author: PER CURIAM. OTT, Judge,

text:
    STATE of Florida, Appellant, v. Timothy James LASSWELL, Appellee.
    No. 78-2307.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Rehearing Denied July 11, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Manuel M. Garcia, Tampa, for appellee.
   PER CURIAM.

The state charged appellee with possession of more than five grams of marijuana. He filed a motion to quash a search warrant and to suppress the marijuana and other evidence seized thereunder. Following a hearing at which the court heard no testimony, it granted the motion. This is an appeal from the order of suppression.

Circuit Judge J. C. Cheatwood issued the search warrant on August 4, 1978. The affidavit upon which Judge Cheatwood based the warrant was signed by a narcotics agent of the Hillsborough County Sheriff’s Department on the same date. The affidavit read as follows:

That your affiant was previously employed with the Pinellas County Sheriff’s office from 1 June 1973 until 30 October 1974. That your affiant is a member of the Hillsborough County Sheriff’s office and has been so employed since 1 November 1974. That your affiant has been assigned to the Inspectional Services Division as a narcotics investigator since 1 May 1976 and has investigated and arrested persons for violation of the Florida Comprehensive Drug Abuse Prevention and Control Act in his capacity as a narcotics investigator. Your affiant has also been a participant in narcotics arrest in his employment with the Pinellas County Sheriffs office from 1 June 1973 until 30 October 1974 and in his employment with the Hillsborough County Sheriff’s office since 1 November 1974. Your affiant has participated in the execution of numerous search warrants for narcotics, marijuana, and dangerous drugs, which has resulted in the arrest of persons violating the Florida Comprehensive Drug Abuse Prevention and Control Act. Moreover, your affiant is a graduate of the United States Department of Justice, Drug Enforcement Administration Narcotics School. Your affiant is personally familiar with the illegal possession, delivery and sale of narcotics, marijuana, and dangerous drugs in Hillsborough County, Florida. During the week of 30 July 1978, your affiant was contacted by confidential informant number 78-530, hereafter referred to as confidential informant. Said confidential informant advised your affi-ant that a white male known to confidential informant as Timothy J. Lasswell resides in an apartment as described in Exhibit “A” of the search warrant and is a dealer in marijuana which is being kept in the aforementioned residence.
During the week of 30 July 1978, your affiant was advised by confidential informant that during the week of 30 July 1978 said confidential informant was personally within the aforementioned residence and observed a quantity of marijuana within said residence and that the said marijuana was in the possession and control of the white male, known to said confidential informant as Timothy J. Las-well.
During the week of 30 July 1978, your affiant was advised by said confidential informant that the aforementioned apartment was apartment number 215 and is located on the east end of the first building west of Grove Terrace and south of Inverness Lane. Said building being light gold in color with dark brown trim and having a dark brown door which faces north. Said confidential informant advised that the aforementioned apartment has the address of 5411 Inverness Lane, Apartment 215, Temple Terrace, Hillsborough County, Florida.
During the week of 30 July 1978, your affiant accompanied by confidential informant proceeded to the area of the Candlewick Apartment Complex. Said confidential informant pointed out the residence in which the confidential informant had observed the marijuana during the week of 30 July 1978. Your affiant personally observed the aforementioned building and apartment to be as described by the said confidential informant.
During the week of 30 July 1978, your affiant was advised by confidential informant that the white male Timothy J. Lasswell operated a 1973 Chevrolet two door vehicle, with Florida registration ANW-762.
During the week of 30 July 1978, your affiant through' independent investigation determined that Florida registration ANW-762 was in the name of a white male Timothy J. Lasswell.
Based on the above listed information, your affiant has probable cause to believe and does believe that the residence described in Exhibit “A” is being utilized as a storehouse for marijuana.
Your affiant offers the following to show the trustworthiness and reliability of the said confidential informant.
1. Your affiant personally accompanied confidential informant 78-530 to the residence described in Exhibit “A” and the confidential informant 78-530 pointed out the residence as the residence of a white male Timothy J. Lass-well.
2. Your affiant obtained the Florida registration ANW-762 from confidential informant which proved to be in the name of a white male Timothy J. Lasswell.
3. Your affiant has been personally acquainted with confidential informant 78-530 for approximately one (1) month and information provided by said confidential informant 78-530 was found to be true and correct.
4. Confidential informant 78-530 has provided information in the past which has resulted in the pending arrest of one (1) individual for violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: delivery of marijuana.
5. The identity of the confidential informant is being withheld at this time but will be revealed to the judge issuing this warrant if need be.
6. Confidential informant 78-530 is familiar with marijuana and can readily recognize it in its various forms.
7. That confidential informant 78-530 has been inside said apartment and has advised affiant that the marijuana is kept by the said Tim Lasswell in the front bedroom thereof.

This affidavit adequately fulfilled the legal requirements necessary to obtain a search warrant. The information therein was sufficiently current. House v. State, 323 So.2d 659 (Fla. 1st DCA 1975). The reliance upon the hearsay statements of the confidential informant was proper because the affidavit met the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). First the affidavit showed that the informant had personally observed the marijuana in Lass-well’s apartment. Second the credibility of the informant was indicated by the fact that he had furnished reliable information in the past. Moreover, the affiant’s own investigation verified some of the information supplied by the informant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). No one can doubt that the contents of the affidavit demonstrated probable cause. See State v. Compton, 301 So.2d 810 (Fla. 2d DCA 1974); State v. Lewis, 225 So.2d 170 (Fla. 2d DCA 1969).

The basis upon which the lower court quashed the search warrant was its belief that the pertinent assertions in the affidavit were “mere conclusory statements unsupported by basic factual data to objectively show and illustrate how the informant knew or could have known that the substance he allegedly observed in the apartment was actually marijuana or that Defendant was a dealer in marijuana or how the affiant knew or could have known that the informant was familiar with and could recognize marijuana in its various forms.”

In the absence of an articulation of facts to support it, the bald statement that Lasswell was a dealer in marijuana must be considered to be a conclusion and therefore disregarded. Spinelli v. United States. However, there is nothing else in the affidavit which could properly be characterized as a conclusion. The lower court apparently felt that the police affiant’s statement that the informant was familiar with marijuana constituted a conclusion. To the contrary, we believe that the flat statement by the narcotics’ agent that the informant “is familiar with marijuana and can readily recognize it in its various forms” carried with it the necessary implication that the affiant had, firsthand knowledge that this was so. In any event, the further statement that the informant had previously provided accurate information pertaining to the delivery of marijuana substantiated his familiarity with that substance. In today’s society an encounter with marijuana is not the unique experience it once may have been. Measured by any common sense standard, the affidavit sufficiently demonstrated that the informant knew what marijuana was when he saw it.

Courts should not scrutinize affidavits for search warrants for technical niceties. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). The United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), cautioned:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

Since the affidavit in this case formed a legally sufficient predicate for the issuance of the search warrant, we reverse the order suppressing the evidence obtained through the execution of the warrant.

GRIMES, C. J., and DANAHY, J., concur.

OTT, J., dissents with opinion.

OTT, Judge,

dissenting.

I would affirm the order of the trial court granting the motion to suppress and therefore dissent from the majority opinion.

After a hearing on the motion to suppress, the lower court determined that the affidavit furnishing the foundation fo the search warrant by which the evidence in question was seized did not comply with the requirements of law. The affidavit is quite wordy. At first blush — such as upon inspection by the issuing circuit judge — it appears to be quite detailed. More careful analysis, however, — such as by the circuit judge on the motion to suppress — reveals that the affidavit falls far short of the long established legal prerequisites for the issuance of a warrant to search a citizen’s home. Section 933.18, Florida Statutes, explicitly prohibits the issuance of a warrant to search a private dwelling except on sworn proof by the affidavit of a creditable witness that he has reason to believe that [the law relating to narcotics or drug abuse is being violated therein], and such affidavit must set forth the facts on which the reason for belief is based. An affidavit which sets forth mere conclusions is insufficient and evidence seized pursuant to a warrant issued in reliance on such an affidavit must be suppressed. Weisberg v. State, 348 So.2d 385 (Fla. 2d DCA 1977).

The majority, like the magistrate, seems to have been overwhelmed by the verbiage and therefore concludes: “No one can doubt that the contents of the affidavit demonstrated probable cause.” (See p. 670)

The material allegations in the search warrant may be separated into two categories: First, those by the officer as to the facts supporting a finding of probable cause to believe a crime has been committed; second, those as to the reliability of a confidential informant known less than a month, who is supplying those facts.

After stripping out the incidentals such as automobile description, tag number, registration information, street addresses, apartment location and description, etc., we are left with the following two allegations concerning the commission of a crime:

1. “[S]aid confidential informant advised your affiant that a white male known to confidential informant as Timothy J. Lasswell . . is a dealer in marijuana .
[Even the majority concedes this is pure conclusion and must be disregarded.]
2. “[Y]our affiant was advised by confidential informant that said confidential informant . . . personally . . observed a quantity of marijuana ... in the possession and control of Timothy J. Lasswell.”
[This statement is pure conclusion as to “possession and control.” As to “marijuana” it fails to allege any specific quantity or estimate and, even worse, will require subsequent allegations to establish the ability of the confidential informant to reliably identify marijuana.]

