author: COBB, Judge.

text:
    Donnell ROGERS, Petitioner, v. The Honorable Richard B. KEATING, Circuit Court Judge, Ninth Judicial Circuit, Orange County, Florida, Respondent.
    No. 81-1045.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    As Corrected Feb. 23, 1982.
    Rehearing Denied March 11, 1982.
    Joseph W. DuRocher, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for respondent.
   COBB, Judge.

The issue in this case is whether a continuance granted the state for exceptional circumstances during the speedy trial period, but which does not specifically extend the period, operates to extend it. We hold that it does, and therefore deny Rogers’ petition for writ of prohibition.

Rogers was arrested for and charged with two felonies. Thereafter, the court extended the original 180-day speedy trial period 30 days to accommodate the state. Rogers subsequently waived the 180-day period.

Subsequent to the running of 210 days from the date of the arrest, Rogers moved for a speedy trial discharge. This motion was denied on December 10, 1980.- This denial began the running of a new, 90-day speedy trial period. See Fla.R.Crim.P. 3.191(d)(3); Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980); State v. Moss, 395 So.2d 561, 562 (Fla. 5th DCA 1981). The 90 days extended to March 10, 1981. On February 15, 1981, the date set for trial, the state moved to continue the cause on the ground of exceptional circumstance i.e., a necessary state witness was unforeseeably ill. After finding an exceptional circumstance existed, the trial court continued the cause and rescheduled the trial for April 7, 1981, which was beyond the 90-day period. On April 2, 1981, Rogers again moved for discharge on speedy trial grounds, alleging the 90 days had run. The court denied the motion, and Rogers now seeks a writ of prohibition.

We begin our analysis with the speedy trial rule. In relevant part, Florida Rule of Criminal Procedure 3.191(d)(2) provides:

The periods of time established by this Rule may be extended provided the period of time sought to be extended has not expired at the time the extension was procured.

Subsection (d)(2) authorizes a court to extend the speedy trial period, but does not specify how the extension must be accomplished. Subsection (d)(2)(h) simply provides that extension may be procured “by written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances” as defined in Rule 3.191(f). (Emphasis added.) To extend the speedy trial period, Rule 3.191(d)(2) only requires a timely “written or recorded order.” It does not specify the type of order that is qualitatively sufficient to effectuate that extension. We cannot interpret the rule as distinguishing a valid from an invalid order of extension by the presence or absence of the words “... and the speedy trial period is hereby extended.” We therefore hold that where, as here, a continuance is granted for exceptional circumstances during the speedy trial period and the court reschedules trial to a date certain, the speedy trial period is extended to the rescheduled trial date. Under these circumstances, the continuance satisfies Rule 3.191(d)(2).

Rule 3.191(d)(3)(i) does not mandate a different result. It merely requires the trial court to discharge a defendant unless “a time extension has been ordered under (d)(2) and that extension has not expired.” (Emphasis added.) Subsection (d)(3)(i) does not specify how the extension must be accomplished, only that it comply with (d)(2). The issue is whether a given order satisfies (d)(2).

Nor do the cases cited by Rogers require a different conclusion. In Stuart v. State, 360 So.2d 406 (Fla.1978), the trial court did not determine whether the absence of a witness constituted an “exceptional circumstance.” 360 So.2d at 412. Therefore, the discussion concerning the absence of an order of extension is dictum, and not binding upon this court.

Durrance v, Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981), is distinguishable: in Dur-rance, unlike the instant case, no order of extension was entered during the speedy trial period, as required by Rule 3.191(d)(2). Durrance, therefore, did not resolve the issue of whether a continuance for exceptional circumstances granted during the speedy trial period operates to extend the period.

Nor did Mellman v. Rudd, 389 So.2d 706 (Fla. 1st DCA 1980), cert. denied, 399 So.2d 1145 (Fla.1981), decide the issue before this court. The Mellman majority recited the generally-agreed principle that “the time for trial may be extended only by order entered before the expiration of such time.” 389 So.2d at 708. Mellman held that in the absence of an express stipulation, a transactional immunity agreement does not toll the running of the speedy trial period. Mell-man rejected the notion that such an immunity agreement was an exceptional circumstance under Rule 3.191(f). Mellman, therefore, did not concern extension through exceptional circumstance, the issue in this case.

C. S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980), also cited by Rogers, is similarly un-supportive. The C. S. court concluded that an order of continuance, which failed to find that the interest of justice would be served by such extension and which did not recite the reason for such extension, failed to comply with Florida Rule of Juvenile Procedure 8.180(c), and was therefore ineffective to extend the speedy trial period. 390 So.2d at 458. G. S. differs from the present ease in that Rule 8.180(c) specifically required such findings to be made before speedy trial could be extended which, in C. S., the trial court failed to do. In the present case, Rule 3.191 does not specifically require a trial court to state “. .. and the speedy trial period is hereby extended” in order to effectuate an order of extension. For similar reasons, M. B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980), does not support Rogers’ position: “[T]he judge did not comply with rule 8.180(c) as he failed to enter an order reciting the reasons for the extension.” 388 So.2d at 1365.

In M. M. v. State, 407 So.2d 262 (Fla. 3d DCA Dec. 8,1981), also cited by Rogers, the trial court orally granted a continuance, but did not specifically extend the speedy trial period. A written order reflecting the continuance was entered eight days after the speedy trial period had run. Citing J. R. S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979), the M. M. court stated “there can be no extension of the speedy trial period without the entry of an order of extension,” and then found the court’s order deficient since it did not specifically extend the speedy trial period. 407 So.2d at 263. J. R. S., however, did not hold that an order of continuance which met all other requirements of Rule 8.180(c) would not extend the speedy trial period. Furthermore, the reason for the continuance in M. M. does not appear in the opinion. We therefore decline to adopt M. M.’s rational in the present case where the continuance was timely granted and the trial rescheduled for exceptional circumstances.

Finally, State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977), cited by Rogers, is unavailing, for in the words of Judge Mills, writing for the court: “When Smith filed his motion for discharge no time extension had been ordered by the respondent as provided in § (d)(2).” 347 So.2d at 815. As previously stated, the continuance in the present case was granted during the speedy trial period.

We find it unnecessary under these facts to consider the proposition advanced in State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980), that a state continuance per se abrogates the 180-day rule, and whether or not that dictum conflicts with the waiver theory of State ex rel Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Rogers’ petition for writ of prohibition is

DENIED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Rule 3.191(f) permits the court to extend the speedy trial period “where exceptional circumstances are shown to exist.”

      . The fact that the state attorney was not requesting an extension is of no moment. For exceptional circumstances, the court can extend the speedy trial period on its own motion. See Fla.R.Crim.P. 3.191(d)(2)(ii).

      . “[T]he only written order entered by the trial court prior to petitioner’s motion for discharge granted [his] request for bond....” (Emphasis added.) 398 So.2d at 1015. After Dur-rance’s motion for speedy trial discharge, the trial court entered an order which stated the continuance therein had been granted for exceptional circumstances. The Durrance court concluded that “a court cannot retroactively hold its earlier continuance was for ‘exceptional circumstances’ after the speedy trial time has run to avoid the speedy trial limits.” (Emphasis added.) 398 So.2d at 1015. We agree with this statement of law. However, the Dur-rance court went on to say that “a continuance alone does not toll the speedy trial time.” (Emphasis added.) 398 So.2d at 1016. “What is required is an order entered before the time limit expires, specifically extending or tolling the speedy trial requirements.” (Emphasis in original.) Id. In the present case, the continuance was granted before the speedy trial period ran and was granted specifically upon the finding of an exceptional circumstance. This was not the factual setting of Durrance, and we therefore decline to apply its reasoning to this case.

      . The Mellman majority went beyond its holding to state: “Even if we were to hold the execution of such a contract [an immunity agreement] is an exceptional circumstance, subsection (d)(2)(h) may not be relied upon to justify an extension of trial time because the state failed to move for an order extending the time before it bad expired.” (Emphasis added.) 389 So.2d at 708. Even if the above had been the holding in Mellman, the present case would be distinguished because the state herein sought an order of extension before speedy trial had expired, i.e., the continuance for exceptional circumstance.

      . Rule 8.180(c), which has been redesignated as the current rule 8.180(d), provided:
      The court may extend the period of time established by this order on motion of any party, after hearing, on a finding that the interests of justice will be served by such extension. The order will recite the reasons for such extension. General congestion of the court’s docket, lack of diligent preparation, or failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute grounds for such extension.

      .The J. R. S. court framed the issue as “whether an oral continuance on the court’s own motion serves to extend the time for speedy trial.” The court then said, “Under the circumstances of this case, we conclude that it does not.” 374 So.2d at 560. The court found that contrary to Rule 8.180(c), no order had been entered, nor had either party moved for an extension, nor had the court made any finding that would justify extension. The court went on to opine that “[W]e do not believe that a mere order of continuance by the trial court constitutes an indefinite open-ended extension of speedy trial time.” Id.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Benoit VERREAUTT, Appellant, v. The STATE of Florida, Appellee.
    No. 80-961.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied April 5, 1982.
    Joseph Nazzaro, Golden Beach, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Verreautt was charged with and convicted of an offense punishable by imprisonment for life, robbery while carrying a firearm. § 812.13(2)(a), Fla.Stat. (1979). He correctly claims that by virtue of the charge, he was entitled to ten peremptory challenges during the selection of the jury. Fla.R.Crim.P. 3.350(a). But while the trial court mistakenly limited Verreautt to six peremptory challenges, Verreautt made no assertion that he was entitled to more until well after the verdict was returned and judgment pronounced. Compare Newsome v. State, 355 So.2d 483 (Fla. 2d DCA 1978); Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976). The error was such that had it been timely called to the attention of the trial court, it could have been immediately cor-reeted. Verreautt’s failure to timely object to the limitation imposed precludes him from relief on appeal. Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981). The other grounds for reversal raised by Verreautt are totally without merit.

