author: SHARP, Judge. PER CURIAM.

text:
    ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, Appellant, v. John W. TURNER, Jr., Volusia County Property Appraiser and Robert D. Summers, Director of the Revenue Division of Volusia County, Florida, Appellees.
    No. MM-130/T1-20.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    On Rehearing May 21, 1980.
    Cynthia S. Tunnicliff, of Spector & Tun-nicliff, P.A., Tallahassee, for appellant.
    William M. Barr, of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for appellees.
   SHARP, Judge.

The Atlantic International Investment Corporation appeals a judgment entered after a nonjury trial which sustained a 1977 ad valorem property tax assessment imposed by the county property appraiser on appellant’s eight thousand acres of land in Volusia County known as “Cape Atlantic Estates”. The appellant’s development of the land as a subdivision was delayed from 1971 through 1977 by difficulties with local, state and federal agencies. The appellant argues that these development problems were not given sufficient consideration by the county tax appraiser in arriving at a “just valuation” under Section 193.011, Florida Statutes (1979).

At the trial Mr. Gary Bullard testified as an expert for the taxpayer on value and Mr. Frank DeBartolo testified as an expert for the county. There was substantial conflict' in their testimonies which the trial court resolved in favor of the county:

4. The Court has heard the testimony of all of the witnesses and it has carefully considered all of the testimonial and documentary evidence adduced. Substantial conflict exists between the opinions and conclusions of the plaintiff’s appraisal expert, Mr. Gary Bullard, and those of Mr. Frank DeBartolo, the Property Appraiser’s Chief Property Evaluator. The Court finds that the conflict in the evidence and the difference of opinion between the plaintiff’s and the defendants’ valuation experts, must be resolved in favor of the defendants.

The trial court also found:

. that the assessments of the subject property complied with applicable legal requirements, including those specified in Sections 193.011 and 194.011, Florida Statutes. The Property Appraiser properly considered the various valuation factors enumerated and specified in Section 193.011 Florida Statutes, and he gave due consideration to the permitting • restrictions and problems which plaintiff has experienced with respect to the subject property.

We must affirm the trial judge unless the finding is manifestly unreasonable and clearly against the weight of the evidence. Dean v. Palm Beach Mall, Inc., 297 So.2d 298 (Fla.1974); Blake v. Farrand Corp., Inc., 321 So.2d 118 (Fla. 3d DCA 1975); Walker v. Connolly, 299 So.2d 67 (Fla. 1st DCA 1974); Hill v. Coplan Pipe & Supply Co., Inc., 296 So.2d 567 (Fla. 3d DCA 1974); Dade County v. Miami Herald Publishing Co., 285 So.2d 671 (Fla. 3d DCA 1973); Alter v. Finesmith, 214 So.2d 732 (Fla. 3d DCA 1968). Reversal may also be necessary if the property assessor failed to consider one of the elements required by Section 193.011. Straughn v. Tuck, 354 So.2d 368.(Fla.1977).

Section 193.011 sets forth a number of factors for the property appraiser’s consideration in arriving at “just valuation”:

(1) The present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length;
(2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
(3) The location of said property;
(4) The quantity or size of said property;
(5) The cost of said property and the present replacement value of any improvements thereon;
(6) The condition of said property;
(7) The income from said property; and
(8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing and allowance for unconventional or atypical terms of financing arrangements. .

The taxpayer’s expert witness, Mr. Bullard, testified that the land was worth between $150.00 to $200.00 per acre, a “nominal value.” However he had no comparable sales data to support his figures. He appraised the Turnball Hammock tract adjoining the subject property on the east at $500.00 per acre, although most of that land is under water and totally unusable. The taxpayer’s land contains 20 to 25 percent low land, but the balance is high, good land. Mr. Bullard also appraised the Dunn tract at $900.00 per acre. Its topography is similar to the taxpayer’s land, although its access is poorer; and it has a larger percentage of low land. Mr. Bullard admitted he was not familiar with the dimensions of the taxpayer’s land and the ratio of its high to low lands; and he was unaware that U.S. Route 1 crossed the south part of the tract.

In contrast, Mr. DeBartolo testified with considerable knowledge about the tract itself, and recent sales of comparable tracts in the county. Like the subject land, they were raw hammock lands without any roads or drainage facilities. The highest and best use for these lands, in Mr. DeBartolo’s opinion, was as rural subdivisions. The highest recent sales Were at $2,500.00 per acre; and the lowest was the Dunn tract at $500.00 per acre. The Dunn sale was out of an estate, and in Mr. DeBartolo’s opinion, was below market value. The “worst” lands in the county were selling at $400.00 per acre. Atlantic’s tract has a relatively high percentage of “good” or “high” land in comparison with neighboring tracts. It also has good access on U.S. Route 1, and two paved county roads.

Atlantic acquired these lands in 1968 as part of a 14,000 acre tract. It divided the tract into 2Vá acre parcels and sold them largely to out of state purchasers. By 1972, approximately 95% of the land had been sold under unrecorded agreements for deeds and by 1975, 25% of the deeds had been paid off. Considerable mapping, surveying and engineering had been done on the tract. Mr. DeBartolo testified that he knew that the taxpayer had been unable to obtain permits from various governmental agencies to put in the roads and drainage planned for the subdivision, and that the taxpayer was obligated under the agreements for deed, to complete these improvements. Mr. DeBartolo testified that in his opinion the taxpayer’s land was conservatively appraised at $700.00 per acre. Had it not been for the difficulties and delays encountered in putting in drainage and roads by the taxpayer, Mr. DeBartolo would have valued the land at $1,500.00 per acre. Because of these delays, he reduced the value to $700.00 per acre, which was close to “raw land value” even though most of the tracts had been sold as rural subdivision plots under contracts for deed.

Atlantic argues that Mr. DeBartolo failed to give sufficient weight to the taxpayer’s difficulties and problems in developing the property. In appellant’s view, the delays constituted a “moratorium”, which prevented development and rendered the property useless and of nominal value only. But the existence of a “moratorium” is only one factor listed in Section 193.011. It should not be the sole consideration, absent any showing that the moratorium or delayed development is permanent.

The weight to be given all of the factors set forth in Section 193.011 is left to the discretion of the property appraiser. We should not disturb his opinion if he duly considered all of them. Lanier v. Walt Disney World Co., 316 So.2d 59 (Fla. 4th DCA 1975); Straughn v. Tuck, 354 So.2d 368 (Fla.1977). Mr. DeBartolo discounted the value from $1,500.00 per acre to $700.00 per acre because of the permit problems encountered. He considered the “moratorium”, but refused to allow it to reduce the appraisal to “nominal value”. We find no error in his opinion, nor the manner in which he reached it.

The record supports Mr. DeBartolo’s opinion that the appellant’s difficulties in developing the tract have not reduced its market value to something approaching “nominal” value. Neighboring hammock tracts were selling for prices well above $700.00 per acre, and even the lowest swamp land was selling at $400.00 per acre. Further the taxpayer’s development problems in this case were to some degree self-created. Without any consideration for the natural contour and topography of the land, Atlantic laid out a grid-development pattern for streets and drainage, which in the words of its own witness, was a “terrible development design.” And further, it locked itself into the plan by selling the parcels in advance of completing the development or receiving needed approvals for it. Other developers of other hammock tracts might not face such a long delay because they can choose a different and perhaps better development plan. But is it fair and equitable to have the neighboring tracts bear the full burden of taxation and this taxpayer escape any because of its poor planning? The mandate of “just valuation” for taxation has as one of its goals uniformity of treatment of taxpayers. Spooner v. Askew, 345 So.2d 1055 (Fla.1976). Too great an emphasis on any one factor, like too limited a view of the highest and best use of the land could destroy that goal. See Dade County v. Miami Herald Publishing Co., 285 So.2d 671 (Fla. 3rd DCA 1973).

We find no error in the expert’s determination of value, and the trial judge’s findings based thereon.

The judgment appealed is AFFIRMED.

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

UPON MOTION FOR REHEARING

PER CURIAM.

It has been brought to our attention we overlooked in our written opinion, the case of Atlantic International Investment Corporation v. Turner, 381 So.2d 719 (Fla. 5th DCA 1980), which was decided by a panel of judges from our sister court, the First District Court of Appeal, with one judge dissenting. We recede from the holding in that case.

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


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    P.A.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-1219.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    James R. Long, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

P.A.P., a child, appeals an order of the juvenile court adjudicating him delinquent and an order committing him to the Department of Health and Rehabilitation. He was charged with twelve counts of theft, in violation of Section 810.02, Florida Statutes. After trial before the court, he was found not guilty of eight counts (one charge involved a separate case not involved in this appeal). Appellant was found guilty as charged in counts 3, 5, 8, and 9.- This appeal followed timely.

Appellant contends that the evidence introduced against him was insufficient to support a finding that he was guilty of the offense charged in each count. We agree with him as to counts 5, 8, and 9, but disagree as to count 3.

The state relied to a great extent on the testimony of one Wilk, one of appellant’s coperpetrators. We did not have all of Wilk’s testimony before us. We ordered that the deleted portions be transcribed and made a part of the record, but were advised that the testimony had only been taped, had subsequently been erased, and was therefore not available.

After reading the testimony included in the record, we conclude that the evidence concerning counts 5, 8, and 9 falls far short of the standard of proof required to convict. The standard of proof necessary to adjudge a minor delinquent is the same as that required to convict an adult. R.C.B. v. State, 374 So.2d 1168 (Fla.2d DCA 1979); J.L.J. v. State, 367 So.2d 699 (Fla.2d DCA 1979); D.M.M. v. State, 275 So.2d 308 (Fla.2d DCA 1973).

