author: MILLS, Judge.

text:
    GENERAL FOODS CORPORATION (MAXWELL HOUSE DIVISION), Appellant, v. Cecil T. BROWN, Appellee.
    No. AK-300.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Rehearing Denied Oct. 1, 1982.
    Peter J. Kellogg and Jonathan S. Grout, Jacksonville, for appellant.
    Steven E. Meisel and David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellee.
   MILLS, Judge.

General Foods, defendant below, appeals a judgment entered on a jury verdict. We have expedited consideration of this appeal due to the scheduled trial of related claims. We affirm.

General Foods challenges the failure to excuse one juror for cause. The trial court has broad discretion in these matters and manifest error must be shown for reversal. Christopher v. State, 407 So.2d 198 (Fla.1981); Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981). Our review of the voir dire does not reveal manifest error.

General Foods’ next four issues concern the sufficiency of the evidence. We feel that the record sufficiently supports the jury’s verdict. Issues of comparative negligence and damages for pain and suffering are peculiarly within the province of the jury.

General Foods’ final point concerns the failure of the trial court to give all of one of the requested instructions. The deleted portion adds nothing to the instruction and would only have served to confuse the jury.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    George JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-795.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

An information was filed against appellant, charging him with indecent assault upon a female child. After a jury trial appellant was found guilty and sentenced to nine years in prison, with credit for time already served. The trial court retained jurisdiction over part of appellant’s sentence pursuant to section 947.16, Florida Statutes (1979), and ordered him to pay (a) court costs of $12 and (b) the public defender an attorney’s fee of $1,000 plus costs pursuant to section 27.56, Florida Statutes (1979). We affirm the judgment and all of the sentence but for that portion which assessed costs of any nature. As to such assessment of costs we remand for vacation thereof for which appellant need not be present.

Appellant argues that the trial court violated his sixth amendment right to confront witnesses and allowed inadmissible hearsay into evidence. The court, he says, erroneously permitted the mother of the child whom he was alleged to have assaulted to testify that her child told her, “That man [referring to appellant] hurt me,” shortly after the incident, and, “That man [again referring to appellant] in Killer’s car hurt me,” approximately an hour or so later.

The record establishes that appellant and James Lee (Killer) Montgomery paid the three-year-old victim’s mother a visit on New Year’s Day. Immediately after their arrival, appellant picked up the child, kissed her, and took her outside to Montgomery’s automobile. The mother and Montgomery remained in the living room for a few minutes and later joined the others in the automobile where they listened to tapes. The two men then left.

On entering the home with her mother, the child made the first of the two remarks in question. The mother did not take the child’s remark seriously and went to the home of her sister-in-law to visit for an hour or longer. On her return home, however, her child made the second remark; by this time she was bloody. The gynecologist who examined the child at the hospital emergency room testified at trial that he found a small laceration at the entrance of her vagina. The child, still three years of age, did not testify at the trial because she simply would not speak.

The trial judge properly admitted into evidence the remarks the child made shortly after the attack upon her. They clearly were excited utterances within the meaning of section 90.803(2), Florida Statutes (1979), which does not require the exclusion as hearsay of an:

(2) EXCITED UTTERANCE. — A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Federal Rule of Evidence 803(2), excepting the following from the hearsay rule, is almost identical to the Florida rule:

(2) Excited utterance. — A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The same arguments appellant makes in this case have been rejected in a number of federal cases which have applied the foregoing federal rule. United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981) (nine-year-old girl’s statements to female police officer within one hour and fifteen minutes of attempted rape); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) (three-year-old boy’s statement to his mother after the mother picked him up from the male defendant babysitter’s home); Harmon v. Anderson, 495 F.Supp. 341 (E.D.Mich.1980) (adult’s statements made immediately after rape to occupants of home to where victim fled). Judge Gilmore noted in Harmon :

The reliability of the excited utterance, which is a long-established exception to the hearsay rule, rests upon the circumstances under which the declaration is made. Generally, three essential elements are necessary. First, there must be an event startling enough to cause nervous excitement. Second, the statement must have been made before there had been time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of excitement caused by the event. McCormick points out that the rationale for the exception lies in the special reliability which is regarded as furnished by the excitement superseding the declar-ant’s powers of reflection and fabrication. McCormick on Evidence (2nd Edition), West Publishing Co. (1972) ¶ 297, p. 704.

Id. at 344.