Affirmed.

      . Verreautt’s earlier assertion that he was entitled to an additional peremptory challenge arose from his counsel’s belief that he had exercised five peremptories although entitled to six, while the clerk’s records showed he had exercised six. There is no indication that the clerk was wrong and, moreover, no showing that the defendant wanted to excuse a particular juror. See Young v. State, 234 So.2d 341 (Fla.1970).

      . Since Verreautt accepted the limitation without complaint, we do not reach the issue whether he was prejudiced by the ruling where he exercised the six peremptories given. Compare Meade v. State, 85 So.2d 613 (Fla.1956); Newsome v. State, supra; and Bell v. State, supra, with Harris v. State, 349 So.2d 854 (Fla. 2d DCA 1977).


text:
    William HARPER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-570.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied April 5, 1982.
    Pilafian & Schaffer and Melvin Schaffer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

William Harper, described as a nonviolent person by his friends and his employer who testified at his trial, was convicted of second degree murder. He should not have been, because the State’s evidence (1) was legally insufficient to show that the act allegedly causing the victim’s death was one which “evinced a depraved mind regardless of human life,” and (2) essentially established rather than rebutted Harper’s assertion that his act was a justifiable use of force, i.e., self defense. We agree that his motion for judgment of acquittal, made at the close of the State’s case, and renewed at the close of all of the evidence, should have been granted.

On Friday evening Harper was at Sutton’s grocery store where he purchased a beer. One Courtney (apparently drunk at the time) asked Harper to buy him a beer. When Harper refused, Courtney shoved him and left stating, “I’m going to blow you up.” A few minutes later Courtney returned with Smith (the victim) the latter carrying a stick the size of a chair or table leg. As the two men approached Harper, Smith raised the stick to shoulder height and stated to Harper, “You want this? Here it is.” Harper, in fear that the two men intended to do him bodily harm in furtherance of the threat by Courtney, reached out, grabbed the up-raised stick, and brought it down on Smith’s head. Smith was knocked down but stood up immediately, with no apparent wound or bleeding, and the incident was apparently over. The next day, a Saturday, Smith (who was known to be a very heavy drinker) was observed at various times throughout the day drinking alcoholic beverages. The following day Smith died. Whether his death was due to the blow from the stick was somewhat inconclusive. The coroner testified that there was evidence of only one blow to the victim’s head, there were no open wounds or cuts and no evidence of external bleeding, and that Smith was an alcoholic with a diseased liver condition who could have died without being struck on the head, either as a result of hypertension, or high blood pressure or subdural hematoma. The most damaging evidence against Harper was the statement he gave the police in which, while stating that he was in fear that Smith and Courtney intended him bodily harm, he admitted that other than Smith stating, “You want this? Here it is,” Smith uttered no other threats nor did he swing the stick nor make any violent motions. Harper testified to essentially the above facts, adding that he did not strike Smith in anger or with any desire or intention to kill him, and had acted solely in self defense out of fear of bodily injury to himself and that his motion in grabbing the stick which Smith held and striking Smith with it was defensive and was not done with sufficient force to cause any bleeding or cut or wound on the victim’s head.

Reiterating the pronouncement in the initial paragraph of this opinion, the evidence was legally insufficient to show that Harper acted with a depraved mind regardless of human life, an indispensable element of the crime of second degree murder. See, Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Raneri v. State, 256 So.2d 291 (Fla. 1st DCA 1971). Although in both the Pierce case, supra, and the Martinez case, supra, the evidence was held sufficient to create a jury issue as to whether the accused had used excessive force (thus warranting a conclusion that the evidence would at least sustain a conviction of manslaughter), we conclude that in the instant ease the evidence not only failed to sufficiently rebut Harper’s claim of self defense so as to create a jury issue, but in fact essentially corroborated Harper’s position. The State having failed in its burden of presenting evidence legally sufficient to contradict Harper’s explanation of self defense Harper’s version cannot be ignored, and his motion for judgment of acquittal should have been granted. State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980); Neveils v. State, 145 So.2d 883 (Fla. 1st DCA 1962).

For instructive purposes we comment on Harper’s second point. During the State’s closing argument, the prosecutor stated:

In the bible it says to take a life is to take mankind and to save a life is to save mankind and all [Harper] did was kill a wino and he is sorry and so is [Smith’s] wife and three children. They are sorry too.

Defense counsel objected and moved for a curative instruction. In response, the court, without directly ruling on the objection or the motion, stated (presumably in the presence and for the benefit of the jury):

The jury heard the testimony from the witness stand and I previously advised them on arguments by counsel. I am sure they recall that.

The prosecutor’s argument was an improper appeal to the jury for sympathy for the [supposed] wife and children of the victim, the natural effect of which would be an adverse emotional feeling toward the defendant. It is the responsibility of the prosecutor to seek justice, not merely to convict. That responsibility will be more nearly met when the jury is permitted to reach a verdict on the merits without counsel indulging in appeals to sympathy, bias, passion or prejudice. An admonition on this subject was given in the case of Breniser v. State, 267 So.2d 23 (Fla. 4th DCA 1972) wherein the court stated, at page 25:

[T]he real thrust of appellant’s point here is the prosecutor’s misconduct in appealing to the sympathy of the jury. Such is indeed improper, and while prosecutors should be commended for handling their duties with zeal, they would profit greatly by giving careful heed to the admonitions and restraints set forth in the numerous time-honored cases cited and discussed by Mr. Justice Drew in Grant v. State, Fla.1967, 194 So.2d 612, some of which are also cited and discussed by Judge Mann in Chavez v. State, Fla.App. 1968, 215 So.2d 750.

A judge is charged with the responsibility of maintaining order and decorum in proceedings before the court. That responsibility includes the duty to restrain counsel in the use of improper argument. Blanco v. State, 150 Fla. 98, 7 So.2d 333 (1942). In the latter case the court quoted the following from Deas v. State, 119 Fla. 839, 161 So. 729 (Fla.1935):

When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state’s counsel in the prosecution of a criminal case, or where a prosecuting attorney’s argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments, (e.s.)

When counsel objects to improper argument and moves for a curative instruction, the trial judge should be firm and decisive in discharging his duty. Seldom will that be adequately done simply by reminding the jury that “.. . argument of counsel is not to be considered as evidence,” or words to like effect.

The judgment and sentence are severally reversed and this cause remanded with instructions that William Harper be discharged forthwith.

REVERSED AND REMANDED.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Sebastian Americo CORON, Appellee.
    No. 81-598.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied April 13, 1982.

      Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Neil M. Nameroff, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

Finding no illegality in defendant’s arrest, we reverse the trial court’s order suppressing evidence obtained as a result of the arrest. Defendant contends that his war-rantless arrest for loitering and prowling was illegal because the offense was not committed in the presence of Detective Edgerton, the officer who formally placed defendant Coron under arrest. We reject defendant’s contention because the arrest was effected by the first officer on the scene, Officer Llano-Montes.

Officer Llano-Montes, responding to a call regarding a shooting shortly after midnight, noticed a car with flashing headlights. When he stopped to inquire, the driver told him that he had seen a man run from an area next to the house where the shooting ' had occurred. Officer Llano-Montes approached Coron, who appeared to be staggering. The officer observed dried grass in Coron’s hair and on his back. Co-ron’s shoes were wet, although no rain had fallen; his speech was slurred and his face was flushed. When asked what he was doing in the area, Coron gave several conflicting answers, first stating that he was in the area to see his girlfriend, then responding that he didn’t know where she lived. He next said that he was looking for a cab because his car had broken down and his girlfriend would not drive him home.

Officer Llano-Montes took defendant Co-ron into custody, instructed him that he was not free to leave, handcuffed him, and placed him in the patrol car. He subsequently advised Coron of his rights.

Although Officer Llano-Montes did not announce, “You are under arrest,” his conduct clearly informed Coron that he was, in fact, under arrest. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980) (en banc), review denied, 397 So.2d 779 (Fla.), cert. granted, U.S. -, 102 S.Ct. 631, 70 L.Ed.2d 612 (1981).

Turning to the substance of the charge, we find that the arrest for loitering and prowling, predicated upon circumstances which were more than sufficient to cause a reasonable person to be concerned for his safety or the safety of property in the vicinity, State v. Ecker, 311 So.2d 104 (Fla.), cert. denied sub nom. Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), was valid. In Ecker, the Supreme Court of Florida, discussing Bell’s conviction, stated:

When the officer came in response to a call, he saw the defendant jump from the fence surrounding the dwelling and start running. The officer apprehended the defendant and placed him under arrest. ... The defendant’s hiding on private property behind a bush at 1:20 in the morning would cause a reasonable person to be concerned for his safety or the safety of property in the vicinity.

Id. at 110. The facts under review presented even greater cause for concern.