We are unable to find any evidence that would have placed appellant in each residence at the times in question. The evidence concerning this issue consisted primarily of Wilk’s testimony. His testimony is vague and indefinite, amounting to nothing more than, at most, suspicious circumstances and as such is simply insufficient to support a conviction. Hall v. State, 303 So.2d 428 (Fla.2d DCA 1974). For example, he could not remember the dates the burglaries took place, identify the places where they occurred, or remember what property was stolen.

We conclude that the evidence was insufficient to support appellant’s convictions of counts 5, 8, and 9.

We have considered the other points raised by appellant and judge them to be without merit.

The convictions are REVERSED as to counts 5, 8, and 9, and AFFIRMED as to count 3. The order of commitment is AFFIRMED.

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


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. David PEREZ et al., Appellees.
    Nos. 79-165, 79-169, 79-170, 79-181 and 79-256.
    District Court of Appeal of Florida, Second District.
    April 18, 1980.
    Jim Smith, Atty. Gen., Tallahassee, Charles Corees, Jr., Eula Tuttle Mason, William I. Munsey, Jr., Robert J. Landry, Asst. Attys. Gen., Tampa, and Bruce Hinshel-wood, Asst. State’s Atty., Orlando, for appellant.
    Alan S. Ross of Weiner, Robbins, Tunkey & Ross, P. A., Miami, for appellees Comi-era, David Perez, and Capestany.

      William Plowman, Tampa, for appellee Chambrot.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellee Campaz.
    Raymond R. Pines, Tampa, for appellee Hector Rodriquez.
    Melvyn Kessler, Miami, for appellees Avila, Serrano, Luis Perez, Escorcia, and Cortez.
    Lawrence Scott, Tampa, for appellees Cardosa, Camejo, and Romero.
   DANAHY, Judge.

The state appeals from orders of dismissal entered by the trial judge on motions to dismiss filed by all defendants. The trial court granted the motions after finding that each defendant had been prejudiced by the state’s failure to comply with discovery. But the state contends in part that certain defendants are not able to show prejudice from the state’s violation of the discovery rules because those defendants have filed waivers of the speedy trial time. We agree with the state’s contentions.

Five of the defendants, Antonio Avila, Carlos Serrano, Luis Perez, Jorge Luis Escorcia and Alberto Cortez, filed waivers of speedy trial. Nonetheless, the trial court granted their motion to dismiss on the basis of a finding of prejudice arising out of the state’s failure to comply with discovery rules. We find that the granting of the motion to dismiss as to these five defendants was an abuse of discretion. Dismissal is an extreme sanction which should be imposed only when less severe sanctions would not accomplish the desired result. State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979). Although the waiver of speedy trial time does not excuse the state’s discovery violations, it does prevent these five defendants from showing sufficient prejudice to justify the dismissal. Since Avila, Serrano, Perez, Escorcia and Cortez had all filed waivers of speedy trial, a more appropriate sanction, among others available to the court, would have been the continuance of the trial for a period of time sufficient to allow the defendants to obtain discovery and prepare for trial. Since lesser sanctions could have been imposed to remedy any prejudice there might be to these defendants, dismissal was too harsh.

The dismissal of the charges against Antonio Avila, Carlos Serrano, Luis Perez, Jorge Luis Escorcia, and Alberto Cortez is reversed. The orders dismissing the charges against the remaining defendants are affirmed.

OTT, Acting C. J., and RYDER, J., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. William H. BOLTON, Appellee.
    No. 79-1703.
    District Court of Appeal of Florida, Second District.
    April 23, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   CAMPBELL, Judge.

Appellee was indicted for second degree murder, tried by jury and found guilty. He did not testify in his own behalf nor offer any other evidence at the trial. Early in his opening argument, defense counsel stated to the jury:

As His Honor, Judge Ulmer, indicated this is both my opportunity and Mr. Man-der’s [Assistant State Attorney] opportunity to give you our ideas or concepts of what we think the evidence showed or might not have shown you and I guess the best place to start with that is at the beginning of the testimony that the State adduced from its various witnesses.

He then proceeded to argue about blood stains and lack of blood stains; classification of certain blood stains by type and lack of classification of others; ballistics tests on bullets test-fired from weapons and lack of such evidence in regard to the projectile causing the victim’s death; fingerprint evidence and comparison and lack of it; failure of police officers to check for certain evidence that might have led them to conclude that other parties were also involved in the victim’s death. Defense counsel concluded by arguing at length that the defendant was telling the truth in a tape recorded statement given to the police and played by the state at the trial. With respect to that recorded statement, defense counsel argued:

How did that blood get on his shirt and inside his boot if this gentleman was not telling the truth to Lieutenant Howell?
There can only be one answer, he was telling the truth. He was telling the truth throughout and they tried to trick him on three or four times they tried to trick him saying, come on now, Hubert, come on now, Hubert, Buck is gonna come around and he’s gonna tell us. And what did he say? I did not cut him, I did not shoot him, I did not hurt him. I didn’t kill anyone. .
Let’s look at some of the things that the State didn’t prove. Remember the tape, let’s go back to the tape. Lieutenant Howell’s saying to Mr. Bolton: Hubert, have you shot a gun lately? No, sir. When is the last time you shot a gun, Hubert? Six or eight months ago. Well, Hubert, remember that test I just gave you, that stuff I just put on your hands when we send that to the FBI Lab, it will prove whether you shot a gun recently. Where is that test? The State hasn’t come in here and showed you any kind of test proving Mr. Bolton fired any gun. Where is this test they put on his hands that Lieutenant Howell testified to? Maybe it will show that he didn’t fire any gun. Ask' yourself that, why didn’t the State put that on? Why didn’t they put that on? Lieutenant Howell said we’ll send it to the FBI and it will prove whether you fired a gun recently, it will prove whether you fired a gun recently. Where is it? Throughout that tape, Mr. Bolton as best he could and as best as the Zephyrhills Police Department were trying to get him to say, I did it, they even said: Well, Hubert, if it was self-defense, let us know, and this man sat there and said: I didn’t do it, I didn’t do it. And the State has brought him in here and have they proved that he did it to you? I didn’t do it, I didn’t hurt anybody, over and over and over in a half hour over and over: I didn’t hurt anybody, I didn’t cut anybody, I didn’t shoot anybody, over and over again. Well, Hubert, we’ll prove it because we’ll put this stuff on your hands, but they don’t bring it in here and tell you people what that thing proved.

In its closing arguments, the state argued:

So at this point, you may feel a little frustrated and a'little clouded and after Mr. Sestak’s first discussion with you, you may still feel that way because as any good defense attorney will do, he’ll try to raise a smoke screen. He’ll try to keep it clouded, he’ll try to keep the procedural technicalities and the long, drawn out trial, and the bits and pieces clouded and throw things up in the air and try to leave you the impression that it’s not clear what happened, which really isn’t the case and I’ll go into that shortly. But let me remind you that my burden of proof is not to prove just anything. The Judge will tell you that I have to prove the material elements of this crime, that’s it. That’s what I have to prove.
The Judge will tell you what each of those elements are. When you listen to Mr. Sestak and evaluate what he said already and what he says next time, you see if the things he’s talking about really make a difference in this case, they really affect the material elements, or is he just throwing up a smoke screen? Just to give you an idea, let me go over a few things that he’s mentioned to you already.
First of all, he never told you what his defense was. One of four things had to happen — (interrupted) (emphasis added).

That interruption in the above quote was an objection by defense counsel that “I don’t have to prove anything.” The trial judge had the jury cleared from the courtroom, called a bench conference with the attorneys, heard their arguments and defense counsel’s motion for mistrial. The trial judge at that point had the court reporter read back to him the argument of the assistant state attorney. It is of note that defense counsel never specifically objected to the argument on the basis that it was a comment on the failure of the defendant to testify. . Though admittedly it is a fine distinction and does not control this decision, his objection was repeatedly that the state had the burden of proof and that he was not required to do or say anything: “I can stand here mute.” (emphasis added).

Immediately after the court reporter read the argument back to him, the trial judge denied the appellee’s motion for mistrial. The state then continued its argument as follows:

Ladies and gentlemen, as I was saying, Mr. Sestak was simply throwing up a smoke screen, he wasn’t addressing one of the four things that had to have occurred here. Either the defendant did it and it was an accident, the defendant did it and it was justified, both of which will be defined by the Judge. The victim killed himself, or the defendant did it unlawfully or somebody else did it. I guess it could have been five things.

After his conviction, appellee filed a motion for new trial, alleging as one of eight grounds:

The Court erred‘in refusing Defendant’s Motion for a mistrial after the prosecutor’s comment, in closing, that:
“Mr. Sestak (defense counsel) hasn’t told us what his defenses are”
in lieu of the fact that the defense offered no testimony, did not put on a case, and did not invite the comment in Defendant’s first closing argument.

The trial judge considered letters from both counsel which called the court’s attention to various cases concerning whether or not a prosecutor’s arguments contained statements calling attention to the failure of a defendant to testify. He denied the motion for new trial on all grounds except that quoted above. In granting the motion on that ground, the trial judge commented:

The Court has carefully considered the citations of authority presented by both the Defense and the State and has concluded that there appears to be to some extent a split of authority as between District Courts of Appeal in the state of Florida with respect to the issue before the Court. Upon consideration, the undersigned finds controlling the case of Young v. State, Fla.App., 280 So.2d 13, (2nd Dist.Ct.App., 1973), and based upon said opinion, makes the further finding that, taken in full context, the statement of the Assistant State Attorney that is in issue falls outside of the acceptable boundaries that have been established with respect to prosecutorial comments and that same constitutes clearly a comment upon the failure of the Defendant, WILLIAM H. BOLTON, to testify as a defendant in his criminal case.

