author: ADKINS, Acting Chief Justice.

text:
    Robert O’MALLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 59280.
    Supreme Court of Florida.
    April 2, 1981.
    Robert O’Malley, in pro. per., for petitioner.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Acting Chief Justice.

This case is here on a writ of habeas corpus to decide whether Robert O’Malley was invalidly sentenced because he was declared a mentally disordered sex offender in accordance with chapter 917, Florida Statutes (1975), before sentence was imposed. We have jurisdiction. Art. V, § 3(b)(9), Fla.Const. (1980).

O’Malley is incarcerated pursuant to judgments and sentences entered for two counts of false imprisonment, one count of lewd and lascivious act in the presence of a female child under the age of fourteen years, and one count of handling and fondling a male child under the age of fourteen years. Sentence imposed in the false imprisonment charge was to be served concurrently with sentence imposed for the charge of lewd and lascivious acts in the presence of a female child under the age of fourteen years. The sentence imposed for handling and fondling a male child under the age of fourteen years was to run consecutive to the other sentences.

Petitioner O’Malley was committed to the custody of the Department of Offender Rehabilitation, Division of Mental Health Services, pursuant to chapter 917, Florida Statutes, for treatment and rehabilitation. Thereafter, petitioner was to begin serving fifteen years for false imprisonment and lewd and lascivious acts in the presence of a female child under the age of fourteen years. Upon completion of that time of imprisonment, petitioner would then begin serving a ten-year sentence for his fourth conviction.

The sentences were imposed April 15, 1976. O’Malley completed treatment in November, 1976, and has been transferred to the Department of Corrections. He says that the sentence was unlawful in that it was imposed prior to the completion of the treatment. We agree.

The intent of chapter 917, Florida Statutes, is to provide treatment and rehabilitation for one determined to be a mentally disordered sex offender. Upon completion of the psychiatric treatment, petitioner O’Malley should have been brought before the court for recommencement of the criminal proceedings. At that time, the court would have an opportunity to take into consideration the extent which such treatment should affect the sentence imposed.

In Gammill v. Wainwright, 357 So.2d 714 (Fla.1978), the trial court sentenced Gam-mill following a guilty plea to 35-year prison terms on two kidnapping offenses, immediately after determining petitioner to be a mentally disordered sex offender. We held that the trial judge failed to follow the correct procedure, and thereby frustrated the purpose of chapter 917, Florida Statutes. In Gammill we vacated the sentence and remanded petitioner to the trial court for proper disposition.

It is the same here. The sentences imposed upon petitioner are vacated. O’Mal-ley shall be brought before the Circuit Court of the Sixth Judicial Circuit in Pinel-las County for imposition of appropriate sentences. The court should consider any rehabilitative effect the treatment of O’Malley has had on him, giving effect to the treatment purpose of this statute.

Petitioner is entitled to neither a discharge nor a new trial, only a resentencing.

It is so ordered.

BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    Richard T. PULERI, Petitioner, v. STATE of Florida, Respondent.
    No. 57050.
    Supreme Court of Florida.
    April 2, 1981.
    Richard S. Rhodes and Edward R. Kirkland, Orlando, for petitioner.
    Jim Smith, Atty. Gen. and Glenn H.. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Fla.R. App.P. 9.120, and it appearing to the Court that it is without jurisdiction, it is ordered that certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

BOYD, Justice,

dissenting.

I dissent from the Court’s refusal to provide review of the petitioner’s sentencing. I would treat the petition as a motion for habeas corpus relief. The trial court imposed a sentence of imprisonment on the petitioner, relying in part on conclusions drawn from factual matters contained in a presentence investigation. The petitioner took issue with the facts relied on, but had no opportunity to rebut, explain, or deny the information.

I believe that the principles announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), should apply to all sentencing proceedings involving the possibility of imposition of criminal punishment. Under the constitutional concepts of equal protection of the law, due process of law and the right to confront one’s accusers, I think that a writ of habeas corpus should be granted with an opportunity afforded to the petitioner to rebut the allegations made against him in the presentence investigation report. I further dissent for the reasons expressed in my dissenting opinion in Nelson v. State, 396 So.2d 1130 (1981).


text:
    Jerry Joe NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 57371.
    Supreme Court of Florida.
    April 2, 1981.
    John D. Fernandez, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Fla.R. App.P. 9.120, and it appearing to the Court that it is without jurisdiction, it is ordered that certiorari is denied. Fla.App., 372 So.2d 949; Fla.App., 373 So.2d 468.

No Motion for Rehearing will be entertained by 'the Court. See Fla.R.App.P. 9.330(d).

SUNDBERG, C. J., and ADKINS, OVER-TON and ENGLAND, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissent from the denial of certiorari. The petitioner clearly raised the issue of the trial court’s reliance in part on the confidential section of a presentence investigation report. He requested access to the entire report and objected to being sentenced without opportunity to respond to the factual material in the confidential section. The trial judge refused to furnish petitioner with the confidential report. He also declined to disclose the factual material therein, thus violating Florida Rule of Criminal Procedure 3.713(b). The district court’s affirmance, Nelson v. State, 373 So.2d 468 (Fla.2d DCA 1979), created conflict with Bronson v. State, 345 So.2d 872 (Fla.2d DCA 1977), and Campbell v. State, 342 So.2d 1010 (Fla. 4th DCA 1977). Therefore, we have jurisdiction. Art. V, § 3(bX3), Fla.Const.

On the merits, I would hold that the trial judge should have furnished the entire pre-sentence investigation report to the petitioner. The disclosure of all factual material relied upon in making the decision on sentencing a person convicted of a crime is not merely commanded by our rule of procedure but should be considered a requirement of due process. When a trial court is performing the discretionary function of deciding what kind of criminal punishment to impose on an offender, the need for reliability outweighs the state’s interest in confidentiality. The offender should be furnished with all factual material relied upon far enough in advance of sentencing to allow him to rebut, explain, or deny the factual matters in question.

I would adopt for Florida this expanded view of the principles of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and hold that due process requires full disclosure.

In Gardner v. State, 313 So.2d 675 (Fla. 1975), I joined Justice Richard Ervin in a dissenting opinion which maintained that due process of law under the United States and Florida constitutions requires that persons being sentenced for a capital offense in Florida must have an opportunity to examine and rebut any statements contained in their presentence investigation reports. Our view was adopted on review by the United States Supreme Court. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it was held that due process of law requires the appointment of counsel for indigents accused of crimes punishable by death. In Gideon v. Wainwright, 372 U.S. 335,'83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court went a step further and held that the fourteenth amendment due process clause, incorporating the fundamental features of the sixth amendment right to counsel and applying them to the states, requires that indigents accused of major crimes be provided counsel at public expense.

In State ex rel. Argersinger v. Hamlin, 236 So.2d 442 (Fla.1970), I authored a partially dissenting opinion which was joined by Justices Ervin and Adkins. We expressed the view that the right of accused indigents to appointed counsel should not be limited to felony cases. On review, the United States Supreme Court agreed with our dissenting view and extended the right of counsel for indigents to all persons facing charges that might result in loss of liberty regardless of the possible term of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006,32 L.Ed.2d 530 (1972).

Just as the principle of Powell v. Alabama was extended in Gideon, and later expanded to include misdemeanants in Ar-gersinger, the protection against arbitrariness afforded by the Gardner decision should be extended to all persons being,, sentenced. If a presentence investigation is done, the convicted person should be given access to all matters it reveals.

The sixth amendment to the United States Constitution as applied to the states by the fourteenth requires that in all criminal prosecutions the accused must have the right to be confronted with the witnesses against him. Article I, section 16 of the Florida Constitution guarantees the accused the right “to confront at trial adverse witnesses.” These guaranties should be construed to include sentencing.

Punishment for crime is a matter of substantive law. State Dept, of Health and Rehabilitative Services v. Golden, 350 So.2d 344 (Fla.1976). When a judge is exercising discretion in sentencing a person within statutory maximum and minimum limits, the standards he uses, wherever he may find them, are substantive guidelines.

It has long been recognized that accused persons have a constitutional right to confront witnesses testifying against them in court to refute their testimony. The same right exists to see and respond to statements in presentence investigation reports. Evidence offered at trial may cause conviction, but often it is the secret statements of unidentified informants which determine whether a convicted person will face incarceration, fine or probation. Denial of the timely examination of all presentence reports is a clear violation of a constitutional right, although such practice has long existed in America.

Fair trials and equal protection of law are essential to the existence of democratic government. Mankind’s unending search for liberty and justice is more fully protected by the federal and state constitutions than any other documents in the history of the world. Whenever one stands at the bar of justice facing possible death, imprisonment, or fine, constitutional rights are his only protection from arbitrary government. Courts must be vigilant in their duty to safeguard constitutional rights for all of the people under all circumstances.

I respectfully dissent.


author: PER CURIAM.

text:
    Linda RICKBORN, f/k/a Linda Hurwitz, Petitioner, v. Joseph Robert MacDONALD, Respondent.
    No. 58089.
    Supreme Court of Florida.
    April 2, 1981.
    Karen Brenner and C. Martin Lawyer, III of Bay Area Legal Services, Inc., Tampa, for petitioner.
    Richard Oehler, Tampa, for respondent.
   PER CURIAM.