We also reject defendant’s contention that Detective Edgerton lacked probable cause to arrest him for burglary and second-degree murder. Testimony established that when Detective Edgerton investigated a report that a burglar had been shot, he learned from Officer Llano-Montes that eyewitnesses saw defendant run from an area next to the burglarized house immediately after the shots were fired. Although the victim, who had shot the intruder, furnished a description dissimilar to defendant Coron’s appearance, the victim’s son-in-law identified the defendant as the man who had run from the house. The detective’s investigation revealed that spotlights fourteen feet from the ground had been removed, suggesting that two people were involved; that broken glass remained in one of the spotlight sockets; and that defendant’s hands were cut. In addition, the deceased’s vehicle was discovered parked nearby. Following a conversation with Coron during which he gave still another reason for his presence, Detective Edgerton placed Coron under arrest. From these facts we conclude that probable cause existed for Coron’s arrest for burglary and second-degree murder.

Because we hold that defendant’s arrest was sustainable both for loitering and prowling and for the felonies of burglary and second-degree murder, we reverse the order entered by the trial court suppressing fingerprints taken pursuant to the arrest.

Reversed and remanded.

      . Section 856.021, Florida Statutes (1979): 856.021 Loitering or prowling; penalty
      (1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity..
      (2) Among the circumstances which may be considered in determining • whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
      (3)Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.

      . When questioned concerning his presence in the vicinity, defendant Coron appeared to be intoxicated. The trial court’s suppression of his statements on that ground is not challenged.

      . The victim of the burglary, Mr. Guitierrez, shot and killed Coron’s accomplice. The second-degree murder charge against Coron was based on felony-murder, that is, on the occurrence of the homicide during the commission of the burglary.


author: PER CURIAM.

text:
    Gustavo CALVO and Mirta Calvo, Appellants, v. Raquel Hernandez LLINAS, Appellee.
    No. 80-1508.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 7, 1982.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and W. Sam Holland, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Robert Schack, Miami, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

We have considered the points raised in the appellants’ brief, see 3 Fla.Jur.2d Appellate Review §§ 199, 202 (1978), in the light of the record and arguments of counsel and find that no reversible error has been demonstrated.

Affirmed.


author: SCHWARTZ, Judge. BASKIN, Judge

text:
    Charles Thomas TANNER, Personal Representative of the Estate of Emma Tanner Childrey, deceased, Appellant, v. Kenneth B. ROBINSON, Appellee.
    No. 80-1571.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Hendricks & Hendricks and Ben E. Hendricks, Jr., Miami, for appellant.
    Shutts & Bowen and Phillip G. Newcomm and Gregory P. Borgognoni, Miami, for ap-pellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Emma Tanner Childrey and her nephew, Kenneth B. Robinson, holders of individual accounts at the stock brokerage firm of Shearson Haydon Stone, Inc., opened an additional joint account with rights of sur-vivorship. A few months later, Mrs. Chil-drey opened another individual account with a Ft. Lauderdale brokerage firm and executed a broad power of attorney, naming Robinson as her agent and attorney-in-fact. Mrs. Childrey and Robinson also opened still another joint account at the Ft. Lauderdale brokerage firm when it merged with Shearson Haydon Stone.

When Mrs. Childrey became critically ill, Robinson sent a letter to the broker requesting a transfer of the contents to their joint account. It did so. After her death, her personal representative sued to recover the securities then in appellee’s possession, asserting, in part, that the transfer had been accomplished through undue influence. The trial court disagreed and entered judgment for Robinson. It referred in support of the result to a letter sent by Mrs. Chil-drey to the brokerage firm a few months before Robinson’s letter arrived. Although the letter could not be located at time of trial, the testimony showed that it contained a direction by the decedent to transfer her individually held stock to the joint account. The court concluded that the letter had evinced Mrs. Childrey’s intent to make a gift to Robinson although the formal transfer did not occur until his own letter arrived at the brokerage firm.

We affirm the judgment below on somewhat different grounds than those assigned by the trial court. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Gatto v. Publix Supermarket, Inc., 387 So.2d 377, 380 at n.4 (Fla. 3d DCA 1980).

Although we place no reliance on the power of attorney to sustain the transfer of Mrs. Childrey’s individually held stock to the appellee, we hold that her “missing” letter was alone and independently sufficient to convey the stock to Robinson on the rationale that her mailing it to the brokerage firm constituted a constructive or symbolic delivery of the stock in her individual account and thus completed a valid common law gift of those securities. Reynolds v. Maust, 142 Pa.Super. 109, 15 A.2d 853 (1940); 28 Fla.Jur.2d Gifts §§ 14-15 (1981), and cases cited; compare Dodson v. National Title Ins. Co., 159 Fla. 371, 31 So.2d 402 (1947) (letter of instruction to escrow holder insufficient to effect gift of escrow where holder continued to recognize authority of original owner after receipt of letter, and, unlike present case, letter contained no words of intent to make gift). It does not matter — as the trial judge appears to have believed — that the letter did not result in a “delivery” of the stock as provided under Secs. 678.309, 678.-313(1), 678.320(1), Fla.Stat. (1979). It seems universally to be held that these provisions of the U.C.C. are not exclusive and do not undercut the validity of a gift of securities which is otherwise effective under common law standards. In Estate of Zaharion v. Security National Bank, 95 Mich.App. 70, 290 N.W.2d 84 (1980), the court said:

Specifically, we are asked to determine whether M.C.L. § 440.8309 ... is applicable to gratuitous inter vivos transfers of securities, thereby necessitating actual physical delivery of the stock certificates, or whether the aforementioned provision is inapposite to the case at bar. If so, then under the common law rule relating to inter vivos gifts, either actual or constructive delivery of the shares would suffice to effect a completed gift, assuming that the remaining elements of a gift inter vivos are present.
We conclude that the common law rules relative to such transfers remain undisturbed by M.C.L. § 440.8309. As such, we hold that an inter vivos transfer by gift of any interest in securities is accomplished by either actual or constructive delivery of the same, where donative intent is also present, and where acceptance by the donee may be presumed or is proven directly. . . .

290 N.W.2d at 85. Accord, Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); see, Fidelity & Casualty Co. of New York v. Key Biscayne Bank, 501 F.2d 1322 (5th Cir. 1974); see also, In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973).

Affirmed.

BASKIN, Judge

(specially concurring).

Although I agree that affirmance is appropriate, I strongly disagree with the majority’s reliance on Mrs. Childrey’s missing letter as the foundation for decision. Her letter cannot be considered a gift of securities under either the U.C.C. or common law because elements necessary to show delivery are absent.

Mrs. Childrey’s letter did not constitute a gift under the U.C.C. because sections 678.-309, 678.313(1), and 678.320(1), Florida Statutes (1979) require that appropriate entries be made in the corporate books, and it is clear those entries were not made following the firm’s receipt of her letter.

Mrs. Childrey’s letter did not establish a gift under common law either. Common law also requires delivery before a gift is valid. Mrs. Childrey’s absent letter was inadequate to establish a gift under common law because Mrs. Childrey maintained her joint interest in the account. Without a surrender of her dominion and control, Kuebler v. Kuebler, 131 So.2d 211 (Fla. 2d DCA 1961); Eulette v. Merrill Lynch, Pierce, Fenner, & Beane, 101 So.2d 603 (Fla. 3d DCA 1958), divestiture or delivery could not occur. Cf. Crossman v. Naphtali, 160 Fla. 148, 33 So.2d 726 (1948) (no gift of savings account); Dodson v. National Title Insurance Co., 159 Fla. 371, 31 So.2d 402 (1947) (no gift of escrowed deed); Webster v. St. Petersburg Federal Savings & Loan Association, 155 Fla. 412, 20 So.2d 400 (1945) (no gift of retained certificates). The absence of proof of donative intent, delivery, and acceptance precludes a finding of common law gift. Lowry v. Florida National Bank of Jacksonville, 42 So.2d 368 (Fla.1949); Wood v. McClellan, 247 So.2d 77 (Fla. 1st DCA 1971).

It is therefore apparent that the question answered by the majority, that is, whether a common law inter vivos gift of securities may be established when U.C.C. requirements have not been met, is not ripe for decision in this lawsuit because even under common law, no delivery occurred. In the majority’s eagerness to extend the rule announced in Estate of Zaharion v. Security National Bank, 95 Mich.App. 70, 290 N.W.2d 84 (1980) to Florida, it has overlooked the fact that the making of a gift involves a relinquishment of ownership. Mrs. Childrey’s letter merely adds Robinson to the account but does not relinquish her interest. Considered by itself, it does not constitute a gift.

A transfer did take place, however, in response to Kenneth Robinson’s letter. See Maxcy v. Commissioner of Internal Revenue, 441 F.2d 192 (5th Cir. 1971). An examination of the power of attorney, when read in conjunction with Mrs. Childrey’s letter, reveals that it conferred powers sufficient to permit Kenneth Robinson to make a gift to himself.

In determining the authority conferred upon the agent by the terms of the writing expressing it, not merely that writing itself, but letters of the principal to the agent with reference to the execution of the business confided to the agent’s care are to be considered, and this whether such letters amount to a modification of the agreement or the conferring of new and additional powers.

2A C.J.S. Agency § 151(c) (1972). Testimony established that in her letter to the stock brokerage firm, Mrs. Childrey sought to transfer stock into the account she held jointly with Kenneth Robinson. That testimony supports the trial court’s conclusion that Mrs. Childrey intended to transfer the stock and supplies the aid in construing the power of attorney which was absent in Hodges v. Surratt, 366 So.2d 768 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 76 (Fla. 1979) and Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977).