While fully recognizing and endorsing a trial court’s wide discretion in granting new trials, there are several reasons why the granting of the motion for a new trial here should be reversed. First, one reason for the wide discretion given trial judges in granting a new trial based on a motion such as was made here is that the trial judge is present when the objected to statements are made. They observe what has taken place, hear the inflections and mannerisms of counsel and are able to make an immediate determination of the effect of the comments on the jury. Here, the trial judge had the remarks of the state read back to him and immediately denied the motion for mistrial. It was not until the subsequent motion for new trial and his consideration of what he considered a split of authority that the trial judge in an obvious exercise of caution granted the motion. Although he found the decision of this court in Young v. State, 280 So.2d 13 (Fla. 2d DCA 1973) to be controlling, it is in fact distinguishable in several crucial respects.

In Young, the state presented evidence which this court found to be almost entirely circumstantial and which “was not overwhelming nor all conclusive.” 280 So.2d at 13. The evidence in the case sub judice was not primarily circumstantial and was much more conclusive. During closing argument, the prosecutor in Young made the following statement to the jury:

Because the Defendant has not presented a defense today — there’s only one thing that we know about this case, and that is that nobody saw him take the money, (emphasis added).

Unlike the situation in the instant case, the trial judge there, after objection by defense counsel, had the statement read back to him in the presence of the jury. This had the effect of emphasizing to the jury the defendant’s failure to-explain the circumstantial evidence against him. That statement was clearly directed at the defendant. Here, on the other hand, the remarks of the prosecutor were clearly directed at defense counsel and not at the failure of the defendant to testify. The prosecutor was pointing out the failure of defense counsel to specify in his argument which of the possible defenses he argued to the jury he was relying on. Even defense counsel recognized that by couching his objections in terms of “I don’t have to prove anything, I don’t have to tell the jury or tell anybody else what my defense is.” (emphasis added). He consistently repeated his objection to the trial judge in that type language. He never complained that it was a comment on the defendant’s failure to do anything.

It has long been held by the courts of this state that the state has a right in a criminal trial to direct the attention of the jury to the posture of the case before the jury. No error is committed as long as it does not comment directly or covertly upon the failure of the accused to testify. Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968).

The federal courts have clearly supported the right of the prosecutor to comment on the failure of the defense, as opposed to the defendant, to explain testimony. For example, in United States v. White, 444 F.2d 1274 (5th Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 300, 30 L.Ed.2d 266 (1971), the court held:

It has long been the law in federal courts that remarks about the defendant’s failure to testify constitute reversible error. Such statements infringe on the defendant’s presumption of innocence and violate his Fifth Amendment right against self-incrimination by converting silence to evidence of guilt. 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
The test in determining whether such a transgression has occurred is whether the remark was manifestly intended or was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Samuels v. United States, 398 F.2d 964 (5th Cir. 1968), cert. den. 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969).
The remark here made does not meet that test. The record reveals that when he was interrupted, the prosecutor was attempting to say that the defendant did not have to take the stand in order to rebut the presumption of possession of recently stolen property, but could introduce other evidence. He was trying to point out the necessity for some evidence in the defendant’s case to rebut the legal presumption. It does not appear that the jury would have understood the remark otherwise. Luke and Henry v. Wainwright, 431 F.2d 485 (5th Cir. 1970); Garcia v. United States, 315 F.2d 133 (5th Cir. 1963); Samuels v. United States, supra; Williams v. Wainwright, 416 F.2d 1042 (5th Cir. 1969); Parks v. Wainwright, 429 F.2d 1240 (5th Cir. 1970).
In any event, with no manifest intention on the part of the prosecutor to comment in such a way as to make defendant’s failure to take the stand evidence for jury consideration, and with positive instructions to the jury by the court that nothing was to be considered or presumed from this fact, and in the light of the weight of the evidence, any impropriety in the remark and the way it was made must be held to be harmless error beyond any reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

See also, United States v. Dearden, 546 F.2d 622 (5th Cir. 1977).

Finally, this is a classic situation where defense counsel, by his own arguments in throwing out to the jury several alternative theories whereby they could find for the defendant, invites the state to challenge him to tell the jury his theory of defense. Waid v. State, 58 So.2d 146 (Fla.1952); Pinkney v. State, 142 So.2d 144 (Fla. 2d DCA 1962).

The remarks by the assistant state attorney below were within proper bounds, and the granting of the new trial based thereon was error.

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


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. John BUFFORD, Appellee.
    No. 78-2466/T4-293.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    As Clarified On Denial of Rehearing May 27, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div. Asst. Public Defender, West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

The order discharging appellee is reversed because no violation of the Speedy Trial Rule was committed by failing to bring the appellee to trial within 180 days of having been taken into custody. Rule 3.191, Fla.R.Crim.P. (1977). Even though appellee was not tried within the 180 days, his case was taken out of the operation of that rule by his having moved for and obtained a continuance. State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978), cert. denied 360 So.2d 1249 (Fla.1978). The appellee was also not entitled to a discharge because the trial court had earlier properly granted a continuance requested by the appellant. Kurtz said:

We also hold that the State’s proper Motion for Continuance, which was granted, also took this matter out of the strict operation of the Speedy Trial Rule.

Id. at 892.

In granting the appellee’s motion for discharge in this case, the trial court relied upon State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978), cert. denied 365 So.2d 715 (Fla.1978), which is apparently in conflict with Kurtz and Coppola v. State, 318 So.2d 181 (Fla.2d DCA 1975), aff’d 337 So.2d 779 (Fla.1976).

While we agree confusion has naturally resulted from the Kurtz and Reese decisions, we will attempt to clear up the matter. We agree with Kurtz which says when either the defendant or the state is properly granted a continuance then the matter is taken out of the operation of the Speedy Trial Rule and the defendant is entitled to a speedy trial only within the constitutional guidelines as expressed, for example, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The only manner in which the Speedy Trial Rule is brought back into operation is if the defendant files a motion for discharge and then the defendant must be brought to trial within 90 days after that motion is filed. This is in accordance with, and within the limits defined in, State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), and Coppo la v. State, 337 So.2d 779 (Fla.1976). Rule 3.191(d)(3), Florida Rules of Criminal Procedure (1977), is the applicable rule and it provides the framework within which the foregoing cases rest.

It is our holding that if a defendant requests and is granted a continuance, he can no longer claim entitlement under Rule 3.191, Florida Rules of Criminal Procedure (1977), except within the limited circumstances in Rule 3.191(d)(3), Florida Rules of Criminal Procedure (1977).

We also hold that the state’s properly granted motion for continuance takes the matter out of the operation of the Speedy Trial Rule. Additionally, we hold that if after the later of either the foregoing circumstances occur the defendant files a motion for discharge, then the defendant must be brought to trial within 90 days of the filing of the motion to discharge or within 180 days from when the defendant was first taken into custody”, whichever is later.

This decision is in direct conflict with State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978).

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    Rene ALFARO and Evelio Santa, Petitioners, v. The STATE of Florida, Respondent.
    No. 80-22.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied June 10, 1980.
    Albert P. Rosillo, Miami, for petitioners.
    Janet Reno, State’s Atty. and Arthur Joel Berger, Asst. State’s Atty., for respondent.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Certiorari denied. See State v. Coyle, 181 So.2d 671 (Fla.2d DCA 1966); Moore v. State, 355 So.2d 1219 (Fla.1st DCA 1978).

BASKIN, Judge

(dissenting).

I disagree with the opinion of the majority of this court denying certiorari. In my view, defendants’ rights against unlawful search and seizure under the Fourth Amendment were violated by the unauthorized clandestine surveillance of the men’s, restroom in the Coral Gables Bus Terminal by police officers.

Defendants were in the rest room in which two one-way glass mirror observation areas were located in the ceiling permitting officers to observe the entire men’s rest room. Defendants were observed engaging in homosexual activities and charged with committing unnatural and lascivious acts. A sign on the back wall announced, in English only, that the rest room was under 24-hour surveillance by police. No testimony was presented as to whether defendants could read English.

In Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967), the court stated:

Searches conducted without warrants have been held unlawful “notwithstanding facts unquestionably showing probable cause,” Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires “that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. “Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.

The cases cited by the majority, State v. Coyle, 181 So.2d 671 (Fla.2d DCA 1966) and Moore v. State, 355 So.2d 1219 (Fla.1st DCA 1978), followed principles enunciated prior to the decision of the Supreme Court of the United States in Katz, supra. Moore, supra, is distinguishable from the case at bar since in Moore defendants were in plain view, and the officer was in a place where he had the legal right to be.

In the case before this court, defendants had a legitimate expectation of privacy from observation through the ceiling conducted without prior magistrate approval. The surveillance, on a 24-hour basis without regard to probable cause requirements, was unreasonable.

[C]riminal acts are often committed inside rest rooms within plain view of any member of the public who should happen to enter. Under such circumstances, the police need not resort to clandestine observation to apprehend individuals involved in such activities. When law enforcement officers suspect that crimes are being perpetrated, they are as free to enter rest rooms as is any member of the public. Should they discover from a location open to the public, the commission of criminal acts, their observation of what is in plain view involves no search, and is not subject to the strictures of the Fourth Amendment.

People v. Triggs, 8 Cal.3d 884, 506 P.2d 232, 106 Cal.Rptr. 408 (1973).