Having initially accepted jurisdiction, this Court, upon further consideration of the matter, has now determined that it is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


author: SHARP, Judge. SHARP, Judge.

text:
    Stephen M. SHEWAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-448/T4-427.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    On Rehearing April 8, 1981.
    Richard L. Jorandby, Public Defender and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Richard Combs, Asst. State Atty., Orlando, for appellee.
   SHARP, Judge.

Shewan appeals from a judgment convicting him of robbery. Prior to entering his nolo contendere plea to the robbery charge, he reserved his right to appeal the denial of his motion for discharge because of lapse of the speedy trial time set forth in section 941.45, Florida Statutes (1977). We affirm the judgment.

Shewan was serving a sentence in the Federal prison in Miami when the State of Florida charged him on May 12, 1978 with armed robbery. The state took custody of the defendant and arraigned him in Orange County, on September 15, 1978. On November 21, 1978, a federal prison official wrote to the assistant state attorney in Orlando reminding him that Shewan had requested a final disposition of the state charges against him on August 23, 1978, and that pursuant to section 941.45(3) of the Interstate Agreement on Detainers, She-wan had to be brought to trial within 180 days of the time his request was delivered to the appropriate officials.

Trial was set for January 18, 1979. On January 22, 1979, the defendant’s attorney moved for a continuance on the grounds that he was ill and unable to conduct the trial on January 18,1979. The court granted the motion for continuance and reset the trial for February 6, 1979. On February 8, 1979 Shewan moved for discharge, which the court denied and on February 13, 1979 he entered his nolo plea.

Shewan argues that section 941.45(4)(c) sets a 120 day period within which a prisoner confined in another state, or in the federal prison, must be brought to trial, after the state has obtained custody of the prisoner. The statute provides:

In respect of any proceeding made possible by this subsection, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (Emphasis supplied).

Florida’s applicable speedy trial rule, Rule 3.191(a)(1) provides that Shewan must be brought to trial within 180 days after being delivered to the custody of Florida:

[Ejvery person charged with a crime by indictment or information shall without demand be brought to trial ... within 180 days if the crime charged be a felony .... The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. (Emphasis supplied).

If this case involved only those two provisions, we would be required to determine whether or not section 941.45(4)(c) is constitutional, and whether or not the time periods established by the rule and statute are “substantive” or “procedural.” State v. Golden, 350 So.2d 344 (Fla.1976).

In this case, however, Shewan initiated the proceedings in the state court by requesting a “final disposition” of the information filed against him, pursuant to section 941.45(3)(a). This section provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state an untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint .... (Emphasis supplied).

The record shows that Shewan’s request was made on August 23, 1978. His trial was set, and his plea was entered within the 180 day period established by the Detainer statute, and by the Florida Speedy Trial Rule. The judgment is therefore affirmed.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

ON MOTION FOR REHEARING

SHARP, Judge.

In connection with a motion for rehearing, Shewan supplemented the record, at our direction, to establish that the State of Florida, rather than Shewan, initiated the trial proceedings in the state court pursuant to section 941.45(4) of the Interstate Agreement on Detainers Act. Our prior opinion was premised on the assumption that She-wan requested the commencement of the state proceedings pursuant to section 941.-45(3) of the Act. Subsequently Shewan did request trial by the state authorities, but only after the state had commenced the proceedings. If the prisoner first requests final disposition, the state has 180 days after proper receipt of the notice and request to bring him to trial. However if the state first requests delivery of the prisoner, the state must bring him to trial within 120 days of his arrival in the state’s custody.

In this case the record indicates the prisoner was placed in Florida’s custody pursuant to its request on September 15,1978. A trial date was set for January 17, 1979, more than 120 days after September 15, 1978. Shewan moved for discharge on February 8, 1979, and the trial court denied his motion. He then entered a nolo contendere plea, reserving his right to appeal the denial of his motion for discharge.

There is a conflict in this case between application of the time periods established by section 941.45(4) of the Interstate Agreement on Detainers Act [120 days after Florida obtained custody of Shewan] and Florida’s speedy trial rule 3.191(b)(3) [6 months after proper service of the prisoner’s demand to be brought to trial]. The speedy trial rule time runs only from the prisoner’s demand for trial, and there is no comparable provision to section 941.45(4) for state authorities triggering a shorter trial time. Shewan was in fact brought to trial within 6 months of his written demand for trial, but he was not tried within 120 days after the state obtained his custody.

State Department of Health & Rehabilitative Services, etc. v. Golden, 350 So.2d 344 (Fla.1976), appears dispositive of the constitutional question of whether a statute can conflict with the rules.

[T]he length of time an individual may spend in confinement is substantive in nature and within the prerogative of the Legislature to the extent it does not violate a constitutional provision.

350 So.2d at 347. Under the rationale expressed in Golden, the Legislature can shorten the speedy trial times by statute with constitutional impunity.

We recede from our prior opinion in this cause, and accordingly we reverse the conviction, and order Shewan discharged by the state authorities. He shall be transferred to the custody of the Federal Correctional Institution in Miami, or such other federal authorities as may be appropriate.

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . The information was amended on September 7, 1978.

      . § 941.45, Fla.Stat. (1977).


author: PER CURIAM. PER CURIAM.

text:
    Evelio MANTILLA and American Motorists Insurance Company, a corporation, Appellants, v. Olimpia HASSANIEN and Mohamed Nabil Hassanien, Individually and as husband and wife and as parents of Nermine Hassanien, a minor, Appellees.
    No. 79-2411.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied May 1, 1981.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, and David S. Currie, Miami Shores, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

This action arose from a collision between one vehicle driven by Evelio Mantilla, and another driven by Olimpia Hassanien, accompanied by her daughter, Nermine. The Hassanien’s brought suit for Nermine’s injuries; Evelio affirmatively defended on the basis of Olimpia’s sole fault. Alternatively, Evelio counterclaimed for contribution from Olimpia under the Joint Tort-feasors’ Act.

The counterclaim was dismissed from the pleadings under authority of 3-M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), and Evelio appealed.

We reverse the dismissal on the basis of our decision in Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981), which overrules 3-M, and concludes that contribution properly lies against a contributorily negligent parent of an injured minor child-plaintiff.

Reversed and remanded for further disposition not inconsistent with this opinion.

ON MOTION FOR RECONSIDERATION

PER CURIAM.

The motion for reconsideration is denied. However, as in Quest v. Joseph, 392 So.2d 256, 262, n. 12 (Fla. 3d DCA 1981) and Orlando Sports Stadium, Inc. v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981), we shall certify this cause to the supreme court as one involving a question of great public importance, as to whether and under what circumstances an action for contribution lies against the parent of an injured child.


author: HERSEY, Judge. GLICKSTEIN, Judge,

text:
    Tommy Lee SHERROD, Petitioner, v. The Honorable Arthur J. FRANZA, as Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 80-2003.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied May 6, 1981.

      Alan H. Schreiber, Public Defender, Daniel L. Tedesco, Asst. Public Defender, and Peter Mineo, Jr., Certified Legal Intern, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

For two reasons we deny the petition for writ of prohibition. The first goes to the merits of petitioner’s argument for issuance of the writ. The second is based upon policy considerations.

After two mistrials the trial court entered an order dismissing the charges against petitioner, Sherrod, with prejudice, cancelling his appearance bond. The state appealed and this Court reversed. State v. Sherrod, 383 So.2d 752 (Fla. 4th DCA 1980). The state made no effort to have the original order stayed pending appeal pursuant to Section 924.19 Florida Statutes (1979). The mandate from this Court, dated June 4, 1980, was lodged in the trial court on June 9, 1980. A new trial was set for July 23, 1980 and petitioner’s counsel, the Public Defender’s Office, was notified. Petitioner failed to appear for trial on that date. A no-bond capias was issued and the trial was rescheduled for September 2, 1980. Again petitioner failed to appear and again a no-bond capias was issued. The record shows that notice had also been sent to petitioner’s last known address.

On October 20, 1980 petitioner filed a motion for discharge in reliance on subsection (g) of Rule 3.191, Florida Rules of Criminal Procedure, which requires that trial be accorded the accused within ninety days of receipt by the trial court of the mandate requiring a new trial.

The State’s position was that petitioner’s non-appearance on the respective trial dates constituted evidence that he had not been continuously available for trial. Petitioner took the position that there is initially a burden on the state to produce some evidence that the petitioner was not continuously available for trial before the burden shifts to petitioner to come forward with evidence of availability. Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977). Further, petitioner argues that because he was neither in custody nor on bail or personal recognizance his failure to appear for trial after written notice constitutes no evidence of non-availability for trial State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978). The rule itself provides that there is no presumption that a defendant is unavailable for trial.

In response the state maintained that jurisdiction reattaches upon reversal of the order of discharge or dismissal, so that nonappearance after written notice should constitute sufficient evidence of non-availability to at least shift the burden to petitioner to show continuous availability.

Petitioner relies on State v. Lampley, 271 So.2d 783 (Fla. 3d DCA 1978) for the proposition that failure of the state to seek an order staying the operation of the order of dismissal effectively terminates the court’s control over the petitioner so that written notice is no longer sufficient to require petitioner either to appear or to have his nonappearance accepted by the court as sufficient evidence of his non-availability for trial to shift the burden of going forward with the evidence (on the issue of continuous availability) back to petitioner.

The trial court denied the motion for discharge and these proceedings in prohibition resulted.

We find that neither Thigpen v. State, supra, nor State ex rel. Smith v. Nesbitt, supra, nor State v. Lampley, supra, is controlling here.