The trial court correctly held that Kenneth Robinson’s letter transferring Mrs. Childrey’s stock to his individual account was within the authority conferred by the power of attorney. On this basis alone, I agree to affirm the judgment entered by the trial court.

      . The document stated in part:
      FULL TRADING AUTHORIZATION WITH PRIVILEGE TO WITHDRAW MONEY AND/OR SECURITIES
      GENTLEMEN:
      THE UNDERSIGNED HEREBY AUTHORIZES KEN ROBINSON (WHOSE SIGNATURE APPEARS BELOW) AS HIS AGENT AND ATTORNEY IN FACT TO BUY, SELL (INCLUDING SHORT SALES) AND TRADE IN STOCKS, BONDS, OPTIONS AND ANY OTHER SECURITIES AND/OR COMMODITIES AND/OR CONTRACTS RELATING TO THE SAME ON MARGIN OR OTHERWISE IN ACCORDANCE WITH YOUR TERMS AND CONDITIONS FOR THE UNDERSIGNED’S ACCOUNT AND RISK AND IN THE UNDERSIGNED’S NAME OR NUMBER ON YOUR BOOKS. THE UNDERSIGNED HEREBY AGREES TO INDEMNIFY AND HOLD YOU HARMLESS FROM AND TO PAY YOU PROMPTLY ON DEMAND ANY AND ALL LOSSED [sic] ARISING THEREFROM OR DEBIT BALANCE DUE THEREON.
      YOU ARE AUTHORIZED TO FOLLOW THE INSTRUCTIONS OF KEN ROBINSON IN EVERY RESPECT CONCERNING THE UNDERSIGNED’S ACCOUNT WITH YOU, AND MAKE DELIVERIES OF SECURITIES AND PAYMENT OF MONEYS TO HIM OR AS HE MAY ORDER AND DIRECT. IN ALL MATTERS AND THINGS NECESSARY OR
      INCIDENTAL TO THE FURTHERANCE OR CONDUCT OF THE ACCOUNT OF THE UNDERSIGNED, THE AFORESAID AGENT AND ATTORNEY IN FACT IS AUTHORIZED TO ACT FOR THE UNDERSIGNED AND IN THE UNDERSIGNED’S BEHALF IN THE SAME MANNER AND WITH THE SAME FORCE AND EFFECT AS THE UNDERSIGNED MIGHT OR COULD DO.

      . This is because, as was held in Hodges v. Surratt, 366 So.2d 768 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 76 (Fla. 1979) and Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977), such a power does not confer authority to transfer the principal’s property to the agent himself.
      Moreover, one may not read that authority into the power’s unambiguously contrary terms by reference to an entirely separate document, the decedent’s letter to her broker. The text which may be cited for that proposition states only that the agent’s authority is to be determined by considering “not merely [the power] itself, but letters of the principal to the agent [e.s.] with reference to the ... business confided to the agent’s care. ...” 2A C.J.S. Agency § 151(c) (1972). Since the letter in question was not to the agent, Robinson, but to a third party, this principle simply does not apply here.

      . Sec. 678.309, Florida Statutes (1979) provides:
      An indorsement of a security whether special or in blank does not constitute a transfer until delivery of the security on which it appears or if the indorsement is on a separate document until delivery of both the document and the security.
      Delivery to a purchaser occurs, according to Sec. 678.313(1), when:
      (a)He or a person designated by him acquires possession of a security; or

      (c) His broker sends him confirmation of the purchase and also by book entry or otherwise identifies a specific security in the broker’s possession as belonging to the purchaser; or

      (e) Appropriate entries on the books of a clearing corporation are made under s. 678.-320.
      Sec. 678.320(1) states:
      (1) If a security:
      (a) Is in the custody of a clearing corporation or of a custodian bank or a nominee of either subject to the instructions of the clearing corporation; and
      (b) Is in bearer form or indorsed in blank by an appropriate person or registered in the name of the clearing corporation or custodian bank or a nominee of either; and
      (c) Is shown on the account of a transferor or pledgor on the books of the clearing corporation;
      then, in addition to other methods, a transfer or pledge of the security or any interest therein may be effected by the making of appropriate entries on the books of the clearing corporation reducing the account of the transferor or pledgor and increasing the account of the transferee or pledgee by the amount of the obligation or the number of shares or rights transferred or pledged.

      . Identical to § 678.309, Fla.Stat. (1979).

      . Florida courts have not decided whether the U.C.C. supplants common law pertaining to the inter vivos gift of securities. The holding described by the majority as “universal” appears to be supported solely by the Michigan appellate court in Estate of Zaharion v. Security National Bank, supra.

      . If Mrs. Childrey’s letter fell within the definition of hearsay, section 90.801(l)(c), Florida Statutes (1979), it would have been admissible as a statement against her interest. § 90.-804(2)(c), Fla.Stat. (1979). However, its use as an expression of her intent rather than as a transfer of the stock precludes the objection on that ground. § 90.803(3)(a)(l), Fla.Stat. (1979).


author: NESBITT, Judge.

text:
    Carol Caidin POLISHUK, Appellant, v. Stanley CAIDIN, Appellee.
    No. 80-1997.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 5, 1982.
    Simon, Schindler & Hurst and Judith A. Bass, Miami, for appellant.
    Greenfield & Duval, North Miami, and Abraham Eckstein, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

This is an appeal from a final judgment specifically enforcing an oral land sale contract in favor of the former husband against his ex-wife. We find that the husband failed to either plead or establish his cause of action and, therefore, we reverse.

Following a dissolution of marriage, the husband and wife were left as tenants in common of separate parcels of real estate. The wife filed a complaint for partition of the properties. They then entered into negotiations culminating in a written contract for the husband to convey his interest in the Montclair Apartments to the wife. Although negotiations were entered into regarding another parcel, the Orange Bowl property, no agreement was reached. Consequently, the Orange Bowl property was excluded from the contract of sale. After the sale was consummated, the husband filed an answer to the suit for partition and counterclaimed for specific performance. He alleged that an oral contract was entered into whereby the wife agreed to convey to the husband her interest in the Orange Bowl property, as part of the consideration for conveyance to the wife of the husband’s interest in the Montclair Apartments. In response to the wife’s affirmative defense of the Statute of Frauds, § 689.01, Fla.Stat. (1979), the husband argues that the closing on the Montclair Apartments constituted partial performance of a transaction involving the two properties, thereby taking the contract out of the Statute of Frauds. Prior to trial, the wife took a voluntary dismissal of her suit for partition. After a final evidentiary hearing, the husband succeeded on his counterclaim and it was decreed that the wife execute a quitclaim deed to the husband for the Orange Bowl property. It is from this order that the wife appeals.

The husband did not plead or establish a cause of action for specific performance based on the doctrine of part performance. In Avery v. Marine Bank & Trust Company, 216 So.2d 251 (Fla.2d DCA 1968), the court stated:

[TJhere must always be the indispensable element of possession of the premises on the part of the impending grantee.... Possession is the one common denominator in all the eases. If there is no possession given, the oral contract to convey is not enforceable, regardless of the other considerations aforesaid, [emphasis supplied]

See also, Gable v. Miller, 104 So.2d 358 (Fla.1958). Because possession was neither alleged nor proven, the husband’s claim must fail. By specifically mentioning the element of possession, we do not intend to hold that the plaintiff satisfied the other elements necessary to bring his case within the exception to the Statute of Frauds. See generally, Avery v. Marine Bank & Trust Company, supra; 29A Fla.Jur. Specific Performance §§ 27-30 (1967).

The husband attempts to support the judgment appealed from by arguing that the Statute of Frauds may not be used as both a sword and a shield. See W.B.D., Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980). We do not find that rule to be applicable to the present case. When the husband conveyed his interest in the Montclair Apartments to his former wife, he did so pursuant to an express written contract which contained no reference to the Orange Bowl property. Since the benefit which accrued to the wife was solely from the written contract, she is not barred from raising the Statute of Frauds as a defense to the alleged oral contract.

For the foregoing reasons, the judgment appealed from is reversed.


author: FERGUSON, Judge.

text:
    Elisa A. WILLIS, a minor by and through her father and next friend Wendell Willis, Sr., and Wendell Willis, Sr., individually, Appellants, v. DADE COUNTY SCHOOL BOARD, Appellee.
    No. 81-335.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Alldredge & Gray and James H. Gray, Jr., Miami, for appellants.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy F. Schleifer, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant Elisa Willis sued Dade County School Board for damages pursuant to Section 768.28, Florida Statutes (1979) waiving sovereign immunity in tort actions. In her amended complaint, Willis contends that a physical education teacher employed by the county maliciously assaulted and battered her during regular school hours and caused her injury. The trial court dismissed with prejudice Willis’ amended complaint for failure to state a cause of action. We affirm in part and reverse in part.

We find no error in the determination of the trial court with respect to Count I that a complaint which alleges a “malicious” assault and battery fails to state a cause of action pursuant to Section 768.28, Florida Statutes (1979). District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980) (state immune from suit when state employee did not act within scope of employment or acted in bad faith or with malicious purpose).

We find, however, that the trial court erred in dismissing with prejudice Count III of the amended complaint on the sole ground that the doctrine of sovereign immunity bars a cause of action against the school board for the negligent hiring or retention of the teacher. We reject appel-lee’s argument that the actual hiring of a teacher is a planning function for which the county is immune from suit, rather than an operational function for which the county may be subject to liability. See, e.g., Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Though the creation of a teaching position is a planning function, the actual filling of that position is operational. Cf. Hollis v. School Board of Leon County, 384 So.2d 661 (Fla. 1st DCA 1980) (creation of plans to provide safe transportation was discretionary but implementation of plans was operational).

