. In fact, Sifford, supra, uses the standard of pleading and proof as proof of “care, use, possession or occupancy.” ' This does not seem to comport with the holding of the Supreme Court in Potter v. State, 91 Fla. 938, 109 So. 91 (1926), where it was held that an allegation of “mere occupancy” is insufficient to charge the crime of burglary. We say that it is sufficient to charge and prove a greater possessory right than the accused in order to convict for the crime of burglary. It is not required that the owner of the property be pleaded and proved. In fact, under Addison, supra, it was held by our Supreme Court to be error to plead the true owner instead of the real party in possession.

Affirmed.

GREEN, OLIVER L., Associate Judge, concurs.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

A petition seeking adjudication of delinquency was filed against appellant, charging him with burglary contrary to Section 810.02(3), Florida Statutes (1975). He was found guilty as charged, adjudicated a delinquent and committed to the Department of Health and Rehabilitative Services.

On appeal appellant contends the trial court erred 1) in denying appellant’s motion to dismiss because the state failed to prove ownership of the building as laid in the petition, and 2) the state failed to prove an essential element of the crime, to-wit intent. I find no merit in the latter contention, but deem the former to warrant discussion.

The petition in question, in pertinent part, charged appellant with unlawfully entering a structure located at 117 Northwest 18th St., Pompano, Broward County, Florida, property of Wesley Phillips, with intent to commit the offense of larceny. The proof showed that the premises entered was a grocery store; that Wesley Phillips was the manager and he ran the store. However, the store was owned by his father. Appellant contends there is a fatal variance between the charge contained in the petition and the proof.

The law in this jurisdiction is clear that under statutes denouncing burglarious entering the allegation of ownership of the building entered is material and must be proved as laid. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Salerno v. State, 347 So.2d 659 (Fla.4th DCA 1977). There also seems to be unanimity of opinion as to the reason for the foregoing rule. As the Supreme Court of Florida said in Davis v. State, 51 Fla. 37, 40 So. 179 (1906):

“The reasons for requiring the ownership of the building the defendant is charged with feloniously and burglariously breaking and entering to be alleged in the indictment are: (1) For the purpose of showing on the record that the building alleged to have been broken into was not the property of the accused, inasmuch as one cannot commit the offense of breaking and entering his own building; (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.” Id., 40 So. at 180.

Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Harper v. State, 169 So.2d 512 (Fla.2nd DCA 1964). But confusion has developed over the years as a result of the misinterpretation of the term “ownership”. Must the ownership be alleged in the fee simple title holder, or a leaseholder, if there be one, or can it be alleged in one holding some lessor interest or right in and to the property? The answer to that rhetorical question is contained in Addison v. State, supra, in which the Supreme Court said:

“ . . The general rule is that, in cases of this kind, the ownership of the building should be laid, not in the holder of the legal title where he is not in possession, but in the actual occupant, the party in the possession and control of the building unless he is a mere servant, [cites omitted] . . . And as stated in section 137, vol. 3, Bishop’s Crim.Prac.:
“ ‘The ownership of the building must be alleged, and without variance proved as laid. But the meaning of ownership varies with the offense. Burglary is not a disturbance to the fee of the place as realty, but to the habitable security. Therefore, in burglary, ownership means any possession which is rightful as against the burglar.’
“Immediately following this, the author continues:
“ ‘Section 138. Under various circumstances, the ownership may be laid equally well in one person or another; as, in the master, or in the servant occupying under him. This is an important consideration, without which many of the cases will appear conflicting. In general, possession and occupancy by the alleged owner are all that are required. While he need not own the fee, he need not even pay rent. “It is enough that it was his actual dwelling house at the time.” Even a possession unlawful as against the person claiming title, but lawful as against the burglar, will suffice. To illustrate:
“ ‘2. Master and Servant. — Where one as mere servant occupies a dwelling house, the ownership is well laid in the master. Or, if the servant is in independent control, it may be laid in him, otherwise not. And it must be, if he pays rent to the master, who retains no authority over the premises.’
“And in 9 C.J. 1044, 1045, it is said:
“ ‘If premises are in the possession and occupancy of a tenant at the time of a burglary, the ownership may be laid in the tenant, and at common law it must be .so laid or there will be a fatal variance.’ ” Id., 116 So. at 630.

Using the foregoing language as a guide and keeping in mind the reason for the allegation and proof of “ownership”, it would certainly appear that the allegation of ownership in a manager of a store, one who runs the store, would be sufficient. Unquestionably, the manager has a posses-sory right of interest therein which is greater than that of the burglar, and proof' thereof should preclude a second prosecution for the same offense. In a recent case, Adirim v. State, 350 So.2d 1082 (Fla.3rd DCA 1977), the court held that proof of “ownership” in a branch manager of the firm which owned the property was sufficient, noting that he is not just an ordinary employee. See also Johnson v. State, 188 So.2d 61 (Fla.3rd DCA 1966), (ownership alleged and proven to be in a real estate saleswoman who held an exclusive listing for sale of the property and who was in actual possession was held sufficient).

The confusion referred to arises as a result of cases such as Stewart v. State, 122 So.2d 34 (Fla.2nd DCA 1960), and Harper v. State, supra. The former held ownership alleged to be in a person who was the night manager of a tavern was not sufficient and the latter case seems to recognize the validity of such holding. I would reject Stewart, supra, as not being in accord with the law as set out by the Supreme Court in Addison, supra.

Finally, I see no real conflict between the rule laid down in Addison, supra, and Smith v. State, supra. The person alleged to be the owner in Smith was merely a yardman who was authorized to open the house occasionally to air it out.

Accordingly, for the foregoing reasons I concur in an affirmance of the judgment appealed from.

      . See, Anderson v. State, 356 So.2d 382, Case No. 77-213, Third District Court of Appeal, opinion issued March 14, 1978, the most recent case dealing with the meaning of “ownership.”