Appellant next argues that the trial court erred in failing to grant a mistrial during the testimony of the victim’s eight-year-old cousin. To the surprise of counsel, the cousin said that when appellant picked up the victim in the home he “stuck his finger up in her”; a fact which she obviously never observed as the alleged incident took place in Montgomery’s automobile. Although the statement may have caused momentary havoc during the trial, we find no error in the trial judge’s denial of appellant’s motion for mistrial. First, the trial judge, immediately after appellant’s objection and before any motion was made, instructed the jury to disregard the cousin’s testimony as to what appellant had done. Second, after denial of the motion, counsel for appellant and the state procured testimony from the witness that she only saw appellant kiss the victim. So the jury, ultimately, was not misled. Third, as stated in Salvatore v. State, 366 So.2d 745, 750 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979):

Florida case law clearly states that a motion for a declaration of a mistrial is addressed to the sound discretion of the trial judge. Strawn v. State ex rel. Anderberg, 382 So.2d 601 (Fla.1976); Paramore v. State, 229 So.2d 855 (Fla.1969); modified on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Tate v. Gray, 292 So.2d 618 (Fla.2d DCA 1974); Warren v. State, 221 So.2d 423 (Fla. 2d DCA 1969); Prokos v. State, 209 So.2d 484 (Fla.3d DCA 1968); Baisden v. State, 203 So.2d 194 (Fla.4th DCA 1967); Garcia v. State, 142 So.2d 318 (Fla.2d DCA 1962). In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity. State ex rel. Wilson v. Lewis, 55 So.2d 118 (Fla.1951); State ex rel. Alcala v. Grayson, 156 Fla. 435, 23 So.2d 484 (1945); King v. State, 258 So.2d 21 (Fla.2d DCA 1972); Warren, supra; Kelly v. State, 202 So.2d 901 (Fla.2d DCA 1967).

Next, appellant contends the trial court erred in denying his motion for acquittal. We do not agree with this contention:

The proper test on appeal of a denial of a motion for judgment of acquittal is whether the jury as the trier of fact might reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt. Rodriquez v. State, 379 So.2d 657 (Fla. 3d DCA 1980); Zuberi v. State, 343 So.2d 664 (Fla. 3d DCA 1977). All facts introduced into evidence are admitted by the defendant, and the court must draw every conclusion favorable to the state. Codie v. State, 313 So.2d 754 (Fla.1975); Rodriquez v. State, supra; Matrascia v. State, 349 So.2d 735 (Fla. 3d DCA 1977), cert. denied 360 So.2d 1249 (Fla.1978). The motion should not be granted unless there is no legally sufficient evidence on which to base a verdict of guilt. Downer v. State, 375 So.2d 840 (Fla.1979); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976).

Knight v. State, 392 So.2d 337, 338-39 (Fla. 3d DCA), petition for review denied, 399 So.2d 1143 (Fla.1981). The evidence presented indicated the victim was alone with the appellant in Montgomery’s automobile for a period of minutes, she complained immediately thereafter that appellant had hurt her and, about one hour later, when the victim identified appellant again as having hurt her, she was bleeding. While it is possible that the victim was injured by someone or something other than the appellant and his actions, there clearly was legally sufficient evidence upon which to base a verdict of guilty. Accordingly, the trial court did not err in denying appellant’s motion.

Additionally, appellant claims the assessment of court costs of $12 and the $1,000 attorney’s fee payable to the public defender were improper. The state correctly concedes that because appellant was adjudged insolvent he should not have been assessed the $12 court costs. State v. Byrd, 378 So.2d 1231 (Fla.1979). With respect to the remainder of the sentence which recites: “DEFENDANT ALSO TO PAY $1,000 PUBLIC DEFENDER FEE AND ALL COST [sic]” we observe that as to the attorney’s fee assessed, appellant only stated in his main brief that the constitutionality of section 27.56, Florida Statutes (1979), was before this court in Hoffman v. State, 413 So.2d 150 (Fla. 4th DCA 1982); and that our decision therein would be disposi-tive. He presented us with no argument in his briefs to support holding the statute unconstitutional, and we subsequently did not rule upon the constitutionality of the statute in Hoffman. Further, appellant made no argument that the trial court failed to follow the statutory procedure. Accordingly, there is nothing before us upon which to base a reversal of the trial court’s assessment of the attorney’s fee. Similarly, there has been no argument, constitutional or otherwise, with respect to the phrase, “and all cost [sic].” Nevertheless, although the sentence referred, by the subject phrase, to those costs contemplated by section 27.56, Florida Statutes (1979), there was no amount specifically assessed. Accordingly, the phrase is legally ineffective to assess anything, regardless of the absence of argument. Section 27.56 contemplates an order which recites a specific amount upon which a judgment can be recorded.