The court, in Thigpen, stated the pertinent facts to be:

[1] The alleged murder occurred on May 31,1974 in Orlando. The Defendant was first arrested on June 14, 1974 by Orlando police on a charge of first degree murder. On June 21, 1974 the Grand Jury returned a No True Bill and the Defendant was released. On August 6, 1974 he was indicted on a charge of second degree murder. He was arrested in Miami on February 6, 1975 and filed his Motion for Discharge on April 7,1975. It is clear that the Defendant’s 180-day speedy trial time period began to run on June 14, 1974 when he was first taken into custody. Id. at 1079.

The evidence was that defendant had given an Alabama address on the Sheriff’s Department Booking Report. Accordingly, the capias was sent to a Sheriff’s office in Alabama. There was neither a response nor any follow-up. The court, discussing the positive evidence of other possible leads to the whereabouts of the defendant, determined that while the state is not required “to make exhaustive efforts to locate an accused in order to establish some evidence of non-availability ... something more than just sending a warrant to out-of-state authorities ...” will be required.

There are at least two important points of departure between Thigpen and petitioner Sherrod’s case. In Thigpen the Grand Jury returned a No True Bill and the defendant was released. There was no lingering residual jurisdiction. The charges were born again ■ by indictment. Petitioner, on the other hand, was involved in a jury trial which resulted in an order from which an appeal was taken. His counsel participated in that appeal. Petitioner was constantly under the jurisdiction of the trial court until that jurisdiction was shifted to this court by virtue of the timely appeal and then back to the trial court by the mandate. At all times notice to his counsel was the equivalent of notice to him. State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980). In addition, the record shows that no bond capiases were requested on both prospective trial dates. This is some evidence that the State made a good faith attempt to bring petitioner physically before the trial court. In summary the cases differ in that (1) petitioner was bound to know that an appeal was possible so that jurisdiction over him might continue despite the erroneous discharge, which in fact did happen; and (2) petitioner was continuously represented by the Public Defender’s Office as counsel to which good and sufficient notice was given.

State ex rel. Smith v. Nesbitt, supra, involved criminal charges lodged in two entirely separate and distinct courts. Defendant had been charged with both felony crimes and misdemeanors. He was arrested and released on bail. A committing magistrate subsequently reduced the felony charges to misdemeanors and allowed the defendant to remain free on bail. The defendant was bound over for trial in the County Court of Dade County. The State then filed an Information in the circuit court reinstating the felony charges. Written notice of the arraignment to be conducted on these charges in the circuit court was mailed to the defendant’s last known address. He did not appear for arraignment. At the expiration of the speedy trial time and subsequent to his arrest he filed a motion for discharge which was denied. The appellate court simply held that written notice was insufficient where the defendant was not in custody or free on bond or personal recognizance “before the court where the charges are pending.” The obvious distinction between that case and this is that the circuit court never obtained jurisdiction over the defendant. Under such circumstances written notice is clearly insufficient and the district court so held.

The Lampley case simply held that it was error to order forfeiture of a bail bond where the state failed to apply for a stay of an order dismissing an Information. This issue, while perhaps analogous to the questions of notice and jurisdiction, is clearly distinguishable and certainly not controlling on the question of notice involved in the instant case.

In summary, we would deny the petition on the merits for the foregoing reasons.

There is still another and more persuasive basis for denial of the writ here. It is becoming increasingly clear that the use of prohibition in the area of speedy trial violations is becoming an abuse of the writ.

The right to a speedy trial is a fundamental right guaranteed by the Bill of Rights. U.S.Const. amend. VI.

It finds its counterpart in Article I, Section 16 of the Florida Constitution.

The right to speedy trial is codified in Section 918.015, Florida Statutes (1979).

And finally, exercise of the right and its parameters are detailed in Rule 3.191 of the Florida Rules of Criminal Procedure.

Basically, one charged with a felony is entitled to be tried within 180 days after being taken into custody on the crime charged. The time is tolled for such period as the defendant is not continuously available for trial. The speedy trial period may be extended under circumstances set out in the rule.

There is no presumption that the defendant is unavailable for trial. Fla.R. Crim.P. 3.191(e). However, if the State presents any evidence of non-availability, “the accused then must by competent proof establish continuous availability .... ” An excellent and more detailed explanation of the rule is contained in Judge Hubbart’s opinion in State ex rel. Smith v. Nesbitt, supra.

The factual backgrounds against which alleged violations occur are myriad. Most determinations of whether or not a violation has occurred require factfinding at least to some degree. The ultimate issue, then, is whether a defendant can or should be able to seek relief in an appellate court before being required to proceed to a trial on the merits.

Such relief has been sought, and, on occasion, successfully, by the medium of a petition for writ of mandamus or a petition for writ of prohibition. Both have been deemed appropriate, the former by express holding and the latter by dicta, in Wincor v. Turner, 215 So.2d 3 (Fla.1968). At least one earlier case cited by the Turner court expressly condoned the use of prohibition. Dickoff v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942).

Both Turner and Dickoff involved violations of the speedy trial statute then in force (Section 915.01(2) Florida Statutes (1967)) which provided:

(2) When a person has been arrested and released on bond, and thereafter for three successive terms of court, files a written demand for trial (serving a copy on the prosecuting attorney) and he is not brought to trial at or before the third full term after the date he is first committed, he shall be forever discharged from the crime; provided, however, the attendance of the witnesses is not prevented by himself, and he has filed no pleading seeking a continuance.

In Turner the court emphasized that what was involved was the accused’s constitutional right to a speedy trial. The accused had filed his written demand on three occasions. There was no disposition by the trial court. The Supreme Court found this no impediment and remanded the cause with instructions to discharge the accused “[i]f the petitioner establishes the verity of the allegations of the petition or the State fails to set forth a legal defense in its return, ...” Wincor v. Turner, supra, at 6.

The point is that (1) it was the accused’s constitutional right that was in issue rather than a question of a technical violation of a procedural rule enacted to safeguard that right and shorten the permissible period, and (2) there was no order or ruling of the trial court based upon a factual determination from which review was being sought.

These are important distinctions because the plethora of petitions that these days inundate the appellate courts are by and large ill-concealed attempts to obtain immediate (and therefore premature and untimely) review of a non-final order in criminal proceedings. It seems clear that neither mandamus nor prohibition are available to test an order denying a motion for discharge based upon a violation of the speedy trial rule where one or more issues of fact are expressly or by necessary implication determined by the trial court in the process of disposing of the motion.

At least in the fourth district, this distinction has been drawn and, for the most part, is being followed. Dees v. Kaplan, Case No. 80-867 (Fla. 4th DCA Order filed June 26, 1980); State ex rel. Clements v. Tyson, Case No. 79-2455 (Fla. 4th DCA Order filed January 4, 1980); Arner v. Tyson, Case No. 79-1109 (Fla. 4th DCA Order filed July 18, 1980); Young v. Tyson, Case No. 80-459 (Fla. 4th DCA Order filed May 8, 1980).

In summary, the preferable rule would seem to be that neither mandamus nor prohibition is an appropriate medium for review of a trial court’s order denying a motion for discharge based upon a violation of the speedy trial rule. Mandamus lies to compel the performance of a ministerial act. Its application in a speedy trial rule context assumes a lack of jurisdiction. Prohibition is the appropriate means for preventing a court from proceeding where it has no jurisdiction or where it seeks to act in excess of its jurisdiction.

While violation of an accused’s constitutional right to speedy trial may, under appropriate circumstances, divest the court of its jurisdiction, it seems clear that violation of the procedural rule is of an entirely different character. The accused may waive the strictures of the rule expressly or, by his actions, toll the running of the period. Such characteristics are suggestive of authority rather than power. It is power that is the essence of jurisdiction.

While admittedly dealing with different rules and statutes, the Supreme Court of the United States has adopted exactly this posture in dealing with violations of speedy trial. In United States v. MacDonald, 435 U.S. 850, 863, 98 S.Ct. 1547, 1554, 56 L.Ed.2d 18, 29 (1978) Mr. Justice Blackmun stated for the court:

In sum, we decline to exacerbate pretrial delay be intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review.

This Court declines to issue the writ of prohibition on this basis as well as on the grounds referred to earlier.

WRIT DENIED.

BERANEK, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

I would issue a writ of prohibition on authority of State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978). Accordingly, I respectfully dissent.


author: ERVIN, Judge.

text:
    Nicholas J. CASSISI and Elayne E. Cassisi, individually and for the use and benefit of United States Fidelity & Guaranty Company, Appellants, v. The MAYTAG COMPANY, a Delaware Corporation, and McDuff Appliances, Inc., a Florida Corporation, Appellees.
    No. PP-125.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    As Modified on Denial of Rehearing April 28, 1981.

      Milton H. Baxley, II, Gainesville, for appellants.
    Robert M. Sharp and Bruce S. Bullock of Bullock, Sharp & Childs, Jacksonville, Dale 0. Morgan, Orlando, for appellees.
   ERVIN, Judge.

The Cassisis and their homeowner’s insurer appeal from a summary judgment entered against them in a products liability action founded on theories of strict liability, negligence, and breach of an implied warranty. The only issue for our determination is whether the lower court correctly ordered summary judgment on the ground the Cassisis’ proofs failed to show their damages were caused by a product in a defective condition at both the time of the accident and the time it was within the possession of the manufacturer or the retailer. Because we find genuine issues of material fact remain unresolved on that question, we reverse the summary judgment and remand the cause for further proceedings consistent with this opinion.