Concerning the reliability of the confidential informant and his expertise, the affidavit contains the following two allegations:

1. “3. Your affiant has been personally acquainted with confidential informant 78-530 for approximately one (1) month and information provided by said confidential informant 78-350 was found to be true and correct.”
[Note: This, so far as the affidavit reveals, presumably refers to information about a street address, automobile description and registration or name of the owner of the auto and the location and description of his apartment, etc., but not as to experience or training in the identification of marijuana or any other contraband.]
2. “4. Confidential informant 78-530 has provided information in the past which has resulted in the pending arrest of one (1) individual for violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to wit: delivery of marijuana.”
[Note: This tells us nothing about what the “information” consisted of, or whether or not the “pending arrest” will ever be made, let alone lead to a conviction or establish informant’s reliability and expertise.]

Under the above circumstances I cannot fault the circuit judge for having concluded that the affidavit was improvidently issued on the basis of pure conclusions rather than demonstrable facts.

      . To the extent that weight should be given to findings of fact, deference must be accorded to the conclusions of the issuing magistrate rather than the judge who reviews the affidavit on a motion to quash. Bastida v. Henderson, 487 F.2d 860 (5th Cir. 1973); State v. Brainard, 376 So.2d 864 (Fla. 2d DCA 1979).


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Scott M. SPURLING, Appellee.
    No. 79-1820.
    District Court of Appeal of Florida, Second District.
    June 6, 1980.
    Rehearing Denied July 11, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and Jack D. Hoogewind, Asst. Public Defender, Dade City, for appellee.
   CAMPBELL, Judge.

The state appeals the trial court’s order granting defendant’s motion to suppress tangible evidence. The trial court agreed with defendant’s contention that because the initial stop was improper, his subsequent arrest was tainted and could not justify a search incident thereto. We find that there was sufficient basis for the deputy sheriff to stop appellant and, therefore, reverse.

The facts are undisputed, the only testimony at the hearing on the motion to suppress being that of the arresting officer, Deputy Joe Moore of the Pasco County Sheriff’s Office. The sheriff’s office had received numerous complaints from the management of the Stardust Bowling Lanes regarding juveniles and adults loitering in their parking lot while consuming alcoholic beverages or using drugs. The management requested the sheriff’s office to increase their patrol of the grounds around the bowling lanes for the purpose of preventing such loitering. Deputy Moore had received such a complaint from the management on the night before the incident involved here.

On the night in question at approximately 10:20 p. m., Deputy Moore was on a routine patrol around the Stardust Bowling Lanes. He was alone, in uniform and driving a marked sheriff’s automobile. After first driving around the parking lot on the west side of the building, the deputy continued his patrol by driving to the parking lot on the east side of the building, where he observed the defendant urinating on the side of a truck. Defendant was standing on the driver’s side and another male was standing on the passenger’s side of the truck. The deputy did not know at that time that the truck belonged to the defendant. While the defendant finished urinating, the deputy got out of his vehicle and requested the passenger to step over to his patrol car in order to question him for the purpose of filling out a field interrogation report (FIR).

After completing the report in regard to the passenger, the defendant approached the patrol car, and the deputy proceeded to obtain from him information to complete the report. At that point the deputy observed that the defendant was unstable on his feet, his speech was slurred and he smelled of alcohol. He also recognized the defendant as a person on whom he had completed an FIR approximately two weeks previously. He recalled having encountered no problems with him at that time. On that previous occasion, the defendant was not in or around his truck.

After completing most of the FIR on defendant, the deputy attempted to obtain the truck’s identification number, not knowing whether or not it had been stolen. He walked to the passenger side and shined his flashlight inside, at which point defendant shouted, “Get the hell away from my truck!” This remark was loud enough to be heard in the parking lot. The deputy ignored the remark, however, and went to the other side of the truck, still attempting to obtain an identification number. He was unsuccessful and returned to the passenger side, where he was again greeted by defendant’s shouting at him in profane, abusive and derogatory language. This was loud enough to capture the attention of a group of people entering the bowling lanes. As the deputy turned to confront him, defendant placed his hand on the deputy’s shoulder. At that point the defendant was arrested for disorderly intoxication. When the deputy conducted a pat down search before placing defendant in the patrol car, he discovered approximately seventy-one grams of suspected marijuana in the crotch of defendant’s pants.

The sole question at the hearing on the motion to suppress the marijuana was whether the deputy was justified in stopping and questioning the defendant under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Florida’s “Stop and Frisk Law”, Section 901.151, Florida Statutes (1977). The trial court was of the opinion that this court’s decision in Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976), rather than our decision in Boal v. State, 368 So.2d 71 (Fla. 2d DCA 1979), was more analogous factually, and that, therefore, there was not sufficient basis for the stop.

We fully recognize and adhere to the well-settled proposition that a trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness and must be accepted by this court if the record reveals evidence to support the findings. See e. g., State v. Battlemen, 374 So.2d 636 (Fla. 3d DCA 1979). We must conclude here, however, that the unrefuted evidence offered by Deputy Moore does not support the trial court’s finding.

We are not concerned here with “probable cause” to make an arrest, but with whether the facts and circumstances apparent to the deputy created a “founded” or “reasonable suspicion” that something was amiss requiring his further investigation. A temporary detention is permissible if the facts available to the deputy at the time would warrant a person of reasonable caution in believing that the action taken was appropriate. Franklin v. State, 374 So.2d 1151 (Fla. 3d DCA 1979); Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976). A “founded suspicion” is that which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. In those cases where reasonable persons might differ as to whether the circumstances observed by the officer gave him an objective foundation for his suspicion, certain factors may be applied to determine whether the circumstances reasonably suggested the suspect’s possible commission, existing or imminent, of an offense. Those factors include the time, the location, the physical appearance and behavior of the suspect and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

Those tests support Deputy Moore’s actions here. Though he had no knowledge that either the defendant or the passenger had violated any laws at the time he initially observed them, he testified that he approached them “[b]ecause they were loitering out there in the parking lot.” Both the Pasco County Sheriff’s Office and, as late as the night before, Deputy Moore himself, had received complaints and requests for assistance from the management of the bowling lanes because of problems arising from people who were involved with drugs and alcohol and loitering in the parking lot. With that knowledge, his observation of the defendant outside the bowling lanes at 10:20 p. m. urinating against the side of a truck was behavior incongruous or unusual enough to warrant his further investigation. Surely a law enforcement officer under those circumstances is not required to ignore the incident and proceed on, doing nothing.

Section 901.151(2) provides that:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

Section 856.021, Florida Statutes (1977), makes it an offense for any person to “loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” When Deputy Moore first observed the defendant urinating against the side of a truck in the parking lot of the bowling alley late at night, he did not know whose truck it was or whether it might have been stolen or about to be stolen. He did not know whether the defendant’s urinating in a public parking lot indicated that the defendant was under the influence of alcohol or drugs and about to drive off in the truck while under such influence. Section 856.021 further provides that when a law enforcement officer observes a person loitering or prowling as defined, he shall, “prior to any arrest . afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct.” It was while doing exactly that that Deputy Moore observed the odor of alcohol on defendant, his slurred speech and unstableness on his feet. At this point the actions of the defendant and his loud and abusive comments to Deputy Moore precipitated the arrest for disorderly intoxication.

Rather than the motive of the arresting officer, what must be examined is the conduct of the defendant that gave rise to his ultimate arrest and search. State v. Nittolo, 317 So.2d 748 (Fla.1975); State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971). If Deputy Moore’s suspicions were aroused because the defendant was loitering as defined by the statute, he was obligated to further investigate. Before he could arrest defendant for loitering he would have had to satisfy himself as to whether or not the defendant’s suspected loitering or prowling was done under conditions which threatened a breach of the peace or the public safety of persons or property. In State v. Ecker, 311 So.2d 104, 110 (Fla.1975), the supreme court held:
The whole purpose of the statute is to provide law enforcement with a suitable tool to prevent crime and allow a specific means to eliminate a situation which a reasonable man would believe could cause a breach of the peace or a criminal threat to persons or property.

It was while attempting to satisfy this requirement that defendant’s conduct and physical appearance and condition precipitated his arrest, not for loitering but for disorderly intoxication.

The supreme court in State v. Nittolo, supra, adopted the dissenting opinion in the district court decision being reviewed. What was said there applies to the facts here, for here as there, “The police officer was where he should have been, doing what he was trained to do; and the mere fact that the defendants panicked” and engaged in conduct that precipitated the arrest and subsequent search “ought not give rise to an after-the-fact contention that the officer” had unreasonably detained the defendant for his initial investigation. 317 So.2d at 750. As was further said there:

“It seems to me to suppress the evidence under the instant circumstances requires us to strain our Constitution ‘through a filament of unrealistic exactitude’. See Mattier v. State, Fourth District Court of Appeal, 301 So.2d 105. What the state and federal Constitutions forbid is not all searches and seizures but only unreasonable searches and seizures; the Constitution does not forbid the application of common sense in the detection of crime and the apprehension of criminals. State v. Holmes, supra. As I indicated in Mattier v. State, supra, ‘there is no war between the Constitution and common sense.’ ”

Id.