Appellant makes one more argument. It is similar, however, to one unsuccessfully made in Borden v. State, 402 So.2d 1176 (Fla.1981), and we find that ease dispositive adversely to appellant.

DOWNEY and HURLEY, JJ., concur.

      . Judge Gilmore also made the following observation:
      Although many trial and appellate courts speak of the “res gestae” exception to the hearsay rule, there is no such exception. As Wigmore points out:
      “The phrase, res gestae, is, in the present state of the law, not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever applied exists as a part of some other well-established principle, and can be explained in terms of that principle.” 6 Wig-more Evidence ¶ 1767.
      495 F.Supp. at 343.

      . Section 27.56(7) provides:
      The court having jurisdiction of the defendant-recipient may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender or appointed private legal counsel, and costs, at which time the defendant-recipient, after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.

      . Section 27.56(l)(a) provides in part:
      Such costs may include the cost of depositions, investigative costs, witness fees, the cost of psychiatric examinations, or other reasonable costs specially incurred by the county for the defense of the defendant in criminal prosecutions within the county. Costs shall not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.
      Such costs are to be finally determined.

      . We note that our sister court, in Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982), has held that an adjudication of indigency is no prohibition to a subsequent judgment for costs under this section.


author: PER CURIAM.

text:
    Harry WRIGHT, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 81-210.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Mark R. Boyd of Walsh, Theissen & Boyd, P.A., Fort Lauderdale, for appellant.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Affirmed. See Eagle Star Insurance Co. v. Parker, 365 So.2d 780 (Fla. 4th DCA 1978); H & S Equities, Inc. v. Hartford Accident & Indemnity Insurance Co., 334 So.2d 573 (Fla.1976); Aetna Casualty & Surety Co. v. Enright, 258 So.2d 472 (Fla. 3d DCA 1972); and Wilson v. Insurance Company of North America, 415 So.2d 754 (Fla. 3d DCA 1982).

LETTS, C.J., and GLICKSTEIN and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    Maurice GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 81-1880.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.

      Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

We reverse the verdict and judgment on order to show cause in this criminal contempt proceeding. There is a lack of substantial competent evidence to support the finding, necessarily implicit in the verdict and judgment, that appellant was clearly and explicitly directed by the trial court to personally appear at a certain time and place. Lawrence v. Lawrence, 384 So.2d 279 (Fla. 4th DCA 1980). Further, it was not proved beyond a reasonable doubt (Hamilton v. State, 363 So.2d 580 (Fla. 3d DCA 1978)) that appellant failed to provide an explanation for his absence or that he was readily available and able to attend or to contact the court with an explanation. Accordingly we reverse the judgment of criminal contempt and remand for the entry of an acquittal.

REVERSED and REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    JUNO BY THE SEA CONDOMINIUM APARTMENTS, INC., Appellant, v. JUNO BY THE SEA NORTH CONDOMINIUM ASSOCIATION (THE TOWER), INC., a Florida non profit corporation, etc., et al., Appellees.
    No. 82-238.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Sales & Weissman, P. A., and Edna L. Caruso, West Palm Beach, for appellant.
    No appearance by appellee.
   PER CURIAM.

This is an interlocutory appeal from an order of January 7, 1982, entered in supplementary proceedings following final judgment. The court received the report of a special master and the defendant/appellant filed exceptions thereto. After a hearing, the court denied the exceptions but, in the body of its order, appeared to find liability on the part of individual stockholders who were not as yet joined as parties in the supplementary proceedings. To the extent that the court’s order of January 7, 1982, may be construed as a finding of liability against the unjoined stockholders, it is reversed and set aside. The rights of third parties may not be adjudicated in supplementary proceedings unless said parties have been fully impleaded and given an opportunity to defend. Art Advertising Company v. Associated Press, 340 So.2d 1291 (Fla. 2d DCA 1977).

There is no attack made upon the trial court’s denial of the exceptions and that denial is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

BERANEK and GLICKSTEIN, JJ., concur.

HURLEY, J., dissents in part with opinion.

HURLEY, Judge,

dissenting in part.