Mrs. Cassisi’s deposition testimony was that she had purchased the alleged offending product, a clothes dryer, from the retailer, McDuff Appliances; that during the 19 months of its use, no maintenance work or repairs had ever been performed on it; and that it had always been normally operated. On the date of the accident, Mrs. Cassisi left her home with the dryer in operation; upon her return, she found the house ravaged by fire.

While appellants’ expert, Clayton Morrison, a registered professional engineer, was unable to pinpoint a specific defect within the dryer (it had been badly damaged), it was his opinion that the fire had begun inside the dryer. When asked if a malfunction was inherent in the product, he responded:

My conclusion is that it was inherent ... because I have concluded that the fire originated within the product. That is the source from which the fire pattern and the heat source emanates, is from the dryer itself. Now, you must therefore conclude, that it was due to some incorrect functioning of a part that was internal within the machine that caused the fire to start.

He also surmised that the malfunction was caused by an electrical short within the dryer. Mr. Morrison, however, was otherwise uncertain in his responses. He was unable to negate other possible causes of the fire, such as the possibility that flames from a fire originating outside the dryer during the machine’s operation could have been drawn into its interior, causing the clothing to ignite; the possibility that the short could have occurred if either the circuit breakers were not functioning properly, or were not in existence; the possibility that the fire had been caused by a deterioration of the electrical wiring, such as its having been gnawed by rats; and, finally, the possibility that a defect could have occurred following the sale of the product to the Cassisis.

While appellants are not required to prove in a strict liability action that the manufacturer or retailer was negligent in the preparation or distribution of a product, they nevertheless have the burden, whether their case is founded in negligence, breach of an implied warranty, or strict liability, of establishing (1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) that it existed at the time the retailer or supplier parted possession with the product. 2 Frumer and Friedman, Products Liability, § 16A(4)(e)(i) at 3B-88, 89 (1980). Appellees argue that appellants’ burden was not met because their evidence failed to pinpoint a defect inside the clothes dryer either at the time of the accident or at the time the product left the control of the manufacturer or supplier.

How a plaintiff meets his burden in a products liability case and thereby establishes a submissible case for jury consideration has been the source of frequent litigation. Since Section 402A of the Restatement of Torts (Second) has been adopted in Florida by West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (1976), that section should be carefully consulted in order to ascertain if the alleged offending product is one which may be subject to the Restatement’s definition of defectiveness and, if so, to know what type of evidence must be presented to establish a submissible case of product defectiveness.

I. The Nature and Types of Product Defects

The black letter statement to Section 402A requires that a product be “in a defective condition unreasonably dangerous to the user or consumer or to his property . ... ” Thus, one who is injured while using a perfectly made axe or knife would have no right to a strict liability action against the manufacturer because the product that injured him was not defective. If the user is required to show only that the product was a factual cause in producing his injury, the manufacturer’s liability to the injured party would be, as stated by West, supra at 90, and by Professor Wade, that of an insurer.

On first impression, the Restatement may seem to require proof that the product be both defective and unreasonably dangerous. That, however, is not the case. Section 402A defines defective condition by requiring the product to- be “at the time it leaves the seller’s hands in a condition not contemplated by the ultimate consumer, which would be unreasonably dangerous to him.” See comment g. The words unreasonably dangerous are in turn defined as requiring the product to be “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” See comment i. It appears that the terms defective and unreasonably dangerous are redundant. Dean Prosser, the reporter for the Council, explains that the words “unreasonably dangerous” were added to foreclose the possibility that makers of products having the inherent potentiality for causing harm, such as drugs, whiskey, sugar, butter, etc., would become “automatically responsible for all the harm that such things do in the world.” Prosser, Strict Liability to the Consumer in Caiifornia, 18 Hastings L.J. 9, 23 (1966). Thus only “bad” whiskey, butter, etc., are subject to the Restatement’s standard.

Concerned with the ambiguity in the standard, a number of courts have held it is unnecessary for a plaintiff to prove that the product be both defective and unreasonably dangerous. See, e.g., Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Azzarello v. Black Brothers Co. Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Pyatt v. Engel Equipment Inc., 17 Ill.App.3d 1070, 309 N.E.2d 225 (1974). Cronin, for example, rejected a defendant’s instruction requesting that the plaintiff must establish not only that the product contained a defect which proximately caused his injuries, but also that such condition made the product unreasonably dangerous to the user or consumer. Cronin stated that the words “unreasonably dangerous” burden an injured plaintiff with an element which rings of negligence; that they are, when used in connection with the defective product terminology, susceptible to an interpretation which places a dual burden on the injured plaintiff to prove both that the product was defective and that it was unreasonably dangerous. 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d at 1162. The court concluded that a plaintiff satisfies his burden in a strict liability action as to any alleged product defect if he proves there was a defect in thé manufacture or design of the product and shows that the defect was the cause of his injuries. Id.

Notwithstanding the controversy by both academe and the courts over the proper test for determining a product’s defective condition, the standard for all product defects under Section 402A is the same: Were the ordinary consumer’s expectations frustrated by the product’s failure to perform under the circumstances in which it failed? This standard works reasonably well as to those types of product defects characterized as defects resulting from manufacturing flaws — those caused by a miscarriage in the manufacturing process which produces an unintended result. Thus, when a new product suddenly and unexpectedly malfunctions during the course of its normal operation, causing injury, the standard is relatively easy to apply.

The consumer expectation standard, though adequate to identify unintended manufactured defects, is more difficult to apply as to the other two generally recognized types of product defects: (1) design defects — those which are due to design error because unforeseen hazards accompany normal use of the product created according to design, and (2) defects resulting from misinformation or inadequate warnings. As to the last two defects, the standard is said to be a very vague and imprecise one because the ordinary consumer cannot be said to have expectations as to safety regarding many features of complexly made products that are purchased, such as the risk of fire from the way gasoline tanks are installed in cars, or the magnitude of risks involved in vehicles overturning. Due to the difficulty in applying the consumer expectation standard to all types of product defects, many thoughtful commentators have suggested that it should be rejected, particularly as to those defects arising from design, in favor of a test that would weigh the utility of the design versus the magnitude of the inherent risk.

Heeding the call for a different test, some courts have explicitly rejected or modified the Restatement standard as to design defects. See Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976); Barker v. Lull Engineering Co., supra, note 8; Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979). Barker qualified its pri- or holding in Cronin as to design defects only by applying to them the following two-pronged test:

First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. [This part of the test accepts the Restatement standard.] Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.

573 P.2d at 455-56.

The most significant aspect of the Barker rule is its second prong. Once the plaintiff establishes a prima facie case showing that his injuries were caused by a product’s design, the burden is shifted to the defendant to prove the design was not defective by presenting evidence of factors, such as the gravity of the danger posed by the challenged design, the feasibility of a safer design, the financial cost of the improved design, etc. 573 P.2d at 455.

Whether the Restatement standard should be augmented as in Barker is unnecessary for us to decide because we consider that appellants’ evidence of a defect — if one existed — was attributable to a manufacturing flaw, and was not one of design. Appellants’ expert indicated that the fire was caused by a malfunction in the clothes dryer. Such an occurrence differs either from the manufacturer’s intended result or from other units of the same product line. See generally the discussion in Barker v. Lull Engineering Co., supra, 573 P.2d at 446. This type of defect is altogether dissimilar from the kind intentionally manufactured according to design that causes injury, i. e., the unguarded trencher in Auburn Machine Works Co., Inc. v. Jones, supra, note 9, whose dangers were obvious. Moreover, the alleged offending product before us is not one required to be excepted from the standard, such as one that is unavoidably unsafe. See note 4, supra. We are not required, therefore, to consider the balancing approach taken by other courts in determining whether a product was defectively designed. Our primary concern with the frustration of the ordinary consumer’s expectations standard is its indiscriminate application to all types of design defects. The Restatement standard is particularly appropriate, however, to the facts before us. As stated in Phipps v. General Motors Corp., supra, 278 Md. 337, 363 A.2d at 959:

[T]here are those kinds of conditions which, whether caused by design or manufacture, can never be said to involve a reasonable risk. For example, the steering mechanism of a new automobile should not cause the car to swerve off the road, ... the driveshaft ... should not separate from the vehicle when it is driven in a normal manner, ...; the brakes ... should not suddenly fail ...; and the accelerator of a new automobile should not stick without warning, .... [citations omitted]

Thus, evidence of the nature of an accident itself may, under certain circumstances, give rise to a reasonable inference that the product was defective because the circumstances of the product’s failure may be such as to frustrate the ordinary consumer’s expectations of its continued performance.

Our next task is to decide whether, given Mr. Morrison’s testimony, and the evidence relating to the product’s malfunction during normal operating conditions, the appellants established a submissible case for jury consideration.

II. The Sufficiency of Proof as to The Existence of a Manufacturing Flaw Within The Product

As previously noted, Section 402A places the burden on a plaintiff to establish that his injuries were caused by a product which was in a defective condition at the time it left the hands of the seller. Section 402A, however, is otherwise of little help in explaining how the injured plaintiff meets this burden. Many cases involving strict liability actions resolve the defect-causation issue by employing the same proof requirements common to negligence — such as by requiring the plaintiff to show that his injuries were proximately caused by the alleged defect. A plaintiff may of course establish a submissible case by either direct or circumstantial evidence, the latter frequently accomplished through the opinion testimony of an expert that the product was defective. See, e. g., Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1969); Bollmeier v. Ford Motor Co., 130 Ill.App.2d 844, 265 N.E.2d 212 (1970) (opinion given through answer to hypothetical question based upon expert’s knowledge of similarly designed steering systems even though he' had not examined the steering mechanism in question); Carey v. General Motors Corp., 387 N.E.2d 583 (Mass.1979).