For these reasons, I would grant certiora-ri to review the decision of the circuit court in its appellate capacity, which constitutes a departure from essential requirements of law, and reinstate the original order entered by the trial court suppressing evidence relating to the unlawful search and seizure.


author: PER CURIAM.

text:
    Billie Earl HETHCOAT, as Administratrix of the Estate of William Randolph Eatman, Jr., Deceased, Appellant, v. CHEVRON OIL CO., Hy-Way Heat Systems, Inc., and V. E. Whitehurst & Sons, Inc., Appellees.
    No. FF-387.
    District Court of Appeal of Florida, First District.
    April 30, 1980.
    As Corrected On Denial of Rehearing June 3, 1980.

      Robert C. Dean, William C. Owen of McClure, Wigginton, Campbell & Owen, Tallahassee, for appellant.
    Bruce S. Bullock, Jacksonville, Wilson Sanders and Monroe E. McDonald of Sanders, McEwan, Mims & McDonald, Orlando, Robert L. Cowles, Jacksonville, for appel-lees. .
   PER CURIAM.

By opinion on rehearing the Supreme Court of Florida quashed the decision of this Court in Hethcoat v. Chevron Oil Co., 364 So.2d 1243 (Fla. 1st DCA 1978), and remanded for consideration only as to ap-pellee, Hy-Way Heat Systems, Inc. Hethcoat v. Chevron Oil Co., 380 So.2d 1035 (Fla.1980). The decision of this Court as to appellees Chevron Oil Company and V. E. Whitehurst & Sons, Inc., was approved.

Upon reconsideration of our decision with respect to appellee Hy-Way Heat Systems, Inc., in light of the Supreme Court’s decision in Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979), rejecting the “patent danger doctrine” as an absolute defense in products liability cases, we find as follows with respect to the points raised by appellant on this appeal:

1. The trial court erred in granting a directed verdict in favor of Hy-Way Heat Systems, Inc.

2. The trial court erred in not permitting appellant’s engineering expert to express his opinion in response to a hypothetical question presented to him as to the efficiency of the venting system of the heat tank to remove vapors so as to exclude the possibility of a combustible mixture existing in the heat tank.

3. While evidence of postaccident remedial and precautionary measures undertaken and recommended by a defendant is, as a general rule, not admissible evidence as proof of the defendant’s negligence in not having taken such remedial action prior to the accident, Hy-Way Heat Systems, Inc., opened the door to such evidence on rebuttal by presenting testimony of its president which had the effect of indicating to the jury that it had made no changes in its recommendations as to use of the tank subsequent to the accident.

The final judgment is affirmed as to appellees Chevron Oil Company and V. E. Whitehurst & Sons, Inc., but is reversed and remanded for a new trial as to Hy-Way Heat Systems, Inc. Since the case is to be retried, we consider that the directions of the Supreme Court in Linder v. Combustion Engineering, Inc., 342 So.2d 474, 476 (Fla.1977), as follows are now applicable to this action:

[2] Under the circumstances, we hold that the doctrine of strict liability as announced in West shall be applied as follows:
‡ ‡ * sfc }fc ;fc
(2) As to those cases already commenced, but in which trial has not yet begun, the strict liability rule shall be applicable.

Prior to new trial, appellant shall be allowed, if he so desires, to amend his complaint to seek relief under the doctrine of strict liability in tort under the principles announced by the Florida Supreme Court in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), appellant having sought and been denied such amendment during the course of the previous trial.

McCORD, ROBERT P. SMITH, Jr. and LARRY G. SMITH, JJ., concur.


text:
    INSURANCE MANAGEMENT CORPORATION, a Florida Corporation, Appellant, v. BILL BRANCH LEASING, INC., a Florida Corporation, Appellee.
    No. 80-121.
    District Court of Appeal of Florida, Second District.
    April 30, 1980.
    William A. Donovan, of Napier & Donovan, Naples, for appellant.
    Gerald W. Pierce, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lee.
   PER CURIAM.

Affirmed. Stanley Builders, Inc. v. Nacron, 238 So.2d 606 (Fla.1970).

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


text:
    Richard W. TOBIAS, Appellant, v. Bonnie K. TOBIAS, Appellee.
    No. 79-1007.
    District Court of Appeal of Florida, Second District.
    May 2, 1980.

      Wayne J. Boyer of Boyer & Fricker, and Keith K. Mattson of Legal Clinic of Tampa Bay, Clearwater, for appellant.
    No appearance for appellee.
   PER CURIAM.

Reversed on the authority of Johnson v. Johnson, 284 So.2d 231 (Fla. 2d DCA 1973).

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


author: SHARP, Judge.

text:
    In re The Interest of A. Z., a child, Appellant, v. STATE of Florida, Appellee.
    No. OO-215/T1-114.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Jonathan Hewett, Daytona Beach, for appellant.
    James G. Mahorner, Asst. Gen. Counsel, Dept, of Health & Rehabilitative Services, Tallahassee, for appellee.
   SHARP, Judge.

The child’s mother appeals the trial court’s order adjudicating her child a “dependent” child within the meaning of chapter 39, Florida Statutes, and providing that she be placed in foster care under the supervision of the Florida Department of Health and Rehabilitative Services. The appellee, represented by counsel with HRS, also asks that the order be reversed because HRS sought only protective supervision for the child in her own home, and the court’s order exceeded that recommendation. We do not reach the questions raised in this appeal by HRS because we find the order appealed not sustainable in any respect because of the manner in which the adjudicatory hearing was conducted.

A petition was filed alleging A. Z. was a dependent child because of excessive truancy and the apparent inability of her mother to control her. The final hearing was set, and the mother and child appeared. Neither was represented by counsel, nor were they told of their rights to be represented. Section 39.406, Florida Statutes (1979), requires the court to advise the child or parent, prior to an adjudicatory hearing, of the right to counsel. Contrary to this statute, the court did not ask them if they wanted to be represented, nor did it offer to appoint counsel if they could not afford to retain their own attorney. Nor was the state represented by counsel.

The Florida Department of Health & Rehabilitative Services submitted various reports concerning A. Z. and her family to the court, including school records. No copies were furnished to the mother and child prior to the hearing; nor were they given a chance to review them at the hearing. The court used the materials in formulating its decision, and asked questions, based on the documents. The written materials, however, were not identified, authenticated, nor placed in evidence. A. Z., and her mother testified, as did a visiting teacher and an HRS counselor. Another HRS counselor and another visiting teacher were present, but they did not testify. No one was placed under oath, and the hearing was conducted by the court’s asking questions. The child and her mother were not given an opportunity to ask the other witnesses any questions. The hearing concluded in approximately ten minutes.

This adjudicatory “hearing” violated almost every principal of due process under the United States and Florida Constitutions, as well as various provisions of chapter 39, Florida Statutes. Dependency, adjudications must be conducted pursuant to the státute, and with regard for procedural and substantive due process. We echo the sentiments of the United States Supreme Court in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972):

The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential, basic civil rights of man; and rights far more precious than property rights.’ It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligation the state can neither supply nor hinder. The integrity of the family unit has found protection in the Due Process clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Ninth Amendment. (Citations omitted.)

Id. at 651, 92 S.Ct. at 1212.

We are aware of large case-load pressures on the juvenile courts in this state, and we are sympathetic. However we cannot tolerate such a perfunctory procedure as was conducted in this case. The order of the trial court and any subsequent orders based on it are vacated and reversed.

REVERSED.

CROSS, J., and BROWNLEE, JACKSON 0., Associate Judge, concur.

      . For cohtested proceedings, the state must be represented by counsel. § 39.404, Fla.Stat. (1979). There may have been some confusion as to whether or not a “contested” proceeding was being held, but A. Z. and her mother clearly were objecting to the adjudication.

      . U.S.Const. Amends. V, XIV; Art. I, § 9, Fla. Const. See In the Interest of Baby Boy S, 349 So.2d 774 (Fla. 2d DCA 1977); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); In the Interest of C. P., 193 So.2d 33 (Fla. 3d DCA 1966); In the Interest of C. M. M., 364 So.2d 788 (Fla. 1st DCA 1978); Hill v. Sadler, 186 So.2d 52 (Fla. 2d DCA 1966); In Re Brown, 246 So.2d 166 (Fla. 3d DCA 1971).

      . Some procedural safeguards set out in chapter 39, Florida Statutes (1979), are:
      (1) The rule of evidence used in civil cases is to be applied in adjudicatory hearings, § 39.-408(1);
      (2) A preponderance of evidence is required to establish dependency, ! 39.408(1);
      (3) A child or parent shall be informed of the right to counsel, § 39.406;
      (4) The adjudicatory and disposition hearing are not to be held together without the prior consent of the parent, § 39.408(2);
      (5) Parties are entitled to procedures to insure a fair hearing, § 39.001(2)(d).


author: DOWNEY, Judge.

text:
    CAPITAL AMERICA, INC., a Florida Corporation, Appellant, v. INDUSTRIAL DISCOUNTS, INC., a Minnesota Corporation licensed to do business in the State of Florida, B.E.C., Inc., Robert L. Stephens, Individually, William W. Eastman, Individually, Landmark First National Bank of Fort Lauderdale, a banking institution, a/k/a Landmark Banking Corporation of Florida, Lee Amirkanian, Lester H. White and Lawyers’ Title Guaranty Fund, Appellees.
    No. 77-2605.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Rehearing Denied June 11, 1980.
    Charles R. Morgan and Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.
    Fred S. Schmunk, Jr., Fort Lauderdale, for appellee Lester H. White. •
    Robert N. Fryer, Jr., of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellee Lawyers Title Guaranty Fund.
   DOWNEY, Judge.