As we held in State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973), regarding a frisk under the stop and frisk law, it is apparent that no hard and fast rule can be adopted which will in every instance guide the police as to when they may or may not stop or detain an individual for further investigation. For the trial court to apply Vollmer v. State, supra, in this case was a too stringent limitation on the responsibilities and obligations of Deputy Moore when he observed the actions of the defendant in light of the previous knowledge he possessed while patrolling the area where the incident took place.

We, therefore, reverse and remand for treatment consistent with this opinion.

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

      . That report consists of the name, address, residence, date of birth, physical description, location of incident, social security number, driver’s license number, vehicle description and identification number as they pertain to the individual questioned.

      . In that case, appellant was stopped merely because he was walking along a main thoroughfare at 3:00 a. m. and had turned to watch the police cruiser pass by. There had been no reports of any criminal activity in the area on that morning. Concluding that the stop was unjustified, we reversed appellant’s convictions for resisting arrest and possession of controlled substances.


author: NESBITT, Judge.

text:
    ATLANTIC COAST DEVELOPMENT CORPORATION, Appellant, v. NAPOLEON STEEL CONTRACTORS, INC., Nelacar Corp., and Nelacar Construction Corp., Appellees.
    Nos. 79-913, 79-1154.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 25, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Owen Ricker, Jr., Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart and Richard G. Daniels; High, Stack, Lazenby, Bender, Palahach & Lacasa and George C. Bender, Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

This is an appeal from a judgment for common law indemnity entered upon a jury verdict against a subcontractor who was the employer of a workman killed on a construction site. The indemnity suit followed a settlement agreement reached by the ap-pellees and the personal representative of the decedent’s estate in a wrongful death action.

The issue before this court, simply stated, is whether one may delegate a nondelegable duty. Upon analysis, we find this apparent inconsistency is neither apparent nor inconsistent and affirm the judgment.

The accident occurred on a construction project in which appellees, Nelacar Corporation and Nelacar Construction Corporation, were owner and general contractor, respectively. Appellee, Napoleon Steel Contractors, Inc. (Napoleon), was a subcontractor and had a crane set up on the construction site. For convenient reference and because Nelacar Corporation and Nelacar Construction Corporation have presented themselves in this appeal and in the action below collectively, they will be referred to as “Nelacar”. Appellant, Atlantic Coast Development Corporation (Atlantic), also a subcontractor on the project, was assigned the task of preparing the forms for the pouring of concrete “decks”. This unfortunate accident occurred on one of those “decks” which was several stories below a platform extending out from the eleventh floor to which Napoleon was hoisting concrete blocks with its crane.

Recognizing the danger of having men working below a crane that was lifting blocks, the crane operator for Napoleon spoke with, among others, Hershel Carver, Atlantic’s on-the-job supervisor. The problem stemmed from the fact that Napoleon’s crane operator, although being able to check the area before a particular lift was made, was unable to watch the load he was raising on the crane and the deck area several stories below simultaneously. A system was worked out to warn the men working nearby whereby a man who was loading the blocks on the crane would yell out a warning at the time a lift was about to be made. On one such lift, while the blocks were being unloaded on the platform on the eleventh floor, some blocks fell and one struck and killed the decedent, Frank Edwards.

A crane in operation is inherently dangerous. Geffrey v. Langston Const. Co., 58 So.2d 698 (Fla.1952). Napoleon, involved in this inherently dangerous activity, had a nondelegable duty to use care in carrying out its responsibilities. Part of its responsibility would be to look out for the safety of the workers around the crane. The nature of the operation of a crane precluded the operator from continually checking to ensure that no one was dangerously close to the area during a lift.

The facts presented to the jury indicated that Atlantic, through its supervisor, Hershel Carver, agreed to assume the duty, which was otherwise owed by Napoleon, of keeping his men safely away from the proximity of the crane while it was in operation.

Holding a particular undertaking to be nondelegable means that responsibility, i. e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the task. “Nondelegable” applies to the liabilities arising from the delegated duties if breached. Accord Restatement (Second) of Agency § 214 and Ch. 14 Title C. Introductory Note (1958); Restatement (Second) of Torts § 427 (1965); see Mills v. Krauss, 114 So.2d 817, 819 (Fla. 2d DCA 1959), cert. denied 119 So.2d 293 (Fla.1960).

In discussing nondelegable duties and indemnity, Chief Judge Breitel, for the Court of Appeals in New York, in Kelly v. Diesel Const. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 7, 315 N.E.2d 751, 754, 358 N.Y.S.2d 685, 689-90 (1974), stated that:

[T]he use of the term “nondelegable” was applied properly not to duties that could not be delegated but to liabilities arising from the delegated duties if breached. The fact and the law always was that the duties could be delegated but that first instance liabilities which arose from breach of the duties could not be delegated as against persons injured by the breach of the duties. And, of course, in reason, one who delegated a duty to another should have continued to be entitled to recover from the delegate for the harm sustained by him because of the delegate’s breach of duty, namely, having been cast in judgment as vicariously liable.

Our Supreme Court, in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), determined that:

Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought. ... It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.

374 So.2d at 492-93.

In the instant case, Nelacar, who was the owner and general contractor and actively supervised the daily construction operations, had a duty to keep its premises safe for all the workmen on the job and will be ultimately held liable for injuries occurring on its worksite. Conklin v. Cohen, 287 So.2d 56 (Fla.1973); 20 A.L.R.2d 868, 873 (1951). Additionally, “[w]hen the nature of the work done by an independent contractor is inherently dangerous, [such as use of a crane] then the duty of care in its performance is nondelegable by the employer.” Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So.2d 767, 772 (Fla. 3d DCA 1968), cert. denied 222 So.2d 751 (Fla.1969). If an injury resulting therefrom was caused solely through the fault of another, Nelacar would be held responsible due to its vicarious, constructive, derivative, or technical liability. Houdaille Industries, Inc. v. Edwards, supra. Absent a finding of actual fault on the part of Nelacar, Nelacar would be entitled to indemnity from one who should bear the cost because it was the latter’s wrongdoing for which Nelacar will be held liable. Having delegated the task to Napoleon to operate the crane, any breach of that duty by Napoleon would allow Nelacar to seek indemnity for Napoleon’s breach of duty if Napoleon were to be found at fault and Nelacar were to be found without fault.

Likewise, Napoleon, involved in an inherently dangerous activity, may delegate the duty to look out for the safety of the workers to Atlantic. Napoleon would remain liable for injuries to third persons such as Atlantic’s employee, Edwards, for a breach by Atlantic of the duty delegated to it. Napoleon, in turn, if found to be without fault, would be allowed to seek indemnity from Atlantic who failed to properly carry out the duty that was delegated to it. In such a situation, Nelacar, who has ultimate liability, would also be allowed to seek indemnity from Atlantic.

The jury found that Atlantic, through Hershel Carver, had accepted responsibility for keeping its workers from underneath the crane. They also found that Atlantic breached that duty. Unfortunately, at the particular moment that the breach occurred, a load of block fell and ultimately killed Atlantic’s employee, Edwards, who had been allowed and directed to work in the area by Hershel Carver. Consequently, Napoleon would be held liable and, in turn, Nelacar, as either general contractor or owner, would also be held liable. Since the jury found that Nelacar and Napoleon were without fault, their liability in the instant case would only be vicarious and one who is held vicariously liable for acts which were the fault of another may seek indemnity from the actual primary active wrongdoer. Houdaille Industries, Inc. v. Edwards, supra.

Appellant’s next contention is that indemnity was improper in that appellees were not without fault and were therefore joint tortfeasors. There can be no indemnity between joint tortfeasors. Houdaille Industries, Inc. v. Edwards, supra; Seaboard Coast Line Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978) and Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977). On the evidence presented and upon the instructions given to the jury, a verdict was returned finding for the appellees. The instructions indicated that if the jury found either of the appellees to be at fault, a verdict would have to be rendered in favor of Atlantic. No such finding was made and the jury returned the verdict of which the appellant now complains.

And to this point, appellant alleges error in that the instructions given to the jury were erroneous. Atlantic’s contention is that proper instructions would have tracked the language of Houdaille v. Edwards, supra. Initially, we point out that the failure of a party to request an omitted instruction or to object to the admission of a particular instruction precludes that party from raising as error that point on appeal. Collard v. Keeton, 317 So.2d 121 (Fla. 3d DCA 1975) and Fleitas v. Robinson, 273 So.2d 419 (Fla. 3d DCA 1973). Additionally, we point out that the instructions which were actually given are in accordance and premised on the cases relied upon in Houdaille Industries, Inc. v. Edwards, supra.