Difficulties arise, however, in those cases in which the plaintiff shows that there are several possible explanations for the accident, not all of which point to the product’s defective condition. The answer frequently applied to such situations is to hold that since plaintiff’s burden is to establish the presence of a defect at the time of the product’s manufacture, his burden is not met — even though he presents evidence of the product’s defective condition at the time of injury — without direct or circumstantial evidence showing the product was then defective. In effect, those decisions place on the plaintiff both the burden of producing evidence as well as the burden of persuasion as to that issue. To so hold, however, ignores the practical evidentiary problems which are common to products liability actions, and the policy considerations of Section 402A which were designed to assist the plaintiff in his quest for the jury’s consideration of the issues alleged.

Appellees’ primary argument is that appellants failed to establish a causal connection between their injuries and the alleged defect because they were unable to negate all alternative causes of the fire other than a defect within the dryer. There is authority for appellee’s position, and it is exemplified most clearly by the New Jersey rule, the leading case being Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 183-84, 199 A.2d 826, 829-30 (1964). Accord, Scanlon v. General Motors Corp., 65 N.J. 582, 591, 326 A.2d 673 (1974). In Jakubowski, the court stated that when neither direct evidence is available to establish that a product is defective, or other evidence permitting an inference that a dangerous condition existed in it prior to sale, plaintiff is then required “to negate other causes of the failure for which the defendant would not be responsible, in order to make it reasonable to infer that a dangerous condition existed at the time defendant had control.” Id. 42 N.J. at 183-84, 199 A.2d at 829-30.

If the Jakubowski rule were strictly applied to the facts in this case, it is clear that appellants could not recover since their circumstantial evidence of the product’s defect did not negate other causes of the accident for which the defendants would not be responsible. There is, however, one type of proof of product defect, which, from a given set of circumstances, aids a plaintiff in meeting his burden by creating a legal inference that the product was defective both at the time of the injury and at the time it was within the control of the supplier. This inference arises from the occurrence of the accident itself, and the case most often cited as so holding is Greco v. Bucciconi Engineering Co., 283 F.Supp. 978 (W.D.Pa.1967), aff’d, 407 F.2d 87 (3d Cir. 1969). We approve the Greco rule and apply it to the case now before us. That rule, applying Pennsylvania law, simply states that when a product malfunctions during normal operation, a legal inference, which is in effect a mirror reflection of the Restatement’s standard of product defectiveness, arises, and the injured plaintiff thereby establishes a prima facie case for jury consideration.

The facts recited in Greco were that the defendant engineering company had manufactured a mechanical piler, designed to stack and transport steel at a mill where the plaintiff was employed. Part of the apparatus was a set of mechanical fingers which extended to support piles of steel. On one occasion, the fingers suddenly retracted, and a falling pile of steel sheets severed a portion of the plaintiff’s right hand. At trial the plaintiff’s evidence showed that the piler was only part of a production line which was run on a compressed-air system, and operated from a control panel, neither of which was manufactured by the defendant. Plaintiff presented no expert testimony as to proof of defect. The defendant argued that the case should never have been submitted to the jury because there was no evidence from which the jury could infer that a defect existed in the piler rather than in the compressed-air system or in the control panel.

In entering judgment on the jury’s verdict in favor of plaintiff, and addressing itself to the defendant’s contention that the verdict was speculative, the Greco court stated: “A finding that the malfunction was prompted by a defect in the control panel or air system would be equally ‘speculative’; no evidence in support of these theories having been adduced. A malfunction evidences a defect, [citations omitted] The plaintiff is not obliged to negate alternative grounds of causation.” 283 F.Supp. at 984. In approving the lower court’s judgment, the Third Circuit Court of Appeals held that a “ ‘defective condition’ within the meaning of Section 402A [can be established] by proving ... the product functioned improperly in the absence of abnormal use and reasonable secondary causes.” 407 F.2d at 89-90. And the inference was extended to the time of sale as well as the time of injury, the court observing that' “there was ... sufficient evidence to satisfy reasonable and well balanced minds that a defect existed at the time of sale.” 407 F.2d at 91.

The Greco inference is somewhat analogous to the res ipsa loquitur inference applicable to negligence cases. While, as Prosser states, “[s]trictly speaking, since proof of negligence is not an issue, res ipsa loquitur has no application to strict liability; ... the inferences which are the core of the doctrine remain, and are no less applicable.” Prosser, Law of Torts, § 103 at 672-73 (4th ed. 1971). Both legal inferences are similar since they are based upon common sense assumptions that the occurrence of the accident is such that in the ordinary course of events it could not have happened — as to res ipsa, without the negligence of the person in control, Goodyear Tire & Rubber v. Hughes Supply, Inc., 358 So.2d 1339, 1341 (Fla.1978), and as to the other, without the product’s defective condition. Additionally, both inferences are founded upon strong policy considerations that aid a plaintiff in meeting his burden of proof when direct proof of negligence or product defectiveness is wanting. Indeed, the case giving birth to the doctrine of res ipsa, Byrne v. Boadle, 2 H & C 722, 159 Eng.Rep. 299 (Ex.1863), was heavily influenced by the plaintiff’s inability to extract an explanation from the defendant, as well as his incapacity to explain how the barrel which injured him fell from the second floor of Boadle’s warehouse. Later cases applying the res ipsa doctrine have done so when the evidence of the true explanation of the accident is more accessible to the defendant than to the plaintiff. See Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678 (1957); Appalachian Insurance Co. v. Knutson, 358 F.2d 679 (8th Cir. 1966); Wilson v. East St. Louis & Interurban Water Co., 295 Ill.App. 603, 15 N.E.2d 599 (1938).

The application of the Greco inference as an aid to a plaintiff’s establishing a prima facie case is perhaps most vividly portrayed by those cases in which the product was so badly damaged by a malfunction as to render impossible the plaintiff’s ability to point with specificity the exact one of several potentially dangerous conditions which caused the accident. Thus, in Bombardi v. Pochel’s Appliance & T. V. Co., 9 Wash.App. 797, 515 P.2d 540 (1973), the court held that a submissible case was demonstrated despite evidence showing that the offending product, a television set, had been in use for three years before the fire and repaired several times, as well as the absence of any expert examination of the product due to its being “completely consumed in the fire.” In so doing, the court applied the Greco inference, noting that once evidence of the malfunction was established, as well as of the product’s normal use, a prima facie case was made out, particularly since the manufacturer failed to present any evidence indicating that the cause of the fire was some event or condition for which it was not responsible. The court justified its decision by relying on comment c to Section 402A, stating that the purpose of strict liability is to ensure that the costs of injuries resulting from defective products be borne by their makers who put them into the channels of trade rather than by injured persons who ordinarily are powerless to protect themselves. 515 P.2d at 545-46.

In Liberty Mutual Insurance Co. v. Sears, Roebuck & Co., 35 Conn. 687, 406 A.2d 1254 (1979), the court relied upon Section 402A’s definition of product defectiveness to uphold liability. There a fire occurred in an apartment near a television set. The owners testified that during the six months the set was in the household, it had received normal use. The plaintiffs’ only expert witness was the chief of the local fire department who pinpointed the television set (described as a “mass of rubble”) as the cause of the fire, but did not identify a specific defect. The court concluded that such proof, “together with the evidence that the set had in fact malfunctioned and the jury’s knowledge from common experience that television sets, in normal use, do not self-ignite, was sufficient to establish the television set ... was defective.” 35 Conn. 687, 406 A.2d at 1257.

In the above two cases, the user’s testimony as to the product’s defective condition was corroborated by other witnesses. The Greco inference may arise independently of any corroboration, however, as the facts in McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971), demonstrate. There the plaintiff testified that he was driving his automobile at normal speeds when he heard a hissing sound like air escaping. His car and the trailer it was pulling suddenly left the roadway; both overturned and were destroyed by the ensuing fire. Because the tire was totally destroyed, the plaintiff relied solely on the circumstances of the accident to meet the burden of proof defect requirement of Section 402A. In response to the defendant’s argument that the tire could have been damaged as a result of its striking objects in the road, the court admitted this possibility; but, relying upon Greco, stated that the plaintiff was not required to exclude every possible source of sudden deflation, and that the occurrence of the malfunction was circumstantial evidence of a defect, sufficient to carry the case to a jury. Id. at 703.

The inference, moreover, has been applied to cases in which the malfunction was such as to cause the product’s disappearance. Thus, in Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972), an aircraft and its pilot were lost at sea. Just before the crash, a fisherman saw the plane on fire. The plaintiff was unable to negate the manufacturer’s suggested cause of the crash as being due to pilot disorientation during a difficult maneuver and its hypothesis that the cause of the fire was due to the plane’s venting fuel while descending in a stall with its afterburner on. In rejecting the defendant’s arguments, the court stated the “proof required in a strict liability case must be realistically tailored to the circumstances which caused the form of action to be created.” Id. at 639. It quoted with approval the rule proclaimed in MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676, 679 (1969) that “ ‘[p]roof of [a] specific defect in construction or design causing a mechanical malfunction is not an essential element . . . ’ ’’, and that once a machine malfunctions, ‘“it obviously lacks fitness regardless of the cause of the malfunction.’” Id.