This is an appeal from two final judgments entered March 4, 1976, and April 13, 1977, holding that appellant, Capital America, Inc., was not entitled to recover in its suit for rescission and for subrogation rights to a mortgage title insurance policy.

Appellee B.E.C., Inc., owned certain real property in Broward County, Florida. Said property was "encumbered by three mortgages payable to Industrial Discounts Inc. (hereinafter referred to as IDI). B.E.C., Inc., negotiated a loan from appellee, Lester White, for $161,000 and agreed to give White a first mortgage on said property. The proceeds of the loan were to be used by B.E.C., Inc., to pay off the IDI mortgage and all liens held by the Internal Revenue Service. White furnished his lawyer, Zamer, with the proceeds of the loan which Zamer disbursed by paying the amount due to the IRS and the balance to B.E.C., Inc. B.E.C., Inc., furnished Zamer with satisfactions of the IDI mortgages, “a first mortgage” from B.E.C., Inc., to White and, after recording said instruments, issued to White a Lawyers Title & Guaranty Fund mortgagee title insurance policy for $161,000.

Approximately fifteen months later appellant, Capital America purchased the property in question from B.E.C., Inc., subject to the White mortgage. In due course the latter mortgage came due and Capital America paid it in full. Within a month or so thereafter IDI demanded payment on its three mortgages. When Capital America refused, this foreclosure proceeding was instituted.

IDI named as defendants B.E.C., Inc., Capital America, Lester White, Landmark First National Bank of Fort Lauderdale and others. Capital America counterclaimed against IDI and cross-claimed against B.E.C., Inc., White, Landmark Bank, Lawyers Title Guaranty Fund and others. By its crossclaim Capital America a) sought rescission against B.E.C., Inc., and White and b) subrogation to White’s rights against Lawyers Title Guaranty Fund on its mortgagee title insurance policy.

Prior to trial a default was entered against cross defendant B.E.C., Inc., and on March 4, 1976, the trial court dismissed Capital America’s crossclaim against Lawyers Title Guaranty Fund with prejudice. Capital America’s crossclaim against White and White’s crossclaim against Lawyers Title Guaranty Fund were tried by the court without a jury and final judgment was ultimately entered against appellant.

Appellant contends it was entitled to rescission against B.E.C., Inc., putting the parties back in status quo because B.E.C., Inc., was guilty of active fraud and misrepresentation in its dealings with Capital America. On the merits, if Capital America and B.E.C., Inc., were the only parties involved in a return to status quo, it would seem Capital America was entitled to prevail on that issue. In addition, a default had been entered against B.E.C., Inc, However, in order to return B.E.C., Inc., and Capital America to their original position it would also be necessary for Lester White to return to Capital America the money Capital America paid to White to retire his mortgage. Capital America sought rescission also against White but the trial court held that under the circumstances of this case Capital America was not entitled to rescission against W’hite, and we agree.

It must be remembered that White was a subject of B.E.C., Inc.’s fraud just as was Capital America. Had White known that IDI mortgages were not paid and the satisfactions furnished him were forgeries White would not have made the loan to B.E.C., Inc. Later when White accepted full payment of his mortgage from Capital America he still had no knowledge of the fraud perpetrated on him because B.E.C., Inc., had continued to pay the IDI mortgages for over a year after the White loan was consummated. The record further supports the trial court’s finding that White made no false representations to Capital America to induce it to buy the property or to pay off White’s mortgage when it was due.

Appellant contends that, as between the two innocent parties, White and Capital America, White’s negligence in not inquiring about the validity of the satisfactions and in not picking up the IDI promissory notes when the IDI mortgages were allegedly paid off enabled B.E.C., Inc., to defraud both White and Capital America and White should bear the loss. We have considered all of appellant’s arguments in support of this theory and find them to be without merit. We thus conclude that the trial judge was correct in denying rescission.

As an alternative theory of recovery appellant sought to be subrogated to White’s rights under his mortgagee insurance policy issued by Lawyers Title Guaranty Fund. The mortgagee insurance policy in question provides that the term “insured” thereunder includes “the owner of the indebtedness secured by the insured mortgage and each successor in ownership of such indebtedness.” Since appellant would be covered by said policy if appellant was an assignee of the mortgagee, it is contended that appellant should be subro-gated to White’s rights vis-a-vis the insurer. Appellant argues that legal subrogation arises by operation of law where one having a liability pays a debt due by another under such circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid. Boley v. Daniel, 72 Fla. 121, 72 So. 644 (Fla.1916). Appellant also relies upon the Restatement of Restitution, § 207, which provides that where the money of one person is wrongfully used to discharge a mortgage or other encumbrance upon a wrongdoer’s property the person is entitled to be subrogated to the rights of the mortgagee or other en-cumbrancer.

As against B.E.C., Inc., appellant would certainly fall within the above rule set forth in the Restatement of Restitution for B.E.C., Inc., was clearly a wrongdoer. But that application does not apply to White. He was duped by B.E.C., Inc., just as was Capital America. It must also be remembered that White’s mortgage was a bona fide lien on the property which appellant had assumed and agreed to pay. Furthermore, Capital America is not an assignee of the White mortgage and thus does not fit within the definition of an insured in the mortgagee policy. The mortgagee policy is an indemnity contract between White and Lawyers Title Guaranty Fund and there is no privity between appellant and Lawyers Title Guaranty Fund. Nor are there any of the elements of a third party beneficiary contract existent here.

Finally, appellant had an opportunity to insure its title when it bought the property from B.E.C., Inc. subject only to the White mortgage. That it failed to do and we find no justified compelling legal theory upon which appellant can now seek to impose liability upon Lawyers Title Guaranty Fund.

In our view the learned Chancellor properly resolved all of the issues in this case and should be affirmed.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.

      . The satisfactions which B.E.C., Inc. furnished to White’s counsel at the time of closing the White mortgage were forged.


author: ERVIN, Judge.

text:
    Anna LEGAKIS, Appellant, v. SULTAN & SONS and Cosmopolitan Mutual Insurance Company, Appellees.
    No. QQ-454.
    District Court of Appeal of Florida, First District.
    May 8, 1980.
    Rehearing Denied June 10, 1980.

      James F. Johnson, Jr., Fort Lauderdale, for appellant.
    Albert P. Massey, III of Pyszka, Kessler & Adams, Fort Lauderdale, for appellees.
   ERVIN, Judge.

In this workers’ compensation case, the claimant Legakis appeals an order of the judge of industrial claims holding that her head injuries, caused by a fall during the course of her employment, were not com-pensable because they did not arise out of her employment. We reverse. The narrow issue before us is whether Mrs. Legakis’s employment conditions contributed to a risk personal to her in a manner substantially different'from that which she would have encountered during her normal non-employment life.

Claimant, while operating a steam press for her employer, Sultan and Sons, inhaled vapor from a spray solution which was blown into her face by the press. The vapor caused a nauseous feeling and, when she turned her head abruptly to vomit, she fainted, and while falling backwards, struck her head on a desk. Claimant was examined by several physicians. One diagnosed a condition preexisting her accident, laby-rinthitis, which manifests itself, among other things, by dizziness. Another, a neurologist, also testified she suffered from laby-rinthitis, and with such a condition, a sudden turn of the head could produce vertigo, causing her to lose her balance and fall. Finally, an otolaryngologist stated that she might have allergic rhinitis which could have caused her to faint after inhaling a chemical starch spray. In denying the claim, the judge concluded:

[Ojnly through speculation, could I conclude that the claimant’s passing out was the result of her having inhaled a chemical spray and I find that it is more reasonable and logical that her passing out was the result of an idiopathic cause not arising out of her work.

The present case involves trauma brought about by an external force (a desk) as distinguished from internal failure “accidents” occurring during the course of employment which cause preexisting conditions to become suddenly symptomatic, such as those in Southern Bell Telephone and Telegraph Company v. McCook, 355 So.2d 1166 (Fla.1977); Orange County Board of County Commissioners v. Jordan, IRC Order 2-3785 (April 25, 1979); Market Food Distributors, Inc., et al. v. Levenson, 383 So.2d 726 (Fla. 1st DCA, 1980). The general rule is that injuries caused by idiopathic falls do not arise out of employment unless the employment in some way contributes to the risk personal to the claimant or aggravates the injury. Foxworth v. Florida Industrial Commission, 86 So.2d 147, 151 (Fla.1955); Federal Electric Corp. v. Best, 274 So.2d 886 (Fla.1973); Southern Convalescent Home v. Wilson, 285 So.2d 404 (Fla.1973); Honeywell v. Scully, 289 So.2d 393 (Fla.1974). See also 1 Larson, Workmen’s Compensation Law, § 12.10, 3-252 (1978). Common examples of employment conditions increasing a risk to employees include a fall from heights or onto dangerous objects, Foxworth, supra, at 151, or a requirement that the employee use a motor vehicle during his working hours. Pickens v. Sam L. Rudd Leasing U. S. A., IRC Order 2-3741 (March 21, 1979).

If the evidence showed only that Mrs. Legakis’s head injuries were caused by a fall on a desk, those injuries would be non-compensable. See Federal Electric Corporation v. Best, supra, where the evidence revealed that the claimant, standing perfectly still just before his fall, was neither engaged in any physical exertion nor was he subjected to any unusual employment conditions. His fall was caused solely by an idiopathic condition — epilepsy. The facts here, however, are markedly different from those in Best.