We hold, therefore, that the dismissal with prejudice of Count III of appellant’s amended complaint was error.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . In order to state a cause of action for the tort of negligent hiring or retention recognized in Florida, see Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla.2d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980); Petrik v. New Hampshire Insurance Co., 379 So.2d 1287 (Fla. 1st DCA 1979), cert. denied, 400 So.2d 8 (Fla.1981), a plaintiff must allege facts showing that the employer was put on notice of the harmful propensities of the employee, see Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla.2d DCA 1980), rev. denied, 392 So.2d 1374 (Fla.1981); DeJesus v. Jefferson Stores, Inc., 383 So.2d 274 (Fla.3d DCA 1980); Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla.3d DCA 1980). We do not address this issue however, because it was neither considered below nor raised on appeal.


text:
    Jane Marie ROSS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-353.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 5, 1982.
    Stanley M. Goldstein, Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen. and Joseph Corey, Legal Intern, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Jane Ross was convicted of bringing marijuana into the State of Florida and possession of marijuana. The marijuana was found in the false bottom of Ross’ suitcase during a search conducted by United States Customs Inspectors in the Customs area of the Miami International Airport upon Ross’ arrival on a flight from Jamaica. Ross argues on appeal that she was entitled to the entry of a judgment of acquittal on the ground that the State failed to prove that the offenses were committed within this state. This argument is bottomed on Ross’ contention that the marijuana was found and seized in, and therefore imported into and possessed in, an area which she contends is within the exclusive jurisdiction of the Federal Government.

A person is subject to prosecution in this state for an offense committed wholly or partly within the state. § 910.-005(l)(a), Fla.Stat. (1979); Lane v. State, 388 So.2d 1022 (Fla.1980). If either the conduct that is an element of the offense or the result that is an element occurs within the state, the offense is deemed committed partly within this state. § 910.005(2), Fla. Stat. (1979). It is indisputable, and Ross does not claim otherwise, that the Miami International Airport lies within the territorial boundaries of the State of Florida, see Sections 6.081 and 6.09, Florida Statutes (1979), and the State proved that the offenses, at least in part, occurred there. Despite this proof, Ross’ argument would have merit if, additionally, it had been indisputably established that the Customs area within the airport was property acquired by the United States from the State of Florida and that the United States had by separate act accepted exclusive jurisdiction over the acquired property. See 1958 Op. Atty.Gen. Fla. 058-309 (November 20, 1958). But no such evidence appears in this record.

Thus, Ross is left with the claim that it was the prosecution’s burden to show not merely that the offense occurred within the territorial boundaries of this state, but that the Customs area was not ceded to and acquired by the United States; or if the area was the property of the United States, that the United States had not obtained exclusive jurisdiction over it.

There is, in our view, no such burden upon the prosecution, notwithstanding that proof of jurisdiction is an essential element of the offense. Cf. State v. Davis, 203 So.2d 160 (Fla.1967) (in recidivist proceeding, State’s burden to prove prior valid conviction was discharged when record of conviction was offered in evidence; defendant’s burden to establish that presumptively valid conviction was invalid because obtained without counsel). The prosecution’s burden to prove that an essential element of the crime was committed within this state was discharged here by proof that Ross possessed the narcotics at the Miami International Airport in Dade County within the territorial boundaries of Florida. It is the defendant’s burden to show that an area or building within this state is without the jurisdiction of Florida by reason of cession and the acceptance of exclusive jurisdiction by the United States. See Hobbs v. Cochran, 143 So.2d 481 (Fla.1962) (wherein court implicitly placed burden on defendant by approving finding that state court had jurisdiction over crime, “[njothing having been shown that civilian authority over, the area had been ceded.”). Ross made no effort to meet that burden.

Alternatively, we adopt the ruling of the trial court that, even if, arguendo, the Customs area of the Miami International Airport were an enclave subject to exclusive Federal jurisdiction, a jury could reasonably conclude from the prosecution’s proof that Ross constructively possessed the marijuana in this State, and brought it into this state, at the time the plane landed and until the time her luggage arrived in the Customs area.

We have examined Ross’ other point on appeal and find it to be equally without merit, but requiring no discussion.

Affirmed.

      . Article I, Section 8, clause 17, of the United States Constitution empowers the United States to acquire lands from the states for certain specified uses, namely forts, magazines, arsenals, dock-yards and other needful buildings. Sections 6.04 and 6.05, Florida Statutes (1979), provide the procedure by which the State of Florida cedes lands to the United States.

      . Article I, Section 8, clause 17, of the United States Constitution empowers the United States to exercise jurisdiction over lands acquired from states with the State’s consent. Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930). The procedure by which the United States exercises exclusive or partial jurisdiction is found in Title 40, United States Code, Section 255, which in pertinent part provides:
      “Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereañer to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.” (emphasis supplied).
      Section 6.04, Florida Statutes (1979), provides that the Governor may cede jurisdiction to the Federal Government “upon application made to him in writing on behalf of the United States for that purpose, accompanied by the proper evidence of said reservation, purchase, contract or acquisition of record ... . ”

      .In this opinion, the Attorney General expressed the view that Florida, under a reserved right contained in Section 264.08, Florida Statutes, had jurisdiction to prosecute for offenses committed in Everglades National Park, land ceded to the United States, since the Federal Government had not notified the Governor of Florida that it was assuming exclusive jurisdiction.

      . Ross’ position was that her showing that the Customs area was “possessed and controlled” by Federal Agents somehow shifted the burden to the State to show that the area was not acquired by the United States as its property. Even had the “Customs area” been shown to have been acquired by the United States, unless and until the United States accepts jurisdiction over acquired lands, “it shall be conclusively presumed that no such jurisdiction has been accepted.” 40 U.S.C. § 255. Florida courts are required to take judicial notice of this Federal statute. § 90.201(1), Fla.Stat. (1979).
      If a defendant were to meet the burden and indisputably show the exclusive jurisdiction of the United States over the sole place where the offense was committed, such a defendant would be entitled to a judgment of acquittal. See Fla.R.Crim.P. 3.610(a)(2) (authorizing judgment to be arrested where the court is without jurisdiction of the cause); State v. Davis, supra; Rollins v. State, 211 So.2d 861 (Fla. 3d DCA 1968).


text:
    Nury AGUDO, Appellant, v. Marcelo AGUDO, Appellee.
    No. 81-2703.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied April 5, 1982.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Ted H. Bartelstone, Miami, for appellant and Paul A. Louis.
    Christie & Christie and Joyce E. Christie, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The wife appeals from an order changing the temporary “residence” of the parties’ then seventeen-month-old daughter to the husband. We stayed enforcement of this order pending the outcome of this appeal. We now reverse the order.

Nury Agudo filed her petition for dissolution of marriage in January 1981. She remained with her husband and the child in the marital home until October 1981, when, after efforts to reconcile failed, she moved out with the child to live with Mrs. Agudo’s parents. On October 15, 1981, the trial court entered an order finding Nury to be a fit and proper person to have the “care, custody and control of the minor child of the parties,” and adjudging that the child should “temporarily reside” with her with liberal rights of visitation granted to the father. This decision was predicated on the extensive expert testimony that it is a well-accepted and uncontroverted proposition that a child between the age of six months and three years establishes an attachment, or bonding, to a primary caretaker; that this bonding is essential to the wholesome emotional development of the child; that to deprive a child of the primary caretaker during this period has a destructive effect on the child’s intellectual, physical and psycho-social development; that Nury Agu-do’s role vis-a-vis the child was in fact that of the primary caretaker; and that this role could only be assumed by Mr. Agudo were he to give up his work as an attorney.

A month and a half later, a dispute concerning Mr. Agudo’s visitation rights arose when the child became ill. Nury believed that Mr. Agudo should alter the scheduled visitation time because of this minor illness; in Mr. Agudo’s view, the illness required no change in his intended visitation. On the heels of this dispute, Mr. Agudo filed a pleading entitled “Motion to Hold Petitioner/Wife, Nury Agudo, in Contempt of Court and Motion for Temporary Change of Residence of Minor Child.” The hearing on the motion focused on the visitation dispute. With regard to the proposal to change the child’s “residence,” Mr. Agudo merely repeated his concern that the child was living in a home with a swimming pool and near a canal, and stated he would care for the child by making arrangements for a babysitter with whom he would be in contact with a beeper.

We first dispose of Mr. Agudo’s threshold assertion that since the order appealed only changed the “residence” of the child, it did not determine a right to “custody,” and is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C) (iii). It is the effect of the change, not the name given it, that determines what it is, see Kelley v. Kelley, 56 So.2d 439 (Fla.1952); Scott v. Scott, 401 So.2d 879 (Fla. 3d DCA 1981); Jacobs v. Boss, 304 So.2d 542 (Fla. 3d DCA 1974), and we hold that the order under review is one which determines custody.

We turn now to the wife’s contention that the evidence presented by the husband did not demonstrate a substantial and material change in circumstances to support a change of custody. Most assuredly, the wife is correct in this contention if, indeed, it was the husband’s burden to make that demonstration.