While all of the above cases involved products either lost or destroyed, the inference is not dependent solely upon such facts. The piler in Greco was not so badly damaged as to make expert examination impossible, although none was offered as evidence. Cases applying the Greco inference frequently involve evidentiary facts comprising both an expert’s inspection of the product as well as proof of its malfunction, coupled with evidence of normal use. See, e. g., Winters v. Sears, Roebuck & Co., 554 S.W.2d 565 (2d Mo.App.1977); Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir. 1979); Farmer v. International Harvester Company, 97 Idaho 742, 553 P.2d 1306 (1976). At any event, the facts essential for the inference’s application are simply proof of the malfunction during normal operation.

Without the Greco inference, all of the above cases could have been decided by directing a verdict in favor of the defendant. Apart from the evidence showing the occurrence of a malfunction during the product’s normal operation, there was no proof offered that the particular alleged defective product was in fact defective. Moreover, there were a number of hypothetical causes of the accident for which the defendants would not have been responsible.

One commentator has suggested that a major consequence of the Greco inference is that it shifts the burden of producing evidence to the manufacturer once proof of the malfunction is established. Since the procedural effect of the Greco inference is identical to that of the res ipsa inference, it is more accurate to state that neither the burden of proof, nor any burden of producing evidence is cast upon the defendant “except in the very limited sense that if he fails to do so, he runs the risk that the jury may .. . find against him.” Prosser, supra, § 40 at 229. Thus, the practical result of the inference is that if the manufacturer wishes to avoid a jury’s consideration of the issues, it must offer evidence showing there are no genuine issues of material fact to be resolved by a jury — rather than suggest possible reasons for the product’s malfunction.

Considering the complexities of products litigation, and again the policy factors of Section 402A, such a solution is the better reasoned one since it is the manufacturer— rather than the plaintiff — which presumably is in the better position to produce the technical evidence required for determining the existence of a product’s defect. It is the one most familiar with the product, its expert’s intimate knowledge of the product and its production process gives it a greater advantage over the average plaintiff in analyzing a product’s failure. Additionally, the manufacturer should be able to trace the history of the product more easily than the plaintiff and to discover whether it was subjected to any abnormal handling.

Although we have observed the similarities between the two inferences, the important distinction between them is, of course, that of control. Before res ipsa may be applied, the injured plaintiff must prove the product causing his injury was under the exclusive control of the defendant. In a strict liability action, the fact that the defendant was not in control of the product when the injury occurred is obviously not a bar to the application of the product defectiveness inference — although it may be a factor for the jury to consider on the question whether the plaintiff’s own conduct in fact contributed to his injuries. Thus, products such as television sets, electric stoves, clothes washers or dryers, which can be activated by human agency simply by turning a switch or pushing a button, but which are otherwise self-operating, could conceivably lessen a reasonable belief that the person’s conduct was the cause of his injury. The user’s relationship with such products is somewhat passive and custodial in nature, and does not normally involve hazardous conduct or active participation by him. On the other hand, the fact that a car leaves the road while under the control of its driver may not necessarily give rise to the same generous inference of defect.

Nevertheless, in a strict liability action, the factor of control, insofar as it relates to the time elapsed from sale to injury, is but one of several circumstances to be considered in determining whether the product was defective while it was within the control of the manufacturer or distributor. In addition to the product’s age, other factors include the length of the product’s use, the severity of its use, the state of its repair, its expected useful life, and whether it was subjected to any abnormal operations. Farmer v. International Harvester Co., 97 Idaho 742, 553 P.2d 1306, 1312 (1976). Ordinarily the weight of such evidence is for the trier of fact. See Sochanski v. Sears, Roebuck & Co., 621 F.2d 67 (3d Cir. 1980); Liberty Mutual Insurance Co. v. Sears, Roebuck & Co., supra. If, however, the product which malfunctions is shown to be so old, so frequently repaired, and subjected to such rugged use, its condition may be such as to negate any inference that it was defective at the time of its manufacture — despite evidence revealing the product’s defective condition at the time of injury — because the ordinary consumer’s expectations could not reasonably be said to have been frustrated by the product’s failure under such circumstances. Cf. Kuisis v. Baldwin-Lima Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).

The Greco inference is particularly appropriate here. Combined with the expert’s testimony indicating that a malfunction in the dryer was the cause of the fire, Mrs. Cassisi testified that the product had never been serviced or repaired, and that it had been normally operated during its 19 months’ use. Given such evidence, it is immaterial that the plaintiffs failed to identify the specific cause of the malfunction since it is inferred that the malfunction itself, under such circumstances, is evidence of the product’s defective condition at both the time of the injury and at the time of the sale.

Reversed as to both defendants and remanded for further proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.

      . Wade, On the Nature of Strict Tort Liability For Products, 44 Miss.L.J. 825, 832 (1973).

      .Dean Keeton considers it unfortunate that Section 402A provides that as a basis of recovery it must be found that the product was both defective and unreasonably dangerous since the latter term “was meant only as a definition of defect.” Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 32 (1973). Another commentator states there is no difference between a standard based upon proof of defect and one based upon unreasonable danger since both are defined in terms of the ordinary expectations of the average consumer. Phillips, The Standard for Determining Defectiveness in Products Liability, 46 U. of Cincinnati L.Rev. 101, 102 (1977). Finally, Professor Wade views the term unreasonably dangerous as confusing since it may suggest to the jury the idea that “the product was unusually or extremely dangerous.” Wade, supra, note one, at 832.

      . The instruction requested in Cronin should be compared with Fla.Std. Jury Instr. (Civ.) PL-4, ' which defines a product as “defective if it is in a condition unreasonably dangerous to the user and if the product is expected to and does reach the user without substantial change affecting that condition.”

      . The above statement must be qualified as to two categories of products: (1) Unavoidably unsafe products — products “which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use ... ”, and which are accompanied by proper directions and warnings. See comment k. (2) Other products — although not unavoidably unsafe — that are also required to bear warnings or directions. See comment j. When proper warnings are attached to such products, they are excepted from the Restatement’s standard of defectiveness.

      . This standard is derived not from negligence principles, but from those in implied warranty. See Keeton, supra, note 2, at 36-37. As Dean Keeton states: “The plaintiff is no longer required to impugn the maker, but he is required to impugn the product.” Id. at 33. The Restatement’s standard should be compared to Section 672.314(3), Florida Statutes (1979) (UCC 2-314), requiring that in order for a product to be merchantable, it must be “fit for the ordinary purposes” for which it was intended.

      . Professor Wade has written, “[The] natural application [of the term ‘defective’] would be limited to the situation in which something went wrong in the manufacturing process, so that the article was defective in the sense that the manufacturer had not intended it to be in that condition.” Wade, supra, note one, at 831-32.

      .Keeton, supra, note 2, at 33-34.

      . Keeton, supra, note 2 at 37. Additionally, one court has stated that the Restatement standard is unfair because it treats a “consumer’s expectations as a ‘ceiling’ . . . rather that as a ‘floor.’ ” Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 451, note 7 (1978).

      . See, e.g., Wade, supra, note one, at 837-38; Fischer, Products Liability — The Meaning of Defect, 39 Mo.L.Rev. 339, 359 (1974); Dickerson, How Good Does a Product Have To Be?, 42 Ind.L.J. 301 (1967); Montgomery & Owen, Reflection on the Theory and Administration of Strict Liability for Defective Products, 27 S.C.L. Rev. 803 (1976). This balancing approach was implicitly approved by the Florida Supreme Court’s opinion rejecting the patent danger doctrine in Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167, 1170 (Fla.1979).

      . This statement requires qualification. A' product’s malfunction may of course be caused by a design defect. However, for the purposes of the product defectiveness inference, which we are adopting infra, when the plaintiffs evidence consists — as here — only of proof showing that a product malfunctioned during normal operation, it will be inferred that the defect was one of construction, rather than design, because a malfunction of a product is not a result ordinarily intended by the manufacturer.

      . Proximate causation is a term disparaged by some scholars as inappropriate to strict liability because of its negligence origins. See Parks, A. C. Watts-Fitzgerald, T. A. Watts-Fitzgerald, Products Liability, 33 Mi.L.Rev. 1185, 1206 (1979). See also Maleson, Negligence is Dead

        But Its Doctrines Rule Us From The Grave: A Proposal to Limit Defendant’s Responsibility in Strict Products Liability Actions Without Resort to Proximate Cause, 51 Temple L.Q. 1 (1978). The authors point out that the Restatement uses only the phrase “harm thereby caused.” They advocate instead of the words proximate cause, the term causation in fact. Maleson’s primary argument against the use of the proximate causation terminology in strict liability actions is that it “is a fault doctrine meaning proximate fault rather than proximate causation because the doctrine does not concern causation but is used instead to limit responsibility.” Id. at 17. She proposes that the courts employ a duty-risk analysis to such issues, whereby it is assumed that a manufacturer is under a duty to provide nondefective products, and that such duty extends to all persons who may be injured by defective products. The duty would be limited by determining in each individual case whether the particular risk which caused the injury was encompassed within the manufacturer’s duty. If it is so determined, the only relevant inquiries are whether the product was defective, and if so, was there a factual causal connection between the defective product and the injury? Id. at 23. For example, the author states that once it is proven that a product is in a defective condition at the time it leaves the manufacturer’s hands, and that the defect was the factual cause of an injury, any purported intervening negligence of third persons (e. g., the failure of an automobile owner to maintain properly a brake pedal defectively manufactured which caused injury to the plaintiff) should not excuse the manufacturer from liability for injuries caused by the defect because negligent conduct on the part of third persons is one of the risks inherent in the marketing of a defective product. Id. at 22-23.