The final point presented by appellant goes to the reasonableness of the settlement and the liability of appellees to the original plaintiff. The jury was instructed as to this requirement and found the settlement to be reasonable. We point out, however, that such a showing is only required when a settlement has been entered into without notice or the indemnitor has not had an opportunity to defend. MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973). In the instant case, Atlantic was on notice of the proceedings. The record indicates that Atlantic was involved as a third party defendant up until the time of pretrial conference when third party claims were severed. Atlantic, as the deceased’s employer, had knowledge of the original action brought against Nelacar and Napoleon but did not seize upon the opportunity to appear and defend that phase of the litigation. Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349, 351 (Fla. 4th DCA), cert. denied, 194 So.2d 621 (Fla.1966). The judgment entered against Nelacar and Napoleon, if without fraud or collusion, is conclusive against Atlantic as to all material questions therein determined. MacArthur v. Gaines, supra, and Westinghouse Electric Corp. v. J. C. Penney Co., 166 So.2d 211 (Fla. 1st DCA 1964). This situation is unlike one where an action was brought against a party and he defends that action without notifying the true party who should have been sued and thereafter tries to bring an action for indemnity. In this case, the third party action for common law indemnity was filed against Atlantic prior to the trial and ultimate settlement.

The judgment appealed from is affirmed.

      . Absent active participation or the dual capacity of owner/general contractor present in this case, an owner will not normally be held responsible for providing a safe work area when he has turned the control and oversight of the project over to a general contractor. See Cuyahoga Wrecking Corp. v. Mastres, 368 So.2d 380 (Fla. 3d DCA), cert. dismissed 375 So.2d 911 (Fla.1979); Conklin v. Cohen, supra.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Lazaro GONZALEZ-VALLE, Appellee.
    No. 79-1522.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 11, 1980.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Peter F. K. Baraban, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The State of Florida seeks review of an order of the trial court suppressing certain evidence seized pursuant to a warrantless search. We affirm.

On the morning of April 27,1979, several officers of the Dade County Public Safety Department went to the defendant’s home, in answer to a call by the defendant’s wife who had informed them (through a third person) that the defendant had a gun and some narcotics in his possession. Upon their arrival they waited for the defendant’s wife to return home, at which time they entered the home and the bedroom occupied by the defendant and proceeded to search the room. The search was made without a warrant but was made pursuant to consent thereto being given by the wife. Said search uncovered a gun and some narcotics, resulting in the defendant’s arrest.

The defendant moved to suppress the evidence on the basis of an illegal search and seizure. At hearing on the motion to suppress, it was revealed that the reason the wife wanted her husband arrested and consented to the search was that she and her husband were having marital difficulties and that she was angry and jealous over the fact that the defendant was having an affair with another woman. Based thereon, the trial court granted the motion to suppress.

The question to be determined is whether or not, under the circumstances of this case, the consent by the wife permitted a valid search of the premises. We hold it did not. In Florida, the husband and wife relationship (without more) does not authorize one spouse to waive the constitutional rights of the other to a warrantless search. Silva v. State, 344 So.2d 559 (Fla.1977); State v. Blakely, 230 So.2d 698 (Fla. 2d DCA 1970). We recognize that there are exceptions to this rule; however, even if this case fell within one of those exceptions, the search would still be invalid because the motive of the defendant’s wife in consenting to the search was clearly one of spite, being hostile to the defendant, and made with the intent to harm him. Under such circumstances, the wife had no right to waive her husband’s protection against unreasonable searches and seizures any more than any other person would have had. Silva v. State, supra; United States v. Mazurkiewicz, 431 F.2d 839 (3rd Cir. 1970); Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545 (1946). Therefore, the search and seizure herein was illegal, being predicated upon an invalid consent.

We find the other point raised by the State herein to be without merit.

Based on the foregoing, the order appealed suppressing the fruits of the search is hereby affirmed.

Affirmed.


author: HENDRY, Judge. SCHWARTZ, Judge

text:
    ADOPTION HOT LINE, INC., a domestic corporation doing business in Florida, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT XI, ex rel. Max B. ROTHMAN as District Administrator, Appellee.
    No. 79-2299.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 11, 1980.

      Alan S. Kessler, Miami, for appellant. Morton Laitner, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   HENDRY, Judge.

This appeal has been brought before us pursuant to Fla.App. Rule 9.130(a)(3)(B), that is; proceedings to review a non-final order which grants, continues, modifies, denies or dissolves an injunction. The trial court has entered an order enjoining appellants’ activities. Appellants contend that the trial court abused its discretion in granting the temporary injunctive relief.

Appellee, State of Florida, Department of Health and Rehabilitative Services, District XI, ex rel. Max B. Rothman as District Administrator, filed suit for temporary and permanent injunction against Lawrence and Henrietta Lauer, doing business as Adoption Hot Line, Inc., a Florida corporation, alleging inter alia that the appellants/defendants were operating an unlicensed child-placing agency and the minimum standards under the Florida Statutes and the Florida Administrative Code had not been met by the incorporators and other personnel connected with the organization. Appellants have maintained that they do not, in fact, “place children” but rather merely act as a referral and counselling service for pregnant women and provide the names of these women to prospective adoptive parents through the intermediary of the prospective parents’ choice; the alleged intermediaries are said to usually be doctors and lawyers.

The subject order reads in relevant part:
1. That Adoption Hot Line, Inc. is enjoined temporarily from, in any manner of advertising for children for adoption, or any manner of advertising for parents for unborn children, for purposes of adoption or in any manner advertising or soliciting the offering of adoptive services until further Order of this Court.
2. Adoption Hot Line, Inc. is not prohibited from advertising Adoption Hot Line in the newspaper, but they are enjoined from in any way accepting any solicitations for the placement of children through them either through that advertisement or any other manner. Such advertising by Adoption Hot Line, Inc. shall not be for the purposes of attempting to obtain names of pregnant mothers nor prospective adoptive children nor prospective adoptive parents for the purposes of placing them together.

The most significant allegations made by appellees regarding the activities of the Lauers and Adoption Hot Line, Inc. are: (1) that the appellants/defendants did, in fact, commence the process of placing a 17-month old child; (2) that there has been no licensing by the Department of Health and Rehabilitative Services as a child-placing agency, pursuant to Chapter 63, Florida Statutes, and/or the Florida Administrative Code; (3) that no such licensing has been applied for or sought by the appellants; (4) appellants are neither licensed physicians or attorneys nor have they been qualified to act as intermediaries for the appellee-de-partment; (5) the newspaper advertising placed and published at the behest of appellants states that a “young couple wishes to adopt Caucasian child, any age, Adoption Hot Line” followed by two telephone numbers. We believe that the record supports the action taken by the trial court in granting the temporary injunction. It is well established that when a permanent injunc-tive proceeding would move too deliberately to provide necessary relief, the court may properly grant a temporary injunction, the function of which is to preserve the status quo until the final hearing. Uni-Chem Corporation of Florida v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976); Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365 (Fla. 4th DCA 1968). The controlling reason for the very existence of the power to grant a temporary injunction is that the court may thereby prevent a threatened or continuous irremediable injury which might otherwise occur before the plaintiff’s claim could be thoroughly investigated. Tamiami Trail Tours, Inc., supra, 212 So.2d 365; Murphy v. Daytona Beach Humane Society, Inc., 176 So.2d 922 (Fla. 1st DCA 1965).

In the case before us the crucial issue of whether Adoption Hot Line, Inc. is a corporation in operation for the purpose of child-placing (in contravention of the prevailing law in the area of adoption), or whether it is actually a referral agency (as appellants contend), has yet to be determined by the trial court. However, the short record compiled thus far in the cause supports the trial court’s action in granting the temporary injunction. The probable injury to the public is evident in the obvious and immediate potential for a black-market-baby-sale network, attendant with the improper and highly probable “unsuitable” placements of children, in violation of Florida law. See Tamiami Trail Tours, Inc., supra, 212 So.2d 365.

The trial court has not abused its discretion; we concur in its issuance of the temporary injunction.

Appeal therefrom is dismissed.

Dismissed.

SCHWARTZ, Judge

(dissenting).

As I view the record below, there were neither allegations in the complaint nor any evidence to the effect that the appellant’s activities have been, much less will be, in fact unlawful. Even more clearly, there was nothing close to a showing that there was, as the court says, a “probable injury to the public ... in the obvious and immediate potential for a black-market-baby-sale network, attendant with the improper and highly probable ‘unsuitable’ placements of children, in violation of Florida law.” [e. s.] I believe therefore that there are two separate reasons why the order on appeal should be reversed. First, it is well-settled that injunctive relief “should not be granted where there is substantial dispute as to the legal rights involved and the right of complainant is doubtful, or is not clear.” Dade Enterprises, Inc. v. Wometco Theatres, Inc., 119 Fla. 70, 160 So. 209, 214 (1935). Secondly, as stated in Cramp v. Board of Public Instruction of Orange County, 118 So.2d 541, 544 (Fla.1960):

It has been consistently held that in order to support the granting of a temporary restraining order, the allegations of the complaint must be clear, distinct, and unequivocal. The plaintiff by his complaint must likewise clearly demonstrate that irreparable injury would follow the denial of the injunction. Interstate Lumber Co. v. Fife, 70 Fla. 178, 69 So. 715; Drew Lumber Co. v. Union Inv. Co., 66 Fla. 382, 63 So. 836; Stanton v. Harris, 152 Fla. 736, 13 So.2d 17; Weissman v. Jureit, 132 Fla. 661, 181 So. 898.