While the evidence supports the judge’s finding that Mrs. Legakis’s inhalation of the chemical spray did not cause her to faint, that finding does not necessarily require the conclusion her fall was caused solely by an idiopathic condition. The judge’s order apparently accepted the claimant’s testimony that immediately before her fall she inhaled a chemical spray which caused her to turn her head. The medical testimony was unrefuted that given the employee’s labyrinthitis, an abrupt change in position could cause a loss of balance and a resulting fall. Claimant’s testimony and the medical testimony are in no way inconsistent. Both lead to the inescapable conclusion that but for the employee’s inhalation of the spray, the use of which was required in order to perform her job duties, her head would not have abruptly turned, thereby triggering the sympto-matology consistent with her condition of labyrinthitis: fainting. The employment conditions to which Mrs. Legakis was necessarily exposed substantially contributed to the risk of sudden collapse, conditions which she certainly would not have encountered during her normal non-employment life. Compare Cheney v. F E C News Distribution Company, 382 So.2d 1291 (Fla. 1st DCA, 1980).

The order denying compensation is reversed and the case is remanded for further proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.

      . Larson analogizes injuries resulting from idiopathic-fall-cases to injuries sustained by an employee during an assault motivated by purely personal reasons. In both instances, unless the employment condition increases the risk personal to the claimant, the injuries are not caused by the employment. But if the employment increases the risk by requiring, for example, a night watchman’s presence in dark and remote corners where the chances of an assault for personal reasons are enhanced, a resulting claim for injuries is compensable. 1 Larson, supra, § 12.14 at 3-267.


author: MILLS, Chief Judge.

text:
    Daniel S. McALLISTER, Appellant, v. FLORIDA CAREER SERVICE COMMISSION, Appellee.
    No. PP-210.
    District Court of Appeal of Florida, First District.
    May 9, 1980.
    Rehearing Denied June 12, 1980.

      Joseph R. Moss, and Jack W. Hunter, Jr., Cocoa, for appellant.
    Robert A. Chastain, Tallahassee, for ap-pellee.
   MILLS, Chief Judge.

Daniel S. McAllister appeals from a decision of the Florida Career Service Commission upholding his five-day suspension by the Department of Agriculture and Consumer Services. We reverse.

The reason given for McAllister’s suspension was insubordination, but the evidence does not support that charge. The relevant facts are that McAllister, an inspector, was asked by his supervisor to attend a hearing to be-conducted by the United States Department of Agriculture concerning suspension or revocation of a federal license of another state inspector. (He held dual licensing, as did McAllister.) When McAllis-ter refused the oral request to attend and insisted on being given a written order, the supervisor prepared a handwritten note. McAllister still refused and was suspended.

Insubordination has been defined by this Court in Muldrow v. Bd. of Pub. Instruction of Duval County, 189 So.2d 414 (Fla. 1st DCA 1966), as a disobedience of orders which is “. . . generally synonymous with contumacious, which indicates persistent, willful or overt defiance of authority . . . Inherent in a finding of insubordination, however, is a finding that the orders given were within the authority of the person giving them. While we agree with the position of the Commission that a state employee is under an obligation to follow orders of his supervisor to attend hearings in line of duty, in the instant case we find that the supervisor of the Department of Agriculture and Consumer Services had no authority to require McAllister to attend a federal hearing held by federal authorities concerning a matter between the United States Department of Agriculture and another individual. The position of the Department that McAllis-ter’s attendance at the hearing was “related work as required,” as provided for in his job description, is without merit because the hearing was not related to his state duties and the Department itself was not actually a party to the proceedings.

Reversed and remanded for proceedings consistent with this opinion.

ERVIN and SHIVERS, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    STATE of Florida REAL ESTATE COMMISSION, Appellant, v. Charles E. FELIX, Appellee.
    No. RR-31.
    District Court of Appeal of Florida, First District.
    May 9, 1980.
    Rehearing Denied June 10, 1980.

      Wendell J. Kiser of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Jessee F. Sparks and Robert E. Sheridan, Orlando, for appellee.
   PER CURIAM.

The employer appeals the order of the Judge of Industrial Claims awarding claimant temporary total disability benefits, permanent total disability benefits reduced by 50 percent as a result of a pre-existing condition, medical treatment, attorney fees and costs. Claimant cross-appeals that portion of the order which reduces by 50 percent his permanent total disability benefits.

Claimant is a member of the Florida Bar who practiced as a staff attorney for the Florida Real Estate Commission. He left private practice in 1966 after suffering a heart attack and underwent a coronary bypass operation in 1971. Thereafter, claimant sought less stressful employment, and took a position with the Commission. Beginning in January, 1976, claimant began working on “advance fee cases” and, in connection therewith, was required, during May, 1978, to schedule an estimated 20 depositions in 15 cities within a two-week period. During the second week of these depositions, claimant experienced chest pain and was hospitalized in Kentucky with a diagnosis of myocardial infarction which resulted in claimant’s claim for compensation due to a heart attack arising out of and in the course of his employment.

The Deputy’s order finding compensability is, in part, as follows:

I find that the myocardial infarction suffered by the claimant in May, 1978, was caused by the overall effects of the out-of-state trip as well as the stress of his job. Although, I find there was no specifically identifiable effort which caused the heart attack, the overall stress of the trip over a several day period is sufficient to distinguish this case from the case of Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978).

The foregoing findings are insufficient to meet the requirements of Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), Tintera v. Armour & Co., 362 So.2d 1344 (Fla.1978), and Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978).

Accordingly, the order below is REVERSED with directions that the claim be dismissed.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: HENDRY, Judge.

text:
    Richard MARTINO, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 79-1400.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 10, 1980.

      Gus Efthimiou, Jr., Miami, for appellant.
    Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   HENDRY, Judge.

In May of 1975 a final judgment based upon a default was entered in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County in favor of Richard Martino, appellant, against Southern American Fire Insurance Company; the said insurer had become insolvent, and in February of 1976 the Circuit Court of the Second Judicial Circuit in and for Leon County entered an order of insolvency and directed that the Florida Department of Insurance act as the receiver to liquidate the company’s business. Thereafter the ap-pellee served its notice of appearance in our local circuit court accompanied by a motion to vacate the default final judgment in behalf of itself and the insolvent insurer. The motion to vacate the default final judgment and the later motion for rehearing were denied, and appellee did not file an appeal. The appellee had consistently failed and refused to pay appellant.

In November of 1977 the appellant filed a complaint for damages against the appellee, alleging that the Florida Department of Insurance had personally appeared in the previous suit and under Sections 631.50, et seq., Florida Statutes, (1975), it was obligated to pay the judgment. Appellee then filed a motion to dismiss stating that it had been involved in the earlier action, where it sought to have the final judgment against the insolvent insurer set aside and was denied the relief; that Martino should have sought execution in the previous lawsuit against the Florida Insurance Guaranty Association, rather than filing a separate lawsuit; and that appellee was not responsible for judgments rendered against an insolvent insurer based upon defaults. The trial court, granted the appellee’s motion with leave to amend; an amended complaint and a second amended complaint were subsequently filed, appellant answered the latter. Ultimately, the trial court granted the ap-pellee’s motion for a directed verdict and entered a “general order” to that effect. We find that the order was erroneous, and reverse the holding of the trial court.

The final judgment against the insolvent insurer, which was still outstanding during the pendency of this separate suit in the lower tribunal, is binding upon the appellee herein. We remand the cause to the trial court. The Supreme Court of Florida discussed the reason for the creation of the association in O’Malley v. Florida Insurance Guaranty Association, 257 So.2d 9 (Fla.1971) at 11 and 12:

“The Guaranty Association ... is a public or quasi-public corporation. It is a legislatively declared ‘mechanism’ to aid and benefit numerous citizens many of whom comply with state requirements in Obtaining casualty and other insurance coverage for themselves and have suffered loss of the insurance protection they obtained because of the insolvency of their insurors.”
******
“It is to be remembered that the dominant purpose of Ch. 70-20 is to avoid delay and to settle as soon as possible claims of insolvent insurers which are ripe for payment.”

Clearly, the claim in the instant case is more than “ripe for payment.” Notwithstanding the fact that the Florida Insurance Guaranty Association, Inc. was not a named party in the prior suit, it is bound by the former, judgment as it participated in that proceeding after Southern American Fire Insurance Company had been declared an “insolvent insurer.” See Kline v. Heyman, 309 So.2d 242 (Fla. 2d DCA 1975), cert. denied, 317 So.2d 767 (Fla.1975), cert. denied, 423 U.S. 1034, 96 S.Ct. 567, 46 L.Ed.2d 408 (1975). Furthermore a judgment by default is as conclusive on rights of parties as a judgment on the merits. Perez v. Rodriguez, 349 So.2d 826 (Fla. 3d DCA 1977); Sottile v. Gaines Construction Company, 281 So.2d 558 (Fla. 3d DCA 1973); Baum v. Pines Realty, Inc., 164 So.2d 517 (Fla. 2d DCA 1964); and generally 47 Am.Jur.2d, Judgments §§ 1152 et seq.

The relevant provision of Section 631.57 states unequivocally that:

“(1) The association shall:
“(a) Be obligated to the extent of the covered claims existing:
“1. Prior to the adjudication of insolvency and arising within thirty days after the determination of insolvency;”
******
“(b) [The association shall] [b]e deemed the insurer to the extent of its obligation on the covered claims, and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.”