      . See Thompson v. Trane Co., 500 P.2d 1329 (Okla.1972); State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966); St. Paul Mercury Insurance Co. v. Jeep Corp., 175 Mont. 69, 572 P.2d 204 (1977); Weatherford v. H. K. Porter, Inc., 560 S.W.2d 31 (Mo.App.1977).

      . See Hazard, Science and the Product Liability Claim, 54 A.B.A.J. 981, 982-86 (1968).

      . Elimination of alternative causes is a generally accepted type of proof for establishing a product’s defect. Other types of proofs include the nature of the product, the pattern of the accident, the life history of the product, evidence of similar products and uses, and the happening of the accident. Rheingold, Proof of Defect in Product Liability Cases, 38 Tenn.L. Rev. 325, 327-39 (1971).

      . The above rule would appear to have been modified by the more recently decided opinion of the New Jersey Supreme Court in Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975), in which the court held that the evidence (showing that an automobile, driven approximately 11,000 miles at the time of the accident, suddenly left the roadway due to the steering mechanism’s locking and its failure to respond to the user’s efforts to steer it) tended to negate other possible causes of the accident, and indicated that more likely than not a critical malfunction of the steering system occurred.

      . In a perceptive law review note, it was observed that if a plaintiff has the burden of producing evidence of a defect in a product which malfunctions, he would generally be required to introduce the results of expert analysis as to the cause of its failure, as well as evidence tending to show that it would be improbable for the defect to arise after the product left the manufacturer’s hands. Note, Products Liability and the Burden of Proof, 21 Stan. L.Rev. 1777, 1782 (1969). Normally, the first alternative would require expert analysis of the defect (often at substantial cost), while the second would require that the plaintiff trace the history of the product after it left the factory. Id. In addition to the cost and difficulty of obtaining competent expert analysis, and of tracing the history of the product prior to sale, when it is considered that the product is often destroyed in the accident, it appears that sustaining the plaintiffs burden under such circumstances is a most formidable task and serves to defeat the goals sought to be achieved by the move to strict liability. Id.

      The following policy considerations favoring the imposition of strict liability are said to have motivated the transition: (1) risk spreading, (2) safety incentive, (3) frustration of consumer expectations, and (4) the relaxation of proof problems. Fischer, supra, note 9, at 339-340.

      . See Goodyear Tire & Rubber v. Hughes Supply, Inc., supra, at 1341.

      . See Wojciechowski v. Long-Airdox Div. of Marmon Group, Inc., 488 F.2d 1111, 1116 (3d Cir. 1973).

      .There was expert testimony, based upon an expert’s examination of a model identical to the destroyed set, that several of the product’s component parts were defectively manufactured and could have malfunctioned. See 9 Wash.App. 797, 515 P.2d at 544. Compare such testimony with that in Bollmeier v. Ford Motor Co., supra.

      . This was one of the specific reasons given by West for adopting Section 402A. See West v. Caterpillar Tractor Company, Inc., supra, 336 So.2d at 92.

      . The user’s testimony of the circumstances of the accident is a generally accepted method of evidence for establishing proof of a defect. See Stewart v. Budget Rent-A-Car Corporation, 52 Haw. 71, 470 P.2d 240 (1970).

      .Even the proof requirements common to negligence or warranty actions do not require that a plaintiff establish a specific product defect since the proof of defect can be established by reasonable inferences from the circumstances. See McCarthy v. Florida Ladder Co., 295 So.2d 707, 709-710 (Fia.2d DCA 1974).

      . Note, supra, note 15, at 1784.

      . Id. at 1784-85.

      . There are, of course, exceptions to the requirement that the defendant have exclusive control of the product for the res ipsa doctrine to apply. In such cases, the inference of negligence is justified because of the nature of the product and the short lapse of time from its delivery to the plaintiff and the occurrence of the accident. See, e. g., Starke Coca Cola Co. v. Carrington, 159 Fla. 718, 32 So.2d 583 (1947) (exploding bottle); Ewer v. Goodyear Tire and Rubber Co., 4 Wash.App. 152, 480 P.2d 260 (1971) (tire exploded while being mounted). The type of product is immaterial to the question whether the Greco inference applies, provided it is one subject to Section 402A’s standard for defectiveness. Additionally, as observed infra, lapse of time between the sale of the product and the injury is but one of several factors to be considered in determining whether the latter inference should be imposed.
      While the tire in Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977), rev’d Goodyear Tire & Rubber v. Hughes Supply,

        Inc., supra, which blew out after 4,000 miles of use, was not favored with the res ipsa inference because of the attenuated degree of control by its manufacturer, it would most certainly be subject to the Greco inference of product defectiveness. Compare the facts in Hughes with those in McCann v. Atlas Supply Co., supra.

      . Contributory negligence is of course not a bar to a strict liability action — or to a negligence action in Florida — but it may be a defense if based on grounds other than the failure of the user to discover or to guard against the existence of a defect. See West v. Caterpillar Tractor Co., Inc., supra, 336 So.2d at 92.

      . See generally discussion in note, Proof of Defect in a Strict Products Liability Case, 22 Maine L.Rev. 189, 195 (1970), arguing that the res ipsa inference is inapplicable to such circumstances because of the control the driver assumes in operating a vehicle. Another commentator, Rheingold, suggests there is less cause for the application of the product defectiveness inference to a situation in which an automobile with 50,000 miles on its odometer suddenly veers off the road than to an incident in which a giant machine unexpectedly descends upon a person, because, as to the former, there are too many possible reasons for explaining the accident, and its happening is not out of the ordinary. Rheingold, supra note 13, at 338. Yet, in strict liability actions, a number of cases have held that a plaintiff need only prove or allege that he was normally operating the vehicle at the time it left the road for the inference of product defectiveness to arise. See Vanek v. Kirby, 253 Ore. 494, 450 P.2d 778 (1969); Stewart v. Budget Rent-A-Car Corp., supra, hote 21; Tweedy v. Wright, 64111.2d 570, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976).

      .Compare the abnormal operation factor with the requirement that before the res ipsa doctrine may be applied in a negligence action, the product must not have been improperly handled after it left the possession of the retailer. Groves v. Florida Coca-Cola Bottling Co., 40 So.2d 128 (Fla.1949); Coca-Cola Bottling Company v. Clark, 299 So.2d 78 (Fla. 1st DCA 1974).

      . The rule which we adopt today does not conflict with that stated in Royal v. Black and Decker Mfg. Co., 205 So.2d 307, 309 (Fla. 3d DCA 1967), or in West v. Caterpillar Tractor Company, Inc., supra, at 86, requiring “that the plaintiff’s injury must have been caused by some defect in the product.” Neither of those cases stated that there need be proof of a specific defect nor did they discuss the method or quantum of proof necessary to establish a defect. Finally, both cases are distinguishable from the case at bar since neither involved an injury which was caused by a product’s malfunction; rather, they involved injuries which were attributable to a product’s design.

      . The retailer may of course be entitled to indemnification from the active wrongdoer if the defect is latent and the retailer neither knew, nor should have known of the defect. Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978).


author: RYDER, Judge.

text:
    Bruce A. WORLEY and Stanley Worley, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-1010, 80-1011.
    District Court of Appeal of Florida, Second District.
    March 11, 1981.
    Rehearing Denied April 21, 1981.

      Jerry Hill, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Bar-tow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., for appellee.
   RYDER, Judge.

Stanley Worley was charged and convicted in circuit court of battery upon a law enforcement officer and petit theft. By stipulation of the parties, Stanley’s brother, Bruce, was also tried at the same time. However, Bruce was only charged with the crime of assaulting a law enforcement officer, a misdemeanor. Bruce was also convicted as charged. Their appeals have been consolidated for consideration by this court.

Stanley Worley maintains that his conviction for petit theft must be reversed. He contends that the court erred in failing to instruct the jury that an essential element of petit theft is the intent to permanently deprive the owner of the property. However, the error, if any, was not preserved for appeal. To assign as error the giving or failure to give an instruction, a defendant must object to the instruction and state the grounds for his objection. Fla.R.Crim.P. 3.390. The record does not reveal any objection to the failure to instruct the jury on the intent to permanently deprive. Therefore, Stanley Worley’s conviction and sentence is affirmed.

Bruce Worley argues that the circuit court was without jurisdiction to try him on the misdemeanor charge. We agree.

The county court has jurisdiction in all misdemeanor cases not cognizable in the circuit court. Section 34.01, Florida Statutes (1979). Section 26.012(2)(d), Florida Statutes (1979), gives the circuit court original exclusive jurisdiction of “all misdemeanors arising out of the same circumstances as a felony which is also charged.” The State’s argument that the circuit court had jurisdiction in the instant case because the misdemeanor charge against Bruce Worley “arose out of the same circumstances” as the felony charge against Stanley Worley is unpersuasive. Although we have been unable to find any case addressing the question, we construe section 26.012(2)(d), to mean that the circuit court has jurisdiction over a misdemeanor only when the misdemeanor and the felony arising out of the same circumstances are committed by the same person.