Accord, e. g., Davis v. Wilson, 139 Fla. 698, 190 So. 716, 719 (1939) (“[T]o make out a case for an injunction, it must appear that there is at least a reasonable probability, not a bare possibility, that a real injury will occur if the writ is not granted.”)

The majority suggests that the temporary injunction serves merely to “preserve the status quo.” This is simply not the case. The order forbids the defendant from continuing to carry on virtually every activity in which it had been engaged and thus effects a complete change from the existing situation. In Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., Southern Greyhound Lines Division, 212 So.2d 365 (Fla. 4th DCA 1968), upon which the majority relies, the court actually reversed a temporary injunction because, as in this case, it disturbed the status quo and there was no showing of irreparable injury. See also Jennings v. Perrine Fish Market, Inc., 360 So.2d 434, 435 (Fla. 3d DCA 1978); DoCouto v. ITT Community Development Corporation, 347 So.2d 1059 (Fla. 1st DCA 1977), cert. enied, 357 So.2d 186 (Fla.1978); State, Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977); Quadomain Condominium Association Inc. v. Pomerantz, 341 So.2d 1041 (Fla. 4th DCA 1977); City of Coral Springs v. Florida National Properties, Inc., 340 So.2d 1271 (Fla. 4th DCA 1976); Fla.R.Civ.P. 1.610(b). Because I believe that the defendant’s actions may not be lawfully enjoined on the speculative, even fanciful, basis asserted below and approved here, I would reverse the order under review.

      . The apparent rationale for the court’s having specifically exempted advertising from its order is to preserve appellants’ constitutionally-protected right to freedom of speech.

      . Of course, a temporary injunction does not purport to decide any material points in controversy, and a denial thereof does not preclude the granting of a permanent injunction at the conclusion of the case. A temporary injunction is clearly not conclusive; its provisions may be merged in, or dissolved by, the final decree, North Dade Water Co. v. Adken Land Co., 114 So.2d 347 (Fla. 3d DCA 1959), or it may be attacked while the suit is pending. Fla.R.Civ.P. 1.610(c).

      . § 63.092, Fla.Stat. (1979), addresses the “suitability of the intended adoptive home” and the fact that a study and a report are required to be undertaken by the “department or any other qualified agency or person designated by the department.”

      . On the issue of “irreparable harm,” the complaint alleged only.
      24. The Plaintiff alleges and fears that child placing agencies such as Adoption Hot Line, Inc. may fall into the hands of unscrupulous individuals and such child-placing agencies would deal in the sale of black market babies.
      25. The Plaintiff fears that parties such as the Lauers, who are without proper educational background, could create unwarranted hopes in the hearts of prospective parents causing which upon Adoption Hot Line’s failure to find a child for said prospective parents could cause grave cases of mental distress.
      26. Plaintiff alleges that allowing ill trained individuals such as the defendants, to handle the delicate task of dealing with prospective adoptive parents and pregnant females could create serious trauma in these individuals lives.

        COUNT V

      27. Plaintiff alleges that Adoption Hot Line, Inc. is an unlicensed child-placing agency which is utilizing misleading advertising and not properly trained individuals to deal with the very delicate situation of hopeful prospective adoptive parents and distressed pregnant females. To allow unlicensed child-placing agencies to exist in the State of Florida such as Adoption Hot Line, Inc. could open up the field for black marketers in babies and create numerous potential hazards to the mental health and well being of pregnant mothers who are willing to give up their children and prospective adoptive parents, [e. s.]


author: DANIEL S. PEARSON, Judge.

text:
    I.R. and I.R., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 77-2555.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender for I.R., juvenile in No. 77-11087A.
    No appearance for I.R., juvenile in No. 77-11086A.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Separate petitions for delinquency were filed against the twelve-year-old appellant and his fourteen-year-old brother, charging them with the second-degree murder of one Laurence Baker. Based on the testimony adduced at a consolidated probable cause hearing, the charges in the petitions were reduced to aggravated battery. By stipulation, the transcript of this testimony was received in the stead of live testimony at a consolidated adjudicatory hearing. Both the appellant and his brother were adjudicated delinquent upon findings that they committed the aggravated battery and, in its commission, used a deadly weapon, a metal lock.

This appeal challenges the sufficiency of the evidence to support the adjudication of the appellant. To address this challenge we need only a brief summary of the evidence. The attack occurred at lunch hour in a schoolyard. Baker’s death resulted from head trauma caused by a blunt instrument. The injury was consistent with being struck by a metal lock. The appellant surrendered the lock to the police when they arrived at the scene and stated that he had bought it earlier that day. The descriptions of the fight, all elicited from witnesses for the prosecution, varied. Two witnesses stated that they saw appellant strike the victim in the head with a lock. Another said the appellant was fighting with the victim, and when appellant’s brother came running up, appellant handed his brother the lock, with which the brother struck the victim. Two other prosecution witnesses testified that the appellant, getting the worst of a fight with the victim, was lying on the ground beneath the victim when the appellant’s brother came running up and struck the victim in the head with a lock he had in his hand. The appellant’s position is that because the latter two eyewitnesses testified, as a part of the State’s case, that the appellant did not commit the crime for which he was on trial, a reasonable doubt was created as a matter of law. He contends that Majors v. State, 247 So.2d 446 (Fla. 1st DCA 1971), requires reversal of his adjudication. We disagree and affirm.

In Majors, two people, Majors and Bellamy, were jointly charged with assaulting another, Johnson, with a pistol. Majors was convicted; Bellamy acquitted. At trial four state witnesses said Majors shot Johnson; four equally competent state witnesses said Bellamy shot Johnson. There was only one gun involved and only one bullet fired. Significantly, there was no evidence that Majors and Bellamy acted in concert.

While Majors contended, as does the appellant here, that the prosecution’s case created a reasonable doubt as a matter of law, the court implicitly rejected that contention. Instead, the court held that bringing Majors to trial with Bellamy was a denial of Majors’ due process right to a fair trial requiring that Majors be tried again.

“Each defendant was forced into the position of trying to prove that the other defendant was the guilty party, while the prosecutor could sit back and watch the two defendants ‘fight it out’ before the jury as to who was guilty. This, we think, was an unfair burden to place on the defendant under our system of justice. Under that system there is no authority for the procedure used in this case, which we believe denied due process of law to the appellant, so the judgment appealed from must be reversed.
“The record does not disclose, of course, the precise reason why the prosecution elected to proceed as it did, charging the appellant and Bellamy jointly with the crime of aggravated assault. Neither of these procedures [permissible in civil actions] is permissible in criminal law, mainly for the fundamental reasons that an accused is presumed to be innocent, that the burden is upon the prosecution to prove beyond a reasonable doubt that the accused is guilty of the crime charged, and that every accused is entitled to a fair trial.” Majors v. State, 247 So.2d at 448.

Thus, Majors does not hold that the existence of both inculpatory and exculpatory testimony in the State’s case creates a reasonable doubt as a matter of law. Moreover, Majors is distinguishable from the present case. While in Majors there was no evidence of any joint action between Majors and Bellamy, in the present case there was credible evidence that the appellant and his brother acted in concert to commit an aggravated assault upon Baker.

“The principle is well established that, when several persons combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in furtherance or prosecution of the common design, and if several persons combine to do an unlawful act, and in prosecution of the common object a culpable homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish. The immediate injury from which death ensues is considered as proceeding from all who are present and abetting the injury done, and the actual perpetrator is considered as the agent of his associates. His act is their act, as well as his own, and all are equally criminal.” Henry v. State, 81 Fla. 763, 89 So. 136, 138 (1921).

See also Foxworth v. State, 267 So.2d 647 (Fla. 1972); Carter v. State, 101 So.2d 911 (Fla. 1st DCA 1958).

Where the evidence is in conflict, it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue. Blackburn v. State, 314 So.2d 634 (Fla. 4th DCA 1975); Eizenman v. State, 132 So.2d 763 (Fla. 3d DCA 1961). In the present case the trial judge could well have accepted the testimony of the State’s witness that the appellant handed his brother the metal lock just before the brother struck the fatal bow. The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction. Singleton v. State, 315 So.2d 506 (Fla. 3d DCA 1975); Bruton v. State, 220 So.2d 669 (Fla. 3d DCA 1969).

Affirmed.

      . Had the court in Majors held that the evidence was insufficient to prove Majors’ guilt beyond a reasonable doubt, Majors would have been entitled to the entry of a judgment of acquittal.

      . While the instant appeal only concerns the appellant, the record before us reflects that his brother was adjudicated on the identical charge. It is true that either of two versions of the fight — that the appellant hit the victim with the lock or that appellant handed the lock to his brother — would support the appellant’s guilt of aggravated battery. See Sons v. State, 99 So.2d 888 (Fla. 2d DCA 1958) (in which the jury’s verdict could have been sustained by its belief that the defendant fired the shot, or its belief that the defendant hollered to the co-defendant to shoot). However, only the version that the appellant handed the lock to his brother would be consistent with the adjudication of the brother.


author: DANIEL PEARSON, Judge.

text:
    Martha Sue ADAMS, Appellant, v. James K. ADAMS, Appellee.
    No. 79-1982.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Pennington, Wilkinson, Gary & Dunlap and Everett P. Anderson, Tallahassee, for appellant.
    Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL PEARSON, Judge.