The October order which gave custody of the child to the wife was an interlocutory order. The seminal Florida case addressing the power of the court to change or modify interlocutory judgments (and, indistinguishably, orders) is Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924). There the court stated the rule to be:

“It is .. . well settled that interlocutory judgments or decrees made in the progress of a cause are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds shown at any time before final judgment, should it be after the term in which made.” 98 So. at 826 (emphasis supplied).

This right to modify an interlocutory order upon a showing of “sufficient grounds” was qualified several years later in Gibbs v. Ewing, 94 Fla. 236, 113 So. 730 (1927), where the court stated:

“As a general rule, interlocutory orders and decrees remain under the control of and subject to modification, vacation by, the chancellor, until final decree. Alabama Hotel Co. v. Mott Iron Works, [supra]; [other citations omitted].
“It would therefore seem reasonable that generally, motions to vacate or modify prior interlocutory orders might be made ... at any time before final decree . . . excepting perhaps, that as to such orders and decrees as are in some respects final in their nature, . . . upon the basis of which the rights of innocent third parties have been created, the rules as to grounds for the motion would be more strict, ...” 113 So. at 734 (emphasis supplied).

Thus, while the husband was not required to show a substantial and material change in circumstances since the entry of the first custody order, he was, under Alabama Hotel Co., required to show sufficient grounds for the change, and, because a right in an innocent third party (the child) was created by the initial order, required to make an even more compelling showing under Gibbs. But there is not the slightest evidence in the record before us to show that changing the custody of the child to the father would promote the welfare of the child or be in her best interests. Even in the case of an older child, but one of tender years, we have held:

“Certainly the best interests of the child are not served by a succession of temporary custody orders. In effect such a procedure of divided custody is one that has been held to be undesirable for the child.” Unger v. Unger, 306 So.2d 540, 541 (Fla. 3d DCA 1975).

See also Scott v. Scott, supra; Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980). A fortiori, where the unrebutted testimony (which led to placing the child in the custody of the mother in the first instance and stood unrebutted when the change was made) is that the very change ordered by the court would have a deleterious effect upon a child in the bonding stage of development, the order cannot be permitted to stand.

Reversed.

      . The trial court also found Mr. Agudo to be a fit and proper person, which finding is, as will be seen, not relevant to the issues on this appeal.

      . For example, Dr. Bruce Alspach, a psychiatrist, testified:
      “The characteristic reaction of a child when separated from a primary caretaker is anxiety, withdrawal and depression.
      “You can have other symptoms as well such as loss of interest in food, apathy, gastrointestinal disturbances, thumb-sucking and head-banging.
      “As has been demonstrated in many studies, a child does not continue to grow as well as they would be expected to otherwise and intellectually their development is impaired and their ability and interest in forming relationships with people diminishes....”

      .While, all things being equal, mothers and fathers get equal consideration in matters of custody, see § 61.13(2)(b), Fla.Stat. (1979); Anderson v. Anderson, 309 So.2d 1 (Fla.1975), all things are not equal during the bonding years when only one of them, assuming fitness, is in the position to be, and is in fact, the primary caretaker. The question whether the end of the bonding stage of development is a substantial and material change in circumstances which would allow a court to revisit the issue of custody is not before us.

      . The thrust of Mr. Agudo’s motion and the hearing itself was Mrs. Agudo’s contempt. Her suggestion here that the “change of residence” was proposed and accomplished as a form of punishment to her is not, in light of the paltry evidence supporting the change, far-fetched. Changing the custody of a child is not a device to be used to obtain compliance with other court orders. See Doran v. Doran, 212 So.2d 100 (Fla. 4th DCA 1968); State ex rel. Fox v. Webster, 151 So.2d 14 (Fla. 3d DCA 1963); see also Dubocq v. Dubocq, 338 So.2d 67 (Fla. 3d DCA 1976).

      . This same concern was expressed by Mr. Agudo prior to the entry of the court’s order in October placing the child with Mrs. Agudo. By the time of the November hearing, the yard was fenced and the exits from the house to the pool secured by locks.

      . Similarly, the sufficient cause which must be shown to justify setting aside an order, albeit interlocutory, is greater where, e.g., by statute or rule one party is entitled as a matter of right to the entry of the order, see Tremblay v. Marck, 378 So.2d 855 (Fla. 4th DCA 1979), or where a party changes his position in reliance on an interlocutory order, see American Fidelity Fire Insurance Company v. Woody's Electric Service, Inc., 407 So.2d 947, 948 n. 3 (Fla. 3d DCA 1981) (Case No. 80-2198, opinion filed December 8, 1981).

      . We disregard the husband’s concession before us that his burden was to show a substantial and material change in circumstances. The concession fails to distinguish between the rule applicable to interlocutory orders and that applicable to final judgments and decrees. In the latter case, the final judgment and decree is regarded as res adjudicata as to all circumstances concerning the custody issue existing at the time of the entry of the judgment or decree. Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933); Meadows v. Meadows, 78 Fla. 576, 83 So. 392 (1919). While the principle of res adjudicata has been held to apply to the issue of custody, Walfish v. Walfish, 383 So.2d 274 (Fla. 3d DCA 1980); Baker v. Baker, 360 So.2d 19 (Fla. 4th DCA 1978); Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975); Spradley v. Spradley, 312 So.2d 215 (Fla. 1st DCA 1975); Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975); Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974), the principle (which ordinarily precludes the relitigation of matters which could have been, but were not, considered) is not rigidly applied in matters of custody. See Meadows v. Meadows, supra (“. . . the proper custody of the minor child is a proper subject for consideration by the chancellor at any time, even if facts in issue could have been considered at a previous hearing, if such facts were not presented or considered at a former hearing.”).

      .The affidavit of Melvin S. Wise, M.D., a child psychiatrist, submitted to the trial court in support of the mother’s motion to stay the order changing custody, echoed the same thought: “Furthermore, it is evident that moving the child back and forth with temporary custody arrangements here and there is a capricious disregard of this little girl’s best interests which will result in emotional damage.”


text:
    Michael POE, Appellant, v. ESTATE OF Gertrude LEVY, Deceased, and Does I through XX, Appellees.
    No. 79-2338.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied April 5, 1982.

      Robert J. Compton and L. Anton Rebalko of the Law Offices of Compton & Herskow-itz, Fort Lauderdale, for appellant.
    Robert M. Bulfin of Law Offices of Carl W. Turner, Fort Lauderdale, for appellee-Barbara Weiner, as Personal Representative of the Estate of Gertrude Levy.
   PER CURIAM.

Appellant, Michael Poe, seeks reversal of a judgment dismissing his five count Complaint and Amended Supplemental Complaint, which he filed against the appellees, Estate of Gertrude Levy and her heirs.

On April 3, 1979, Poe filed an original Complaint containing five counts: Count I sought enforcement of an express support contract; Count II was for declaratory relief of Poe’s rights and interests in real and personal property; Count III sought a constructive trust in certain property due to the confidential relationship between Poe and the decedent, Gertrude Levy; Count IV sought enforcement of an implied contract between Poe and Levy creating a joint ownership in certain property held in Levy’s name; Count V sought quantum meruit for the reasonable value of services Poe rendered to Levy during the period of their relationship. A further complaint styled a Supplemental Complaint was filed April 4, 1979, in which Poe specifically named Levy’s heirs, who had theretofore been named as “Doe” defendants. On June 20, 1979, appellees filed a motion to dismiss and strike the complaint which was noticed for hearing August 20,1979. Later, on July 13, 1979, Poe filed an Amended Supplemental Complaint which for all intents and purposes realleged the same five counts against the same parties as contained in the original and supplemental complaint. August 1, 1979, appellees moved to dismiss and strike the Amended Supplemental Complaint and noticed those motions for hearing also on August 20, 1979. The trial court granted the appellees’ several motions to dismiss and strike and dismissed the complaint and Amended Supplemental Complaint on the grounds that “the cause of action asserted therein is repugnant to the laws and public policy of the State of Florida.”

From the foregoing final judgment Poe has perfected this appeal contending that the trial court erred a) in dismissing the Amended Supplemental Complaint, b) in dismissing Poe’s cause of action with prejudice upon improper notice of hearing, and c) in holding Poe’s claim is repugnant to the laws and public policy of Florida.

We find no reversible error in the procedural aspects of the trial court’s ruling because Poe was on notice of the substantive questions to be considered at the hearing scheduled for August 20, 1979. Thus, even though there may have been some arguable irregularity, it was harmless.

Poe’s third point constitutes the crux of this appeal. The substantive questions raised by Poe’s complaints are in some respects questions of first impression in Florida involving, as they do, issues similar to those involved in the celebrated case of Marvin v. Marvin, 557 P.2d 106, 134 Cal.Rptr. 815 (1976).

Since the decision being reviewed is a judgment dismissing Poe’s complaint we recite the facts as set forth in the Amended Supplemental Complaint. Michael Poe and Gertrude Levy commenced a friendship in 1971, which eventually resulted in a living arrangement simulating a lawful marriage. When the relationship began Poe was a 58 year old single man and Levy was a 53 year old married, but estranged, woman. Poe alleges that he and Levy decided to live together and pool their resources which they did in an allegedly platonic fashion until Levy’s lawful husband departed this world. Thereafter, it is alleged that Levy and Poe became lovers and lived as husband and wife, enjoying all of the burdens and pleasures which generally accompany the marital state.