The State’s argument that jurisdiction was conferred on the circuit court by defense counsel’s stipulation is without merit. The law is well settled that jurisdiction cannot be conferred by consent. Sclafani v. County of Dade, 323 So.2d 675 (Fla. 3d DCA 1975).

Accordingly, Bruce Worley’s conviction is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

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


author: PER CURIAM. MOORE, Judge,

text:
    Michael McCRARY, Appellant, v. Ken or Pat McCRARY and Maria G. McCrary, a/k/a Maria G. McCrary Caponey, Appellees. Maria G. McCRARY, a/k/a Maria G. McCrary Caponey, Appellant, v. Ken or Pat McCRARY and Michael McCrary, Appellees.
    Nos. 78-2736, 79-1191.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied May 7, 1981.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for Michael McCrary.
    Thomas B. Duff of Duff & Brown and Jeanne Heyward, Miami, for Maria G. McCrary.
   PER CURIAM.

This is an appeal from a final judgment awarding the appellee, Maria G. McCrary, a judgment in the amount of $84,696.54 against the appellant, Michael McCrary, on her third party claim for indemnification. The court received conflicting evidence from each of the parties as to the circumstances giving rise to Mrs. McCrary’s claim for indemnification, and we believe there is sufficient evidence in the record to sustain the trial court’s judgment in Mrs. McCrary’s favor. However, we do conclude that the trial court erred as to the amount of the award. Mrs. McCrary sought to be indemnified in the amount of $63,395.00 in her pleadings and the proof at trial did not support an award for the higher amount.

Accordingly, the judgment against Michael McCrary is affirmed but the cause is remanded with instructions that judgment be reduced to $63,395.00.

ANSTEAD and HURLEY, JJ., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent as I do not feel that either the proof or the pleadings support a legal theory of indemnification. Accordingly, I would reverse the judgment in its entirety.


text:
    Nan LIU, Appellant, v. Philip J. MANDINA, Appellee.
    No. 80-1255.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied May 5, 1981.

      Jerome F. Pollock, Hollywood, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment in favor of the defendant on a complaint for malicious prosecution.

One of the six essential elements of malicious prosecution is the bona fide termination of a criminal procedure in plaintiff’s favor. Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).

Where the nolle prosequi is obtained by the accused upon a promise of restitution, it is not a bona fide termination in plaintiff’s favor. Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3rd DCA 1980).

In this case it appears that there is still a genuine issue whether the nolle prosequi had been obtained as a result of a promise to pay. Assistant State Attorney Forman and Attorney Stone differ. It is defendant’s burden to establish that the decision to nolle prosequi was based solely on restitution.

There being a genuine issue of a material fact, we reverse.

REVERSED.

MOORE and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.


text:
    In re the Marriage of Luz Joson PANGANIBAN, Appellant, v. Leo PANGANIBAN, Appellee.
    No. 80-1360.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    Rehearing Denied April 21, 1981.

      Wayne 0. Smith of Wallace, Smith & Finek, P. A., St. Petersburg, for appellant.
    James E. Deakyne, Jr., St. Petersburg, for appellee.
   RYDER, Judge.

Luz Panganiban appeals the order denying her motion for contempt for failure to pay child support, alleging that the court had no authority to therein declare child support arrearages to be null and void. We affirm.

The final judgment of dissolution below provided for the payment of child support in the amount of $25.00 per week per child for four children. Appellee paid $400.00 per month thereafter as child support. In November 1979, two years after final judgment, appellant moved for an order of contempt, alleging an arrearage of $300.00. The trial court found an arrearage of $150.00 and ordered appellee on January 30, 1980 to pay that amount in addition to regular support payments.

In February of 1980, appellant moved for an order correcting the prior order, alleging that it did not take into account that there are 4ys weeks in a month rather than four. Appellant requested an award of $990.00, representing a shortage for the entire period since final judgment. The court denied the motion for contempt, found the lower payments to be a mistake to which appellant waived any remedy by acquiescence, and nullified the arrearage.

Child support is normally the vested right of the child which the court has no power to modify when past due. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Petrucci v. Petrucci, 252 So.2d 867 (Fla.3d DCA 1971). The court may refuse to hold a party in contempt for failure to pay an arrearage, but may entirely refuse to enforce payment of past due child support only under certain exceptions. See Smithwick v. Smithwick, 343 So.2d 945 (Fla.3d DCA 1977). Those exceptions are in the nature of laches, estoppel, waiver, reprehensible conduct upon the part of the parent having custody or other strong equitable reasons. See Teta v. Teta, 297 So.2d 642 (Fla.1st DCA 1974); Brown v. Brown, 108 So.2d 492 (Fla.2d DCA 1959).

The classic example of this power to refuse to enforce accrued child support is when the custodial parent has refused to comply with the visitation provisions of the court order. See Warrick v. Hender, 198 So.2d 348 (Fla.4th DCA 1967); Denton v. Denton, 147 So.2d 545 (Fla.2d DCA 1962). While appellant’s conduct does not approach the reprehensible nature of refusal of visitation, we hold that the trial court acted within its discretion in finding a waiver of the past due payments. Appellant previously moved for contempt, alleging an amount due, and made no suggestion of the arrearage now claimed. The acceptance of a lower payment over a period of years without complaint adds further support to the trial court’s finding of a waiver of the amount in dispute. We thus hold that no error appears in the order below.

AFFIRMED.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    Paul RANSOM a/k/a Benjamin Hershall, Appellant, v. STATE of Florida, Appellee.
    No. 79-898.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Denied May 6, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

At the charge conference the defendant requested that the jury be instructed on the penalties. The court denied the request. The cause is reversed and remanded for new trial under directions of Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied, February 27, 1981.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Sandra BRENNAN, Appellant, v. The INSURANCE COMPANY OF FLORIDA and Bonnie Easterling, Appellees.
    No. 79-2600.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Denied May 7, 1981.
    Maurice Graham of Brimmell & Graham, P.A., Fort Lauderdale, for appellant.
    James W. Flanagan of Ronald E. Solomon, P.A., Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Appellee Bonnie Easterling sold a mobile home to appellant Sandra Brennan for $10,-500.00, $5,000.00 in cash and the balance to be paid approximately four months later. Although she was not required to do so by the contract, appellant obtained a $12,-000.00 fire insurance policy with appellee Insurance Company of Florida, which showed Easterling as a lienholder. Unbeknown to Brennan, Easterling also obtained a fire insurance policy on the mobile home with American Fidelity Fire Insurance Company. Prior to the date of final payment the mobile home and contents were destroyed by fire. American Fidelity paid Easterling $5,000.00 on her policy.

Brennan claimed the full amount of the policy from Insurance Company of Florida (hereafter referred to as ICF) and, upon its refusal to pay, Brennan sued both ICF and Easterling, claiming the entire policy proceeds. After some negotiations, ICF and Brennan entered into a settlement agreement whereby ICF would pay Brennan $10,000.00 and Brennan would dismiss her claim against ICF with prejudice. However, before paying the sum to Brennan, ICF filed a motion stating that there was an ongoing dispute between Brennan and Easterling and requesting the court to order the proceeds of the settlement paid into the court registry so Brennan and Easter-ling could litigate their claim; then ICF would be released by Brennan and be dismissed with prejudice from the action. From the court’s final summary judgment for ICF granting ICF the relief it asked for in that motion Brennan perfected this appeal.

Brennan contends that she had an agreement with ICF that the $10,000.00 be paid directly to her and that ICF breached that agreement by prevailing upon the court to direct it to pay the money into the court registry. Brennan further maintains that ICF knew of Easterling’s claim when it entered into the agreement.

On the other hand, ICF contends it did not know of Easterling’s claim until after the agreement was concluded. When it learned of that claim it appeared to ICF that the proper procedure would be to place the funds in the court registry and let the court resolve any dispute between Brennan and Easterling.

It seems to us that ICF was charged with knowledge of Easterling’s claim prior to entering into the agreement with Brennan. The ICF policy, which was the subject matter of the lawsuit, showed Easterling as a lienholder. In addition, Brennan made Easterling a party defendant in the suit and alleged in the complaint that although Easterling recovered $5,000.00 from American Fidelity Easterling also claimed she was entitled to part of the proceeds from the ICF policy. Thus, it appears that ICF entered into an agreement to pay Brennan $10,000.00 in settlement of Brennan’s claim against it with knowledge of Easterling’s claim. Accordingly, there was no justification for asking the court to require the proceeds to be paid into the court registry. Having made the agreement with Brennan, ICF had to deal with Easterling separately.

In view of the foregoing, we hold the trial court erred in requiring the proceeds of the settlement to be paid into the registry of the court rather than to Brennan. Accordingly, the final summary judgment appealed from is reversed and this cause is remanded with directions to enter judgment for appellant in the amount of $10,-000.00.

REVERSED AND REMANDED, with directions.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Sydney ADLER, as Trustee, Appellant, v. SCOTT ELECTRIC COMPANY, Appellee.
    No. 80-1430.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Rehearing Denied April 21, 1981.
    Herb Blessing, Bradenton, for appellant.
    D. Turner Matthews, Bradenton, for ap-pellee.
   PER CURIAM.

Reversed on authority of Kandell v. Patten, 375 So.2d 356 (Fla. 4th DCA 1979).

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