A final judgment of dissolution, rendered in 1975, awarded custody of the parties’ then three-year-old son to the mother, Martha Sue Adams. At the time of the dissolution of the marriage, the father conceded “that custody would be best had with the mother.” Mr. Adams, subsequently remarried, and in 1979 moved to modify the final judgment of dissolution, requesting that he be awarded custody of the child.

The parties agreed that the evidence to be submitted on the motion to modify would be restricted to written reports prepared at the trial court’s request by Department of Health & Rehabilitative Services representatives. Essentially, the report of the Tallahassee caseworker concluded that the environment which the mother was providing was “positive, satisfying [and] love filled.” The Miami caseworker, who had not seen the child or the mother and had not observed the environment in which the child was being raised, concluded from an interview of the father and his newly-taken wife that the “father has as much, if not more, to offer in terms of love and emotional and material stability.” Based upon these reports, the trial court ordered that custody be changed.

The presumption of correctness which attaches to a ruling of a trial court made upon written reports is slight. In such an instance, as here, an appellate court has the same opportunity as the trial court to determine the probative force and legal effect of the written record.

A custody order can only be modified upon a showing that there has been a substantial and material change in the parties’ circumstances since the entry of the prior custody award, and that the best interests and welfare of the child will be promoted by a change of custody. Bennett v. Bennett, 73 So.2d 274 (Fla.1954); Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); Jones v. Jones, 156 Fla. 524, 23 So.2d 623 (1945); Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA 1964); Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979); Garner v. Garner, 193 So.2d 673 (Fla. 2d DCA 1967). When a change of custody is sought, a trial court has considerably less discretion, and such a change must be supported by substantial evidence. Bennett v. Bennett, supra; Bel-ford v. Belford, supra; Tash v. Oesterle, 356 So.2d 61 (Fla. 3d DCA 1978); Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967). Neither the husband’s remarriage nor his increased material wealth constitutes a change in circumstances sufficient to justify modification of custody. Anderson v. Anderson, 309 So.2d 1 (Fla.1975); Belford v. Belford, supra; Ritsi v. Ritsi, supra; Wilson v. Condra, 255 So.2d 702 (Fla. 1st DCA 1971).

Applying these principles to the present case, and upon our independent review of the written reports which formed the basis for the trial court’s decision, we hold that there was not substantial evidence to support a finding that the parties’ circumstances had materially changed and that the best interests and welfare of the child would be promoted by a change of custody. Accordingly, we reverse the order of the trial court changing the custody of the child from the mother to the father with directions to reinstate the visitation rights of the father and his obligation to make child support payments to the mother.

Reversed.

      . Mrs. Adams, who by then lived in Tallahassee with the child, moved for a change of venue, and being denied that relief, appealed to this court. We affirmed the trial court. See Adams v. Adams, 374 So.2d 29 (Fla. 3d DCA 1979).

      . There was simply no basis upon which the Miami caseworker could make this comparative judgment. See Taylor v. Schilt, 292 So.2d 47 (Fla. 2d DCA 1974). The fact that the father may be a fit and proper custodian is insufficient to change custody from another fit and proper custodian, the mother.

      . For the most part, the presumption of correctness arises from the fact that the trial court’s opportunity to observe the attitude, demeanor and responses of witnesses gives to that court the greater ability to assess credibility and from that decide the facts. West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958); Harmon v. Harmon, 40 So.2d 209 (Fla.1949); Conklin v. Pruitt, 182 So.2d 644 (Fla. 1st DCA 1966).

      . This “slight” presumption of correctness in a case determined by the trial court on a written record refers only to the appellant’s burden to demonstrate error.


text:
    The HOUSING AUTHORITY OF the CITY OF FORT LAUDERDALE, Appellant, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 78-1980.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    J. Richard Smith, Fort Lauderdale, for appellant.
    Alan E. DeSerio, John F. Harris and H. Reynolds Sampson, Tallahassee, for appel-lee.
   PER CURIAM.

From a non-final order of taking The Housing Authority of The City of Fort Lauderdale has perfected an appeal pursuant to Florida Appellate Rule 9.130(a)(3)(C)(ii).

It appears that the State of Florida, Department of Transportation sought to widen Broward Boulevard in Broward County. Doctor Kennedy Homes, a housing project owned and operated by The Housing Authority of the City of Fort Lauderdale, is bordered on one side by Broward Boulevard. The DOT sought to condemn two small pieces of property on opposite corners of the housing project. On one comer at the intersection of Broward Boulevard and 11th Avenue a small triangular parcel was to be taken for the purpose of installing a street light, traffic signal post, and wheelchair ramp. On the opposite corner of the housing project (Broward Boulevard and 9th Avenue) a portion of land was sought for a bus bay. This would provide a place for buses to pull out of traffic at the bus stop. Other than these two parcels near the housing project, no land was to be taken from The Housing Authority for the general widening of Broward Boulevard. The additional land for widening was to come from the other side of Broward Boulevard.

The Authority contends the trial court erred in entering the order of taking because the property taken was subjected to prior public use and the taking will materially impair the public use. We have fully considered all of appellant’s arguments in support of that contention and find no error in the trial court’s ruling.

The doctrine of “prior public use” used in eminent domain proceedings was recently described in a very thorough opinion by Judge Hubbart in Florida East Coast Ry. Co. v. City of Miami, 372 So.2d 152, 157 (Fla. 3d DC A 1979), as follows:

The law is well-settled that property devoted to a public use cannot be taken and appropriated to another or different public use by a condemnor to whom the power of eminent domain has been delegated unless the legislative intent to so take has been manifested in express terms or by necessary implication. This is known as the doctrine of prior public use. Simply stated, the rule denies exercise of the above power of condemnation where the proposed use will destroy an existing public use or prevent a proposed public use unless the authority to do so has been expressly given by the legislature or must necessarily be implied. .
The doctrine of prior public use stems from the recognition that municipal and many private corporations possess general powers of condemnation delegated by the legislature. If one such body may acquire land used or held for a public purpose by another corporation under a general power of condemnation, the latter would logically be free to re-acquire the same property. . . . The doctrine, therefore, has particular application when one condemning authority seeks property held by another condemning authority and neither possesses a superior power of condemnation by statute or court decision. [Citations and footnotes omitted.]

Thus, it appears that where one condemning authority possesses superior condemnation powers the required legislative intent mentioned above is necessarily implied.

In the case at bar, as appellee puts it, the Department of Transportation, as the State highway authority, is the sovereign when acting in the area of State road building. The property taken vests in the name of the State of Florida. The statutory authority for the department to condemn property is found in Section 337.27(1), Florida Statutes (1977), which provides:

The power of eminent domain is vested in the [Division of Administration of the Department of Transportation] to condemn all necessary lands and property for the purpose of securing rights of way, borrow pits and drainage ditches for existing, proposed or anticipated roads in the state highway system or state park road system. The [division] shall also have the power to condemn any material and property necessary for such purposes.

The power of eminent domain possessed by The Housing Authority is found in Section 421.12, Florida Statutes (1977):

Eminent domain. — An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purposes under this chapter after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. An authority may exercise the power of eminent domain in the manner provided in chapters 73 and 74. Property already devoted to a public use may be acquired in like manner, provided that no real property belonging to the city, the county, the state or any political subdivision thereof may be acquired without its consent. [Emphasis supplied.]

So we see the Department’s power of eminent domain is unrestricted while The Authority would be required to obtain permission from the Department in order to condemn property held by the Department. Thus, our situation is identical to that found in Florida East Coast Ry. Co. v. City of Miami, supra, at 158, wherein the court said:

The significance to this case of the City of Miami’s superior power of eminent domain over that of the railroad is that such superior condemnation power eliminates the rationale for the prior public use doctrine. Upon condemnation of the railroad’s property by the City of Miami, the railroad herein would lack the eminent domain authority to re-acquire the same property from the City. It was to avoid just such a conflict that the doctrine of prior public use was developed. As no such conflict now exists in this case, the prior public use doctrine is inapplicable as a defense to the taking herein.

We conclude that the prior public use doctrine does not apply to the taking here and that the evidence does not show that the property taken from The Authority will materially impair or interfere with the pri- or public use of The Authority. As this court said in State ex rel. Cox v. T. O. L., Inc., 206 So.2d 69, 73 (Fla. 4th DCA 1968):

Indeed, in the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may under general statutory authority be taken for another public use, where the taking will not materially impair or interfere with, or is not inconsistent with, the use already existing, and it is not detrimental to the public. It is not material that some inconvenience may result to the prior user, if the conditions are such that the two uses can stand together. City of Dania v. Central and Southern Florida Flood Control Dist., Fla.App. 1961, 134 So.2d 848.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and DOWNEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    BILL BINKO CHRYSLER-PLYMOUTH, INC., a Florida Corporation, Appellant, v. COMPASS INSURANCE COMPANY, INC., a Foreign Corporation, Appellee.
    No. 79-711.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    John L. Britton of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for appellant.