Accordingly, we reverse and remand the cause to the trial court. Appellee, the Florida Insurance Guaranty Association, Inc., as the party having the same rights, duties and obligations as had the now-insolvent insurer, is bound by the judgment against the insolvent insurer due to the obvious “mutual” or “successive” relationship formally created by our Legislature. See Hann v. Carson, 462 F.Supp. 854 (M.D.Fla. 1978); Osburn v. Stickel, 187 So.2d 89 (Fla. 3d DCA 1966); Allstate Insurance Company v. Warren, 125 So.2d 886 (Fla. 3d DCA 1961).

Reversed and remanded.

      . The Florida Insurance Guaranty Association is a non-profit corporation created by statute —§ 631.55, Fla.Stat. (1975). Pursuant to § 631.57, Fla.Stat., it is deemed to be the insurer to the extent of the insolvent insurance company’s obligation on the covered claim and to such extent that the guarantee association has all the rights, duties and obligations of the insolvent insurer.

      . By filing the notice of appearance in the prior action without process of service upon it, ap-pellee waived the necessity for service of process. Hotel & Restaurant Employees & Bartenders International Union v. Lake Buena Vista Communities, Inc., 349 So.2d 1217 (Fla. 4th DCA 1977) and Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976).


author: HERSEY, Judge.

text:
    John NOLAN, Jr., and Allstate Insurance Company, a Foreign Corporation authorized to do business in the State of Florida, Appellants, v. Brenda ROBERTS, a minor, by and through James R. Roberts, Appellee.
    No. 78-1233.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Rehearing Denied June 16, 1980.
    Kirk Sullivan of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.
    Larry Klein and Stuart E. Koeha, West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant, John Nolan, Jr., and his liability insurance carrier take this appeal from a Final Judgment rendered pursuant to a jury verdict awarding damages to the minor plaintiff, Brenda, and her father, James Roberts.

Approximately three years before the incident which resulted in this litigation Nolan planted several century plants in the front yard of his home. The record discloses that a century plant is similar to a Spanish bayonet with needle-like points at the end of each leaf. Nolan testified that on at least one occasion he had asked several neighborhood children not to play in his yard, but he had never warned them of the dangers of playing near the century plant. He had no specific recollection of ever having seen the minor plaintiff playing in his yard.

On the day of the accident, six-year old Brenda was walking her dog when it ran under a century plant on the Nolan property. Brenda knelt down and, upon arising, one of the needle-like points of the century plant pierced her eye causing partial loss of vision. The testimony discloses that she had been warned by her parents about the dangers of century plants, apparently because of the proximity between the Roberts’ and Nolans’ properties.

Brenda’s mother testified as follows:

Q I understand that once or twice you saw them play on a bench near the driveway, right on the other side of the car and you warned Brenda to stay away from those plants because they had sharp points on them.
A The ones near the edge of the road. I didn’t see the one that was back near the fence.
Q You warned both kids about those bushes that they might be harmful and had sharp points?
A Yes, I knew they had sharp points, the ones near the front of the yard.
Q You told Brenda, and I guess both your children, to please not play close to the bushes?
A Yes.

Brenda’s father testified to the same effect:

Q Do you recall on one or more occasion telling them to be careful of these plants that have been called Century plants or Spanish Bayonets or whatever they are?
A The plant on the west of the driveway where the bench was, they were doing somersaults and the forward momentum, they looked like they were coming close to it and I told them to be careful of that plant.
Q Because it had spines on it, right?
A Yes, sir, I told them to be careful of that plant, yes, sir.

It was also established that Nolan was aware of the dangerous character of the needle-like points.

The jury returned a special verdict finding that Nolan was sixty percent negligent, that Brenda was forty percent negligent and that Brenda’s father was not negligent and awarded damages to Brenda and her father.

This appeal questions the propriety of the denial of appellants’ motions for directed verdict made at the close of appellee’s case and at the close of all of the evidence.

For determination by this Court are the following issues: (1) the nature and extent of the duty owed Brenda by Nolan, and (2) whether there was a breach of that duty which proximately caused Brenda’s injury.

In the leading Florida case of Wood v. Camp, 284 So.2d 691 (Fla.1973), the Supreme Court divided plaintiffs in cases of this nature into three categories: invitees, uninvited licensees and trespassers. Once an individual has been placed in the appropriate category, the duty of the property owner or possessor to that individual is established by definition.

Brenda was either a trespasser or an uninvited licensee. We note that she is referred to in Appellants’ brief as belonging in the latter category. While some distinctions between these two categories may still exist (see Wood v. Camp, supra), the case at bar does not require that such a distinction be made since the duty owed, and consequently the result, would be the same. The owner or possessor of land owes to either a duty only to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.

Brenda testified as follows on cross examination:

Q Brenda, before you hurt your eye do you remember your daddy and mommy both telling you to stay away from those bushes that they had sharp points?
A Yes.
Q You knew they had sharp points on them, didn’t you?
A Yes.

Since Brenda knew of the danger, Nolan had no duty to warn her. Restatement of Torts, 2nd, § 342. Accordingly, there could be no breach of that duty and no negligence on the part of Nolan. The motion for directed verdict should therefore have been granted. We reverse and remand this cause to the trial court for the entry of a final judgment in favor of the defendants.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


text:
    Jesse LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-150.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
   BOARDMAN, Judge.

Jesse Livingston appeals the summary denial of his motion to vacate his judgment and sentence for first-degree murder. We reverse for an evidentiary hearing.

Appellant pled guilty to first-degree murder in October 1978, pursuant to a plea bargain and was sentenced to life in prison. He now seeks vacation of his judgment and sentence, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, on two grounds: (1) that he was found to be insane in 1961, and there has been no showing that his sanity has returned, and (2) that his court-appointed counsel was ineffective in that counsel failed to request a sanity hearing after having been informed that appellant had been declared insane and had been committed to Florida State Hospital at Chattahoochee, where he was a patient during 1961 and 1962. Appellant further alleged that his counsel had induced him to plead guilty by telling him that if he did not plead guilty, he would be convicted at trial and séntence to death.

The transcript of the plea hearing, upon which the trial court apparently relied in denying appellant’s motion, indicates that appellant stated that he had not been threatened or promised anything other than the plea agreement in order to get him to plead guilty, and he expressed satisfaction with the services of his attorney. Thus the record refutes appellant’s allegations of ineffective assistance of counsel.

However, nothing in the plea hearing transcript, which is the only portion of the record before us, refutes appellant’s insanity allegation. Appellant’s mental condition was not mentioned at any point in the plea hearing. This allegation, if true, would entitle appellant to relief. One who has been adjudged insane is presumed to continue so until it is shown that his sanity has returned, Horace v. Culver, 111 So.2d 670 (Fla.1959); Hixon v. State, 165 So.2d 436 (Fla. 2d DCA 1964), and an accused cannot be tried or sentenced while insane. Horace v. Culver, supra; Alexander v. State, 380 So.2d 1188 (Fla. 5th DCA 1980).

Accordingly, the trial court’s order summarily denying appellant’s motion to vacate is REVERSED and the cause REMANDED with directions to hold an evidentiary hearing on appellant’s insanity allegation.

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


author: PER CURIAM. LAMAR WARREN, Associate Judge,

text:
    George TOLLEY a/k/a George Starling Tolley, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-1951.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Richard L. Jorandby, Public Defender, Jack A. Goldberger and Allen J. DeWeese, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mary E. Marsden and Russell S. Bohn, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MOORE and HERSEY, JJ., concur.

LAMAR WARREN, Associate Judge, dissents with opinion.

LAMAR WARREN, Associate Judge,

dis-sénting:

I respectfully dissent. The director of housing at a state university received information from a student confidential informer concerning drug trafficking by appellant in the dormitory room in which he was residing, and the police were notified. The police made a determination after considerable delay that it was necessary to go to the dormitory without obtaining a search warrant. The officer who was a witness at the hearing on a motion to suppress testified that after they went to the dormitory, accompanied by the director, they smelled a strong odor of marijuana in the corridor. The director, who was the other witness at the hearing, and who was leading the way because he had a key to appellant’s room, testified at the hearing that he deferred to the officers and that they were the police handling a drug situation and further that when he got to the hallway door he noticed the smell of marijuana. He put his key in the lock and finding the door was already unlocked he opened the door and proceeded into the room, the officers following. Upon these facts it is believed that the cases of Taylor v. United States, 1932, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 govern. It follows therefore that the order denying appellant’s motions to suppress should be reversed. Parsons v. State, 334 So.2d 308 (Fla. 1st DCA 1976); Hornblower v. State, 351 So.2d 716 (Fla.1977); Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971); Smyth v. Lubbers, 398 F.Supp. 777, (D.C.W.D.Miss.1975); Morale v. Grigel, 422 F.Supp. 988 (D.C.N.H.1976), and State v. Kappes, 26 Ariz.App. 567, 550 P.2d 121 (1976).


author: LARRY G. SMITH, Judge.

text:
    H. Craig HINES, Appellant, v. REICHHOLD CHEMICALS, INCORPORATED, a Foreign Corporation, Appellee.
    No. OO-375.
    District Court of Appeal of Florida, First District.
    May 20, 1980.

      Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Douglas D. Chunn and Haywood M. Ball, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Apellant Hines seeks reversal of an order dismissing, with prejudice, his complaint against appellee-Reichhold Chemicals, Inc., alleging injuries caused through Reichhold’s negligent or intentional discharge of poisonous chemicals into the atmosphere. The issues are whether the complaint was sufficient to allege a cause of action for negligent or intentional injury upon which to base Hines’ claims for compensatory and punitive damages for personal injuries, and whether the complaint was subject to dismissal, as asserted by appellee, for failure to allege any specific duty owed by Reich-hold to Hines. We find the complaint was sufficient to withstand a motion to dismiss, and reverse.