In support of Count I of his Complaint for enforcement of an express support contract, Poe alleges he and Levy entered into “a cohabitation agreement” which included an agreement to pool their resources and funds in common bank accounts for the purpose of acquiring property and paying for the necessities of life. It is alleged that Levy had no liquid assets and required support from Poe, which necessitated his changing his previous semi-retired lifestyle and taking on additional employment. In 1975 Levy’s estranged husband died, at which time “the complexion of the relationship which existed between Poe and Levy changed” from that of friends to lovers. The complaint alleges that Levy induced Poe to devote his time, energy, and talents in advising Levy in business investments.

It is further alleged that he complied with these requests because of her representations that she wanted to marry him and intended to share all of her wordly belongings with him. In 1976-77 Levy became physically incapacitated requiring Poe to devote his entire time and energy to her maintenance, care and support. As a result of their mutual discussions Levy and Poe entered into an express agreement whereby in consideration for Poe’s attending to Levy’s total needs Levy “considered and regarded her individually acquired property as belonging to both of them.” The two of them decided to get married, but Levy’s demise occurred first. Regardless of the fact that they were not legally married, they acted like married people and held themselves out as such and they intended to purchase a condominium in their joint names. Finally, Poe alleges he fully performed his part of the bargain until Levy died, but her personal representative and her heirs refuse to acknowledge the above described agreement.

In support of his claim based upon implied contract, Count IV of the Amended Supplemental Complaint, Poe alleges additionally that during the course of their association he and Levy had the same relationship as would a couple who had been legally married; among other things, they divided all their earnings and acquisitions accruing during the relationship on the same basis as if the two were joint venturers. Furthermore, the Complaint alleges that Levy impliedly promised to give Poe the same financial security and property rights that he would otherwise have had in a legal marital relationship. She impliedly promised to give him one half of all of her assets acquired during the relationship. Therefore, Poe claims at all times he had a reasonable expectation that, if the couple parted for whatever reason, there would be an equal division of all of their assets acquired during their relationship together.

Count V, sounds in quantum meruit. Therein Poe alleges he is entitled to the reasonable value of the services he rendered during the period 1971-1979 at the instance and request of Levy.

In Count II of the Amended Supplemental Complaint Poe seeks a declaration of his rights to the various properties acquired during the relationship of the parties, which property he refers to as “equitable property.” Due to the agreements set forth earlier in his Complaint, Poe claims to be the owner of a one-half interest in this “equitable property.” However, he alleges he needs a judicial determination of those rights under the alleged contracts.

Finally, Count III alleges that a constructive trust arose as a result of the confidential relationship existing between the couple. It is alleged that Levy promised she would transfer title to all property she owned to herself and Poe jointly upon the sale of the couple’s domicile; that Poe relied upon that representation and thus pursued various courses of action in reliance upon this representation. This count states that Levy’s heirs all knew of the couple’s plans and agreements.

Poe’s Complaint then prays for damages; for an undivided one-half interest in all of the “equitable properties” described; that the personal representative and other heirs hold the property in question subject to a constructive trust. Poe also prays for partition of the properties and for the reasonable value of his services, costs and attorney’s fees.

Apparently the trial judge felt the core of each cause of action alleged was the unlawful, meretricious relationship which Levy and Poe shared and, as a consequence, any agreement, express or implied, which arose therefrom was unenforceable. The general rule is that if the consideration for an agreement is illicit sexual intercourse the agreement is unenforceable. Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979); Restatement of Contracts, § 589 (1932); 6A Corbin, Contracts, § 1476 (1962). However, if the consideration for the agreement is not sexual intercourse then the mere fact the parties are not married should not ipso facto preclude the parties from contracting according to law. Thus it appears to us that a cause of action based on an express contract or for construction of a trust is enforceable regardless of the fact that the parties may be cohabiting illicitly as long as it is clear there was valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations. For example, if two people are cohabiting contrary to the provisions of Section 798.02, that should not preclude them from being able to enter into a valid contract to purchase property with their joint or separate funds. If the elements of a constructive trust exist, the trustee should be made to account. Likewise, a claim based upon an express contract with independent consideration should be enforceable. Accordingly, Counts I, II and III state a cause of action which is not against public policy and they should not have been dismissed.

In Count IV the appellant attempted to state a cause of action for damages for breach of an implied contract. Again, by this count, the appellant seeks to recover one-half of the property owned by the deceased. Appellant’s claim under this count is predicated entirely on an allegation that the parties “had the same relationship to the same force and effect as would a couple who would have been legally married.” The appellant alleges that by virtue of this relationship he was entitled to one-half of the deceased’s property. We do not believe these allegations are sufficient to state a cause of action for implied contract. First, even if the parties had been legally married at the time of the death of the deceased, the appellant would not necessarily have been entitled to one-half of the property of the deceased. Secondly, to allow the appellant to make a claim against the deceased’s estate on the same basis as if the parties had been married would, in essence, constitute implying in law a marriage that never existed contrary to the law in Florida abolishing common-law marriages and establishing certain legal prerequisites to establish a valid legal marriage. No jurisdiction to our knowledge has gone this far. Hence, we do not believe a proper cause of action for implied contract was set out in Count IV and for that reason we find no error in the trial court’s dismissal.

In Count V the appellant sought to recover the reasonable value of the services he rendered to the deceased on a quantum meruit theory. However, in direct contradiction to such claim the appellant alleged that the services were rendered “at the special instant and request of the DECEASED and for which the DECEASED agreed to pay the Plaintiff a stated sum.” In our view these allegations of an express agreement preclude, in the same count, a claim for quantum meruit. See Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971), and Tobin and Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975). Since we do not believe appellant properly alleged a cause of action for quantum me-ruit we find no error in the trial court’s order of dismissal of Count V.

As we have noted before the trial court’s order of dismissal was expressly predicated on public policy considerations as opposed to the sufficiency of appellant’s allegations assuming there was no public policy bar to the action. We have considered the sufficiency of the appellant’s allegations under various theories in the interest of judicial economy and for the benefit of the trial court upon remand. For these reasons we also hold that nothing in this opinion should preclude the appellant from being entitled to file amended pleadings directed to the same theories of recovery which we have found lacking. Although we do not believe appellant’s allegations were sufficient we do note that related claims have been recognized, when properly pleaded, in other jurisdictions. Cf.: Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1979).

For the foregoing reasons we reverse the dismissal of Counts I, II and III and affirm the dismissal of Counts IV and V and remand the cause for further proceedings including leave to amend Counts IV and V.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    THOMAS A. EDISON COLLEGE, INC., a/k/a Thomas A. Edison College, a/k/a Thomas A. Edison College Episcopal Church of Mind, a/k/a Thomas A. Edison College, the Order of St. John of Jerusalem, Inc., and George C. Lyon, Appellants, v. STATE BOARD OF INDEPENDENT COLLEGES AND UNIVERSITIES, Appellee.
    No. 81-148.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied April 12, 1982.
    Edna L. Caruso, West Palm Beach, for appellants.
    James D. Little and Gene T. Sellers, Gen. Counsel, State Bd. of Ed., Tallahassee, for appellee.
   DELL, Judge.

Appellant Dr. George Lyon was adjudged guilty of criminal contempt in a non-jury trial. The action was instituted on motion of appellee. Appellant was sentenced to serve six months in the county jail and fined $10,000.

Appellant contends the order to show cause why he should not be held in contempt was invalid for failure to comply with Rule 3.840(a)(1), Florida Rules of Criminal Procedure in that the order was not issued upon a sworn affidavit. He further contends that his sentence and fine were illegally imposed.

In 1974 appellee filed a complaint for injunctive relief against appellant for issuing diplomas without a state license. Summary final judgment was entered permanently enjoining appellant, among other things, from furnishing or offering to furnish a degree or diploma and from using the word “college” or “university” in the name of appellant entity.

In 1979, appellee filed a motion for contempt against appellant for offering to issue a Ph.D. degree granted by Thomas Edison College, and for issuing a diploma in clinical psychotherapy and a certificate in clinical psychotherapy granted by Palm Beach Psychotherapy Training Center. Hearing on the motion was held before Judge Born and sworn testimony was taken. Judge Born issued an order for appellant to appear before Judge Rodgers and show cause why appellant should not be held in criminal contempt. A show cause hearing was conducted before Judge Rodgers and appellant was held to be in contempt.

Rule 3.840(a)(1), Florida Rule of Criminal Procedure provides:

(1)Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charge and requiring him to appear before the court to show cause why he should not be held in contempt of court. (Emphasis added).

Although no affidavit was filed, Judge Born heard sworn testimony before issuing the order to show cause. This is sufficient to invoke the court’s discretionary authority to issue an order to show cause.

The jail sentence is valid. A jury trial is required by the United States Constitution when the sentence imposed is in excess of six months. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), Aaron v. State, 345 So.2d 641 (Fla.1977) and cases cited therein.

We are compelled to agree with appellant that the fine imposed was excessive. Section 38.22, Florida Statutes (1973) authorizes courts to impose imprisonment and a fine for contempt, but states no maximum punishment. Section 775.02, Florida Statutes (1927) provides that when no maximum punishment is provided by statute for criminal conduct, punishment shall not exceed one year’s imprisonment and $500.00 fine. Criminal contempt convictions are subject to the provisions of Section 775.02. Aaron v. State, 284 So.2d 673 (Fla.1973).

Although the actions of appellant herein display a continuing pattern of contempt, the holding of Aaron v. State, 284 So.2d 673 (Fla.1973) leaves us no alternative. The order appealed is remanded to the trial court with directions to reduce the fine to not more than $500.00. In all other respects, the judgment of the trial court is affirmed.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    William KENDELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-326.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied April 7, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, Warren v. State, 332 So.2d 361 (Fla. 3rd DCA 1976).