      William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, Bill Binko Chrysler-Plymouth, Inc., sued appellee, Compass Insurance Company, Inc., for declaratory judgment to determine coverage under an insurance policy issued to Binko by Compass. From a final judgment in favor of Compass Binko perfected this plenary appeal.

Bill Binko is a retail automobile dealer located in Broward County. In the course of its business Binko obtained a liability insurance policy for the period January 1, 1976, through January 1, 1977, issued by Compass. During the policy period Binko sold a 1976 Plymouth Volare to Jack E. Wolmer. In September 1977 the Plymouth was involved in a collision in which Wol-mer’s wife, Mary, was killed. In January 1978 Mary’s estate filed a wrongful death action against Binko and others, claiming negligence, breach of express and implied warranties, and strict liability in tort. Compass denied coverage on the grounds its policy had expired at the time of the accident, and thus Compass was not required to provide a defense for Binko.

Binko contends that its policy is an “occurrence policy.” That type of policy has been defined as one wherein the coverage is effective if the negligent act or omission occurs during the policy period, regardless of the date of discovery. Ranger Ins. Co. v. United States Fire Ins. Co., 350 So.2d 570 (Fla. 3d DCA 1977). In support of that contention appellant points to the following definition found in Part II — Policy Provisions:

OCCURRENCE means an accident including continuous and repeated exposure to conditions which result in BODILY INJURY or PROPERTY DAMAGE neither expected nor intended from the standpoint of the INSURED;
♦ * ♦ * # *
“PRODUCTS HAZARD” includes BODILY INJURY and PROPERTY DAMAGE arising out of the NAMED INSURED’S PRODUCTS or reliance upon a representation or warranty made at any time with respect thereto, but only if the BODILY INJURY or PROPERTY DAMAGE occurs away from premises owned by or rented to the NAMED INSURED and after physical possession of such product has been relinquished to others;
* * * S|c * *

It is appellant’s position that the negligent act or omission, if any, charged in the wrongful death claim occurred during the policy period; thus, under an occurrence policy appellant would be covered by the contract.

At first blush appellant’s argument seems plausible. However, a more analytical examination of the policy in question makes it clear that the contract is not an occurrence policy but, rather, a “discovery policy.” The latter type policy is defined in Ranger, supra, as one wherein the coverage is effective if the act insured against is discovered and brought to the attention of the insurance company during the policy period, no matter when the act or omission occurred. Appellee refers us to the policy definition of the term “bodily injury” which was used in the definition of “occurrence” as indicating that this is a discovery policy rather than an occurrence policy. That definition is:

BODILY INJURY means BODILY INJURY, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.

Another indication that this is a discovery policy is found in Section VI — POLICY PERIOD; TERRITORY, which provides:

This insurance applies only to BODILY INJURY, PROPERTY DAMAGE or LOSS which occurs during the policy period within the territory described in paragraph (1) or (2) of the definition of POLICY TERRITORY.

If we substitute the policy definition of the term “BODILY INJURY” where that term appears in the above quoted policy provision that defines the term “OCCURRENCE,” we wind up with the following meaning of “OCCURRENCE”:

“Occurrence” means an accident including continuous and repeated exposure to conditions which result in bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom, or Property damage . . .

Thus, regardless of whether the policy be characterized as an occurrence or discovery policy, the terms of this contract make it clear that the obligation undertaken by the carrier is to insure against a death occurring during the policy period. Mary Wol-mer’s accident and death, the occurrence in this case, took place after the expiration date of the policy; thus, the trial judge was correct in entering judgment for the appel-lee. See: Prieto v. Reserve Insurance Company, 340 So.2d 1282 (Fla. 3d DCA 1977).

AFFIRMED.

HERSEY, J., concurs.

GLICKSTEIN, J., concurs in result.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    George Junior KIRKLAND and Houdaille-Duval-Wright, Inc., Appellants, v. Robert L. ROBBINS, Appellee.
    No. 79-356/T4-407.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Rehearing Denied July 22,1980.

      Robert A. Wohn, Jr., Rockledge, for appellants.
    Bruce W. Jacobus, Melbourne, and Fred Denius, Indialantic, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, defendants below, appeal a final judgment of the Circuit Court for Brevard County awarding money damages for injuries sustained in a motor vehicle collision.

We affirm as to liability but reverse and remand for new trial on damages.

Appellant, George Kirkland, lost consciousness while driving an automobile owned by appellant, Houdaille-Duval-Wright, and struck a vehicle operated by appellee, Robert L. Robbins. Robbins sought to recover damages for orthopedic injuries to his spine and for a bowel and bladder condition allegedly caused by the accident. A second count for punitive damages was dismissed. Kirkland and Houd-aille defended, contending that Kirkland’s loss of consciousness was an “unexpected occurrence.”

At trial, Robbins offered proof of medical expenses of approximately $1,030.00. The court permitted introduction of mortality tables. Robbins argued that a reasonable award would be $6,000.00 to $10,000.00 per year for his life expectancy of twenty-six years. The jury returned a verdict of $150,-000.00.

After the trial, appellants filed a motion for remittitur or, in the alternative, for a new trial. Appellants also moved to interview the jury based on alleged misconduct stemming from the consumption of alcohol, boisterous behavior and an alleged consideration of improper evidence of injuries. At the hearing on these motions, the trial judge was troubled by the lack of proof of the cause of Robbins’ bowel and bladder condition and strongly indicated he was considering the immediate entry of an order for remittitur or new trial. Appellants' motion to interview the jurors was then denied and ruling reserved on the motion for re-mittitur or new trial.

Appellants raise as error the denial of their motion for remittitur or, in the alternative, a new trial when the verdict was clearly excessive in light of the facts and circumstances. The question which gives us the most concern in considering this point is whether a trial judge is permitted to base his decision to grant or deny a motion for remittitur on post-trial interviews with members of the jury.

Rule 1.431(g), Florida Rules of Civil Procedure, states that if a party believes grounds for legal challenge to a verdict exists, he may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to challenge. If a verdict is pronounced in the presence of all jurors which presumptively has satisfied the enlightened conscience of each of them, it is against public policy to inquiry into the motives and influences by which their deliberations were governed. Velsor v. Allstate Insurance Co., 329 So.2d 391 (Fla. 2d DCA 1976). Thus, inquiry is proper only in such cases involving matters extrinsic to the verdict such as arrival at the verdict by lot or quotient, improper contact with a juror or misconduct of a juror; investigation of the subjective decision-making process of the jury is not permissible. Id. at 393; Magid v. Mozo, 135 So.2d 772 (Fla. 1st DCA 1962). See also Ortega v. Perrini & Sons, Inc., 371 So.2d 203 (Fla. 2d DCA 1979).

In the case before us, counsel moved to interview the jury based in part on an alleged consideration of improper evidence of injuries. This allegation concerns the decision making process of the jury and therefore, inquiry was not permissible. The proper procedure for the trial judge was to poll the jury, as he did, and then order a new trial or remittitur in accordance with section 768.045, Florida Statutes (1977), if appropriate. The trial judge was not authorized to conduct an informal interview of the jurors after their dismissal and especially to then use the results of this poll as a factual basis for his decision on the motion for remittitur. After the jury has returned its verdict and has been discharged and separated, it cannot be recalled to alter or amend its verdict since the jury members lose their separate identity as a jury and are subject to extra trial influences. United States Fidelity & Guaranty Co. v. Gulf Florida Development Corp., 365 So.2d 748 (Fla. 1st DCA 1978). Thus, for the same reasons, it would appear that a juror’s recall of the jury deliberations would also be unreliable and should not be allowed to influence the judge in his determination of the correctness of the verdict.

In the case sub judice, the trial judge had serious reservations as to the adequacy of Robbins’ proof of causation of his bowel and bladder conditions. He concluded from his initial interview with members of the jury that this condition was a major factor in determining the award. After the hearing on the motion for remittitur, the trial judge conducted a second interview with the jury foreman and another juror and advised counsel by letter that he was apparently mistaken and that the jury had not been concerned to any great extent with the bowel and bladder condition. We have concluded that this information affected his decision not to grant remittitur or new trial.

Therefore, the judgment so far as liability is concerned, should be affirmed, but because of the trial judge’s reliance on a post trial interview with members of the jury, the remainder of the judgment is reversed and this cause is remanded for new trial on the issue of damages.

AFFIRMED in part and REVERSED and REMANDED for new trial on damages.

ORFINGER and COBB, JJ., concur.


author: WENTWORTH, Judge.

text:
    William Henry FRIEND, Appellant, v. STATE of Florida, Appellee.
    No. PP-29.
    District Court of Appeal of Florida, First District.
    June 19, 1980.
    Rehearing Denied July 9, 1980.

      Michael Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles Stampelos, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Friend appeals his judgment of conviction for kidnapping (four counts) and robbery with a firearm, and imposition of five 30-year consecutive sentences, each requiring the three-year mandatory minimum to be served. We agree with appellant’s contention that under a proper construction of Florida’s kidnapping statute, the kidnapping convictions should be reversed. § 787.-01, Florida Statutes (1977).