The third amended complaint alleges that appellee is engaged in the business of manufacturing and packaging certain chemical substances and that for at least the past four years, it has been negligently discharging various toxic chemicals into the atmosphere, with knowledge of their toxicity, and with knowledge that these substances were dangerous to persons in the vicinity, as it had been made aware by numerous complaints. It is further alleged that Hines, from April 14, 1977 through December, 1977, was regularly employed as program director for WSNY Radio, which operates from a location immediately adjacent to Reichhold’s manufacturing site, and which has been subjected to the toxic discharges for the past four years. Hines alleges that as a proximate result of Reich-hold’s negligence, he has been subjected to the toxic chemicals while he was necessarily present at the radio station, as a consequence of which he suffered various painful physical ailments, incurred medical expenses, and lost wages through his inability to work. It is alleged that the injuries are either permanent or continuing in nature, and that Hines will suffer from said injuries in the future. Finally, Hines’ complaint alleges that Reichhold was aware of the toxicity of the chemicals it was discharging into the atmosphere, was aware of the damages that could result therefrom, and notwithstanding such knowledge, did willfully, and intentionally, without regard to Hines’ rights, continue to discharge the chemicals into the atmosphere, knowing of their dangerous nature, and knowing that it was causing physical injury and damage to plaintiff and other persons in the vicinity.

We conclude that the complaint sufficiently alleges a cause of action for negligent or intentional injury to appellant. Ap-pellee based its motion to dismiss primarily upon its contention that the complaint fails to allege ultimate facts showing the existence of a duty owed by appellee to appellant. We do not agree with appellee’s contention that the complaint alleges only a duty to the general public. On the contrary, we think the allegations are sufficient to show the existence of a duty owed by appellee-Reichhold to the appellant. Ap-pellee admits that pollution of the atmosphere through negligent operations may, under certain circumstances, be grounds for the recovery of damages by persons injured by the presence of the pollutants. Appellee also acknowledges that an owner or occupant who negligently permits harmful gases or fumes to escape is liable in damages for injuries to persons proximately caused by such gases or fumes, citing 54 ALR 2d 764, 766. Appellee further argues, however, that the mere circumstance of the giving off of fumes and gases is not negligence. On this point appellee cites Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728 (1948), and Texas Co. v. Brown, 82 S.W.2d 1101 (Tex.Civ.App.1935).

From Texas Co. v. Brown, supra, appellee extracts the statement that liability “must be predicated upon failure of the party charged to discharge some duty imposed upon him.” (Id. at 1105) Our reading of the opinion, however, discloses that the above statement was only a part of the response made by the court to the contention of the Texas Company that it could not have foreseen any danger to the injured plaintiff, and that no duty rested upon it to guard against a danger unknown to it. The court further stated (Id. 1105):

And liability for injuries inflicted is dependent upon whether the injuries suffered were of such character as the defendant could or should have foreseen them in the exercise of ordinary care under the circumstances of the particular case . . . [citations omitted]. But it is not essential that the party charged should have anticipated the particular injury inflicted nor the particular manner in which it occurred. It is within the rule of liability if he should have reasonably foreseen that some similar injury would probably result . . . [citations omitted]. Under these circumstances we do not think it was essential that appellant should have actually known of the existence of this particular cellar at the particular location. The danger from the gas escaping from appellant’s well settling on a damp day in any low place in the vicinity thereof, and of becoming ignited and injuring someone, was the criterion of appellant’s conduct in releasing it into the open air. .

Thus, in Texas Co., recovery was allowed for the death of the occupant of a home who was fatally burned in an explosion of gas which had leaked from the defendant’s nearby gas well into the basement of the decedent’s home. It appears to us that both the facts and the exposition of the law in that case support the cause of appellant here, rather than appellee.

A jury verdict for one of the plaintiffs in Kelley v. National Lead Co., supra, was reversed, upon a determination by the court that the plaintiff had failed to prove a cause of action for negligence on the part of the defendant company, based upon the action of the company in permitting gases, fumes and chemical particles to be emitted from its chemical plant and discharged over the neighborhood where the plaintiff resided. The rationale upon which the court reached its decision is somewhat complex. The court held that the principle of Fletcher v. Rylands, L.R. 1 Exch. 265, L.R. 3 H.L. 330, was not recognized as the law of Missouri. Fletcher v. Rylands holds that one, who for his own purposes collects and keeps anything upon his land which is likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie liable for all the damage which is the natural consequence of its escape. However, the court determined, while the complaint was drawn on the Fletcher v. Rylands principle, the plaintiffs abandoned their reliance upon the mere fact of the escape of the fumes and gases, and attempted to prove their case based upon the theory that the defendant had permitted the harmful fumes and gases to escape, when, in the exercise of ordinary care, it could have remedied or prevented their escape, but failed to do so. On appeal, the court observed that the plaintiffs “practically concede” that they made no case of any sort by their evidence, unless under the doctrine of Fletcher v. Rylands. Much of the evidence, and the court’s discussion of the case, was concerned with the existence of a device known as the “Cottrell Precipitator.” Since the device was not available at the time of plaintiffs’ injury, defendant was not guilty of any breach of duty to plaintiffs by failing to have one installed. The court finally determined that the plaintiffs erroneously proceeded upon the theory of negligence, and that their remedy was for recovery upon the theory of nuisance. In this connection, the court stated (Id., 210 S.W.2d at 735):

. It is well recognized that for one to permit fumes and gases to escape from his premises and be deposited on the premises of another to his injury and damage may constitute an actionable wrong in the maintenance of a nuisance.

The jury verdict for plaintiffs was therefore reversed and the cause remanded for a new trial on the theory of nuisance.

Although Kelley v. National Lead Co. is helpful to appellee because of the similarity of its facts, and the pronouncements regarding the requirements for proof of negligence under the circumstances, we entertain serious doubt that its holding is to be accorded a great deal of weight under present day circumstances. In this connection, we note particularly that the events of that case took place during a period when the United States was at war, and the company’s production of the particular chemicals involved was under direct orders from the government, as a wartime measure. We also observe that the decision in that case did not turn upon the pleadings, but rather upon the court’s determinations regarding the legal effect of the evidence after trial, and we will not apply that decision so as to hold the complaint under consideration insufficient for failure to state a cause of action. We further note, however, dicta in Page v. Niagara Chemical Division etc., 68 So.2d 382 (Fla.1953), indicating that Hines may have a cause of action in Florida on the theory of nuisance, as did the court in Kelley, under the circumstances alleged. See also 58 Am.Jur.2d, Nuisances, § 104. Since Hines’ complaint sounds in negligence or intentional tort, rather than nuisance, we find it unnecessary to rule upon this question.

The case of Union Carbide & Carbon Corp. v. Peters, 206 F.2d 366 (4th Cir. 1953), also cited by appellee, is neither factually nor legally related to the issues presented here. We also find that appellee has misapplied Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975). The discussion in that case concerning the element of “duty” in negligence cases as “something more than the duty which is owed to the public generally,” is a principle of law formerly applicable to the tort liability of municipalities. Of course, the principles of liability for governmental agencies has most recently been restated in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

Finally, appellee’s contention that the complaint fails to allege that appellee “knew its emissions were dangerous and causing harm to the plaintiff,” is without merit. The complaint sufficiently alleges that appellee knew its emissions were dangerous to persons in the vicinity, was aware of the damages that could result from its discharges, and knew that it was causing physical injury and damage to plaintiff and other persons in the vicinity.

Although the complaint does not mention it, Section 386.041(1)(a), Florida Statutes (1977), makes it a misdemeanor to permit or cause the emission of gases and noisome odors which are harmful to human or animal life. The violation of a penal or criminal statute is actionable negligence, or, as frequently stated, is negligence per se. 23 Fla.Jur., Negligence, § 69. Under the present state of the pleadings we think plaintiff would be entitled to present evidence of violation of the statute, and under proper jury instructions the jury could consider such evidence on the issue of negligence. Upon remand, appellant should be given an opportunity to amend his complaint by reference to the statüte, which, incidentally, has been cited to the court by appellant in support of this appeal.

For the foregoing reasons, the final order of dismissal is reversed, and this cause is remanded for further proceedings.

McCORD and SHIVERS, JJ., concur.


text:
    Larry Allen HARTS, Appellant, v. Joyce K. HARTS, Appellee.
    No. 79-837.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Rehearing Denied June 10, 1980.
    Gilbride & Heller and Lewis N. Brown, Miami, for appellant.
    Richard H. W. Maloy & Associates, Coral Gables, Kevin A. Anderson, Hialeah, for appellee.
    Before HUBBART, NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

The final judgment of marriage dissolution under review is affirmed upon a holding that: (a) there was substantial, competent evidence in this record upon which the trial court could properly award the wife, as it did, the subject 1978 Fiat automobile and require the husband to make the payments thereon as a form of ■lump sum alimony; and (b) there was substantial, competent evidence in this record upon which the trial court could award the wife, as it did, $10,000, impose a lien in that amount against the marital home to guarantee payment of said sum, and authorize a payment schedule thereon, as a form of lump sum alimony. It is not the function of this court to substitute its judgment for that of the trial court, as urged by the husband, through re-evaluation of the testimony and evidence from the record on appeal before us and to interfere with the trial court’s admittedly broad discretion in matters of this nature. We find no abuse of discretion here, and, accordingly, are compelled to affirm. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979) adopting 352 So.2d 867 (Fla.3d DCA 1977) (Hubbart, J., dissenting); Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Yandell v. Yandell, 39 So.2d 554, 556 (Fla.1949).

Affirmed.