ANSTEAD, HURLEY and DELL, JJ., concur.


author: BOOTH, Judge.

text:
    GOLD COAST PAVING COMPANY, INC. and Maryland Casualty Insurance Company, Appellants, v. Baltazar FONSECA, Appellee.
    No. YY-308.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Rehearing Denied April 6, 1982.

      Frank G. Cibula, Jr., West Palm Beach, for appellants.
    Shelton Clyatt, Jr., West Palm Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding continuing temporary total disability benefits from the date of the accident, past and continuing medical treatment by claimant’s physicians in Mexico, attorney fees, interest, penalties and costs. The employer/carrier raises numerous points on appeal. Because we find that there was no competent substantial evidence that the claimant’s disability at the time of the hearing on September 25, 1980 was causally related to his May 21, 1978 industrial accident, we reverse.

Claimant, Baltazar Fonseca, is a native of Mexico who was employed as a laborer by appellant, Gold Coast Paving Company, Inc., in Palm Beach County, Florida. He had a history of back and groin pain dating from 1976. In August, 1977, Fonseca sustained an industrial accident while working for a prior employer. He was treated for back pain and underwent surgery to repair a hernia but returned to work without restriction in December, 1977.

Approximately five months later, on May 21, 1978, Fonseca sustained a second accident when he jumped from a roller machine in the course of his employment with appellant. Following a short hospitalization for contusions and muscle spasm of the lumbro-sacral area of the left hip, Fonseca lived with his brother in Pahokee, Florida, for approximately two months. During this period, the employer/carrier supplied medical treatment by several authorized physicians and paid temporary total disability benefits until June 29, 1978, when the payments ceased for reasons not apparent in the record. After filing a “shotgun” workers’ compensation claim on July 17, 1978, Fonseca left the United States in August, 1978, and flew back to his residence in Irapuato, Mexico, where he remained during the proceedings below.

Prior to Fonseca’s departure from the United States, his physicians felt that he was able to return to work, and all x-rays were normal. Dr. Penner, the treating orthopedic surgeon, stated by deposition that his examination of Fonseca on July 25,1978 was “completely normal” and that he suspected malingering, although he “tried . . . to be fair to this patient.” Dr. Orduna, a general surgeon who repaired Fonseca’s 1977 hernia, examined him on June 14, 1978, after Fonseca complained of groin pain. Dr. Orduna found “no recurrence or breakdown in the hernia repair” and recommended that Fonseca return to work in two weeks. At the time Fonseca left the United States, there was no medical evidence of any disability or inability to work.

The Deputy Commissioner’s finding that Fonseca had “serious and continuing medical problems” related to the May 21, 1978 accident was based entirely on deposition testimony by two physicians in Irapuato, Mexico, approximately one and a half years after the accident. This testimony was taken on October 19, 1979, without the presence of the employer/carrier’s counsel. The deposition testimony revealed that Fonseca waited approximately six months after his return to Mexico (eight months after the accident) before seeking medical attention on February 9, 1979. Dr. Arboleya, a specialist in physical therapy, testified that at this time Fonseca’s x-rays revealed a herniated disc caused by a wedge fracture and nerve root compression. Dr. Arboleya felt that Fonseca was totally disabled and might require surgery if he did not improve within two months. He did not testify as to causation. Dr. Delfín, a Mexican neurosurgeon, also examined Fonseca in early 1979 and diagnosed radicular compression and a herniated disc. Dr. Delfín also felt that Fonse-ca was totally disabled.

The Deputy Commissioner based his finding that Fonseca’s disability in early 1979 was causally related to the industrial accident on the following deposition testimony:

Q Dr. Delfín, do you have an opinion based upon reasonable medical probability as to whether or not the competent producing cause of the patient’s current complaints was the accident experienced May 21, 1978?
A Medically, yes; it could have been.
Q What is the basis of your opinion?
A The absence of symptomology, previous that is, to the accident and the development of the clinical picture secondary to the same and coinciding to the injured zone.
Q Is that the report of pain in the lower back after the accident?
A Exactly.

Clearly, Dr. Delfín was unaware that Fonseca had a prior history of intermittent back pain, that x-rays and medical examinations within two months of the accident were normal, and that approximately six months had elapsed before Fonseca sought medical attention in Mexico.

While a Deputy Commissioner has discretion to accept the testimony of one physician over that of another, “[t]his discretion must ... be solidly rooted in a firm foundation of fact to support the opinion of the expert upon whom the Deputy choses to rely.” Geiger Distributors, Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966). Where, as in this case, such a factual foundation is absent, medical testimony lacks the necessary probative value to support a finding of causation. Munroe Memorial Hospital v. Thompson, 388 So.2d 1338, 1339 (Fla. 1st DCA 1980); Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957).

We are aware that ordinarily a reviewing court will not undertake to reevaluate the weight or relative credibility to be accorded medical testimony. Kashin v. Food Fair, Inc., 97 So.2d 609 (Fla.1957). As stated by the court in United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741, 745 (Fla.1951):

Doctors vary in degree of ability, as do lawyers, scientists, executives, educators, clergymen, and other professional as well as every-day business men. The fact-finding arbiter is usually in a better position than the reviewing body to judge the ability, experience, and reputation of the various so-called expert witnesses who appear personally before him and to determine the weight which should be given to their testimony. One doctor may have a long list of degrees behind his name, while another has but few. However, the latter might, by his demeanor on the witness stand and by his freedom and clarity of expression, disclose a familiarity with the subject under discussion which far exceeds that of the ostensibly better educated theorist, [emphasis supplied]

However, where, as here, the only evidence presented is in the form of written depositions of witnesses, the considerations favoring the deputy’s prerogatives are less compelling. Morrison Merchandising Corporation v. Rambeau, 377 So.2d 234 (Fla. 1st DCA 1979).

We also note that Fonseca, over the employer/carrier’s objections, was not required to present himself at the hearing or at a deposition in Florida. See Chittick v. Eastern Airlines, Inc., 403 So.2d 595 (Fla. 1st DCA 1981). The only testimony of the claimant was taken by court-appointed commissioner in Irapuato, Mexico, on October 19, 1979. Thus, the rule that a Deputy Commissioner has discretion to reject medical testimony and to make findings based on lay testimony and on his personal observation of the claimant is not applicable in this case. See, e.g., Crowell v. Messana Contractors, 180 So.2d 329, 330 (Fla.1965).

Accordingly, the order below is REVERSED.

SHAW and WENTWORTH, JJ., concur.


text:
    Douglas M. BROOKS, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD, etc., et al., Appellees.
    No. AB-299.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Rehearing Denied April 6, 1982.
    William D. Barrow of Barrow & Holley, Crestview, for appellant.
    No appearance for appellees.
   PER CURIAM.

This is an appeal from an order granting defendant/appellee’s motion for final summary judgment.

Appellant Brooks lives several hundred yards from L & N’s tracks and roadbeds. As a result of a derailment and toxic chemical leak, he and his family were forced to evacuate his premises. While away his house was burned to the ground by a fire of unknown origin. He filed suit alleging that he was evacuated as a result of the derailment; that his home burned while he was away; and that, as a result of L & N’s negligence causing the derailment, he incurred the losses.

L & N filed a motion for summary judgment arguing that appellant’s injuries were not reasonably foreseeable by L & N nor a foreseeable consequence of the acts alleged in the complaint. The trial court granted summary judgment for L & N.

Appellant argues here that even if the damages resulting from his house burning were not reasonably foreseeable, it was reasonably foreseeable that appellant might have to evacuate as a result of the derailment and gas leak. Therefore, the court was in error in granting summary judgment as to appellant’s expenses incurred as a result of the forced eviction and evacuation. The complaint, however, does not claim eviction expenses but asserts only the loss by fire and that he “incurred heavy expenses on account of his losses.” With respect to his loss by fire, we conclude that the summary judgment is not in error as a matter of law because the sole affidavit in support of the claim states no other facts material to the issue of proximate cause except that the alleged negligent derailment and resulting evacuation deprived him of the opportunity of preventing the fire or putting it out. The fire itself was in these circumstances properly regarded as an unforeseeable independent intervening cause of consequences for which appellee, under controlling law fully articulated by earlier opinions in this jurisdiction, does not have liability. Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960).

The judgment is accordingly affirmed.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Sally MALONE, Appellant, v. Theodore B. MEADOW, Appellee. Sally MALONE, Petitioner, v. Larry A. BODIFORD, Circuit Judge for Gulf County, Respondent.
    Nos. AD-197, AC-323.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Rehearing Denied April 5, 1982.
    Sally Malone, in pro. per.
    Cecil G. Costin, Jr., Port St. Joe, for ap-pellee in No. AD-197.
   PER CURIAM.

There is no error in the judgment that Malone is guilty of indirect criminal contempt. The appropriate fine for such an offense cannot exceed $500, however, and the fine here is excessive by $250. Section 775.02, Florida Statutes (1979); Aaron v. State, 284 So.2d 673 (Fla.1973). Nor are the restrictions on Malone’s right of access to the courts through self-representation sustainable as in Shotkin v. Cohen, 163 So.2d 330 (Fla. 3d DCA 1964). The sentence to that extent is VACATED, but otherwise the judgment and sentence are AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and THOMPSON and WIGGINTON, JJ., concur.