The record evidence shows that appellant and an accomplice, both carrying firearms while committing a robbery in an office building, motioned three employees into a bathroom, commanding them to “stay there.” After a few minutes another employee, who had been required to assist the robbers, was ordered into the bathroom and the door was shut. Within five minutes the employees opened the door and found that the robbers had departed. We conclude that these facts are insufficient to sustain appellant’s kidnapping convictions.

Florida’s kidnapping statute, § 787.01, Florida Statutes, provides in pertinent part that:

(l)(a) “Kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
******
2. Commit or facilitate commission of any felony.

Although appellant’s actions might be considered within the literal language of the statute, we are unable to find any reasonable basis for construing § 787.-01(l)(a)2 as intended to include confinement that is simply inconsequential or inherent in the nature of the related felony. Accord, Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). See also, Government of the Virgin Islands v. Berry, 604 F.2d 221 (3rd Cir. 1979); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). In the present case the confinement was of minimal duration, without significant asportation or movement, and did not significantly lessen the risk of detection or make the robbery substantially easier to complete than would any alternative forcible restraint essential to the commission of the robbery. The circumstances in this case therefore indicate that the confinement was without independent significance, that it was not materially different from the restraint necessarily involved in the felony of armed robbery, and that it was accordingly not within the intended purview of § 787.01(l)(a)2, Florida Statutes.

Appellant’s other contentions present no point of reversible error.

The convictions and sentences for kidnapping are reversed and the judgment otherwise affirmed.

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


text:
    Louis Phillip AYENDES, Appellant, v. STATE of Florida, Appellee.
    No. NN-466.
    District Court of Appeal of Florida, First District.
    June 19, 1980.
    Rehearing Denied July 18, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres and Harold Long, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

This case is before us upon appeal from a conviction and sentence on two counts of attempted kidnapping. We find that appellant’s conduct was within the intended purview of § 787.01, Florida Statutes, and affirm the judgment appealed.

Appellant was incarcerated at Union Correctional Institution, near Raiford, Florida, until his escape on November 27, 1978. After evading authorities for approximately 24 hours, appellant armed himself with a wooden fence picket and entered a dwelling, occupied by an elderly female and her adult son, in the town of Raiford. Appellant commanded that the occupants not “get up” or move, and secured possession of a firearm which was on the premises. After making a phone call in an attempt to obtain transportation away from Raiford, with the eventual purpose of fleeing to Mexico, appellant waited on the outside porch with the male occupant. This witness testified that he never consented for the appellant to be in his dwelling and that he was required to always remain in the appellant’s presence. After approximately one hour, appellant was apprehended by local law enforcement officials.

The charge in this case was attempted kidnapping with the intent to facilitate the commission of escape from prison. Kidnapping, as defined in § 787.01, Florida Statutes, includes “confining ... or imprisoning another person against his will and without lawful authority, with intent to . facilitate commission of any felony.” § 787.01(l)(a)2, Florida Statutes. Appellant argues that the circumstances of this case involve an insubstantial confinement not within the intended purview of § 787.01. We conclude, however, that the intended temporal duration of appellant’s conduct (for the apparent purpose of taking one victim with him for an extended time, and actual confinement of over one hour), with the degree of control maintained over the victims, constitutes confinement sufficiently substantial to be within the statutory prohibition of an attempt to kidnap as defined by § 787.01.

Appellant also argues that at the time of the confinement in question his escape had been completed, and therefore he was not facilitating the commission of the escape. While an escape is technically completed upon an inmate’s intentional act of leaving the established area of custody, Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978), the appellant in the present case was still in geographical proximity to the prison, had not abandoned his flight, and was attempting to secure transportation from the area. Those facts support a conclusion that the victims’ confinement was intended to facilitate the continuing escape within the statutory prohibition of § 787.01(l)(a)2. We note that this case is unlike Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980), in that the present case involves confinement which was of more than minimal duration, was not inherent in the nature of the felony of escape, and was clearly intended to lessen the risk of detection for an extended time, thus having significance independent of the related felony.

The judgment appealed is accordingly affirmed.

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


author: McCORD, Judge.

text:
    Everett Eugene HOWARD, Appellant, v. Vera BONER, Appellee.
    No. NN-105.
    District Court of Appeal of Florida, First District.
    June 23, 1980.

      W. Sperry Lee, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Daniel S. Brim, of Ripley, Rich & Brim, Fernandina Beach, for appellee.
   McCORD, Judge.

Appellant appeals from a final judgment directing him to pay $3,360 in real estate commission fees to appellee, Vera Boner. We reverse.

Sometime in 1977, appellant listed his home for sale with several brokers, including appellee. After that time, real estate agents began to show his home to prospective buyers. Appellee Boner advertised appellant’s home and showed it to prospective buyers for several months during 1977. In December 1977, the personnel office of Container Corporation, in Fernandina Beach, notified appellee Boner and another broker, Curtis Lasserre, that a new employee, Jerry A. Windisch, and his family would be moving from Gainesville to Fernandina Beach and would probably be interested in finding a home there. Although there is some conflict in the testimony, it appears that both Boner’s office and Lassere’s office contacted Windisch by telephone in December. During December, the Windisches drove around the town of Fernandina Beach to get an idea of what homes were for sale there. They saw that appellant’s home was for sale and noted that they were interested in looking at it.

On January 4, 1978, the Windisches again visited Fernandina Beach and Lassere drove them around, stopping at several houses in which he thought they might be interested. One of the houses at which they stopped was appellant’s house. They did not go into the house on that day but Lassere described the interior of the home to them at that time. The next week, the Windisches called Lassere from Gainesville and told him of four homes including appellant’s that they would like to visit when they returned to Fernandina Beach on Wednesday, January 11. Consequently, on that day Lassere made an appointment with the Windisches to show them the four houses on January 11 and then notified appellant of the Windisches’ interest in his house and advised him that they would go through his house on January 11. On January 6, Lassere took photographs of the houses the Windisches had requested to see and mailed those photographs to the Win-disches with information on some of them as to the price, number of rooms and other details. On January 7, a salesman for ap-pellee Boner called the Windisches to set up an appointment with them in Fernandina Beach. When they told him that they had an appointment with Lassere for Wednesday, January 11, appellee Boner requested that they come over a day early to meet with her and her salesman on January 10 to look at houses. The Windisches agreed and appellee Boner then informed appellant that she was going to bring the Windisches to look at his house on January 10.

On January 10, 1978, appellee took the Windisches to view several houses, one of which was appellant’s. She showed them through appellant’s house in the presence appellant and his wife. The Windisches expressed an interest in the house but made no commitment at that time. Appellee Boner did not obtain a contract from them and did not submit a contract to appellant and his wife.

On January 11, the Windisches kept their appointment with Lassere. Lassere showed them a duplex on the beach in which they were still very much interested at the time and also showed them appellant’s house. After discussing the merits of the two houses, the Windisches decided to make an offer on appellant’s house. Thus, on the afternoon of January 11, Lassere prepared the sales agreement on appellant’s house. The agreement was executed by the Windisches as purchasers, appellant and his wife as sellers, and Lassere as the real estate broker. The sale was ultimately closed with Lassere receiving a commission.

Appellee Boner began this action by filing a complaint against appellant, his wife, and Lassere, claiming that she should have received the commission since she was the procuring cause of the sale. She argued that because she was the first broker to bring the parties together, she should be the broker to receive the commission. After trial, the court below ruled that appellant Howard owed the full six percent commission to appellee. The court ruled that ap-pellee would take nothing from appellant’s wife and Lassere. No appeal has been taken by appellee from that ruling.

We recognize that a broker who is the procuring cause of a sale of real estate is entitled to a commission. Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975); Banks Real Estate Corp. v. Gordon, 353 So.2d 859 (Fla. 3d DCA 1977). As is obvious from the facts of the instant case, however, the determination of which broker was the procuring cause of a real estate sale can be subject to fine legal distinctions which may place too great a burden on sellers of homes. In resolving such a dilemma, we must employ a standard of reasonableness.

Under the facts of this case, appellant made a reasonable assumption that Lassere was due the commission since Las-sere was the first broker to contact him regarding the Windisches’ interest in the house and since Lassere was the broker who produced the contract for sale. The record contains no indication that, prior to paying the commission to Lassere, appellant had any notice or knowledge that appellee Boner would assert a right to the commission. The record contains no evidence of subterfuge or underhanded dealing that might suggest an effort on the part of appellant to unfairly deprive appellee of any commission due her. DPOR Board of Real Estate Handbook (1979), § 12.15, states as follows:

In some rare cases, the owner may have so conducted himself as to be liable for a full commission to both brokers but if he has respected the right of both and has acted in good faith, he is liable for only one commission.

Since appellant acted reasonably in assuming that Lassere was the procuring cause of the sale in this case and since prior to paying the commission to Lassere, appellant had no notice from appellee Boner or from any other source that Lassere might not have been the procuring cause of the sale, there is no basis on which to find him liable for a double commission.

REVERSED.

MILLS, C. J., and SHIVERS, J., concur.