I read the order on appeal as merely finding that corporate assets can be traced into the hands of individual stockholders. Since the order does not purport to levy on these or any other assets held by individuals not joined as parties, cf. Art Advertising Co., Inc. v. Associated Press, 340 So.2d 1291 (Fla. 2d DCA 1977), I would affirm.


text:
    FLUSHING NATIONAL BANK, Appellant, v. F. Ronald MASTRIANA, P.A., Appellee.
    No. 82-411.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Peter M. Weinstein of Weinstein & Zimmerman, P. A., Fort Lauderdale, for appellant.
    Michael Eric Christiansen of Michael Eric Christiansen Professional Association, Fort Lauderdale, for appellee.
   PER CURIAM.

We conclude that the trial court erred in failing to grant appellant’s motion to dismiss and in requiring appellant to post a bond as a condition for undertaking this appeal. See Michigan National Bank-Michiana v. Baumgart, 408 So.2d 599 (Fla.2d DCA 1981) and Palm Beach Heights Development and Sales Corp. v. Decillis, 385 So.2d 1170 (Fla.3d DCA 1980).

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

ANSTEAD, GLICKSTEIN, and HURLEY, JJ., concur.


text:
    Kathleen Ross JOHNSON, Appellant, v. Michelle Johnson HEADLEY, etc., Appellee. Reginald Hall JOHNSON, III, and Kathleen Ross Johnson, Appellants, v. Michelle Johnson HEADLEY, etc., Appellee.
    Nos. 82-636, 82-712.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    Michael R. N. McDonnell, Naples, for appellant — Kathleen Ross Johnson.
    Robert Augustus Harper, Jr., Tallahassee, for appellant — Reginald Hall Johnson.
    Sam D. Phillips, Jr., West Palm Beach, for appellee — Michelle Johnson Headley.
   PER CURIAM.

The summary final judgment (order granting summary judgment for partition) appealed from must be reversed on several grounds. No attempt was made (at least none is evident in the record) to factually challenge affirmative defenses raised by appellants/defendants’ pleadings nor to show that they were somehow legally insufficient. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla.2d DCA 1979). Where any doubt exists as to whether or not there is a genuine issue of material fact, the movant for summary judgment may not prevail. Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla.2d DCA 1979).

In addition, appellants, through new counsel, moved to amend the answer and affirmative defenses in advance of the hearing on the motion for summary judgment. The trial court, by entering the summary final judgment without ruling expressly on the motion to amend, in essence and in effect denied the motion. “It is clearly an abuse of discretion to refuse leave to amend except under very limited circumstances.” Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981). It was an abuse of discretion here.

Accordingly, we reverse and remand with instructions that appellants be granted leave to amend the responsive pleading and for further appropriate proceedings.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: DELL, Judge.

text:
    Dean L. BUNTROCK, Petitioner, v. Elizabeth A. BUNTROCK, Respondent.
    No. 82-1209.
    District Court of Appeal of Florida, Fourth District.
    Sept. 15, 1982.
    A. Matthew Miller and James Fox Miller of Miller & Schwartz, P. A., Hollywood, for petitioner.
    George I. Platt of Schwartz & Nash, P. A., Fort Lauderdale, and Sales & Weiss-man, P. A., West Palm Beach, for respondent.
   DELL, Judge.

The petitioner seeks review by writ of certiorari under Rule 9.030(b)(2)(A), Florida Rules of Appellate Procedure, of a trial court’s denial of his motion to have foreign attorneys admitted to practice as co-counsel.

Petitioner/husband moved to admit three members of an Illinois law firm as co-counsel in the divorce suit sub judice. The firm has represented the husband for many years. These attorneys are familiar with the facts and circumstances of the divorce suit, the husband’s business, and his financial affairs. Respondent/wife objected to their admission to practice in Florida as co-counsel on the grounds that the firm and at least one of the attorneys, Peer Peder-sen, also represented her during the marriage, thus raising a conflict of interest. Respondent demonstrated that Pedersen prepared a will for her in 1981 and that the law firm engaged in tax planning for the couple earlier this year. She also presented evidence that Pedersen is one of petitioner’s partners in certain businesses which may constitute marital property; that Pedersen is a member of the Board of Directors of Waste Management, Inc., her family’s business; and that the principle asset in contention is 600,000 shares of Waste Management stock.

To obtain certiorari review, a petitioner must demonstrate that the trial judge departed from the essential requirements of law. This Court has held that a trial judge did not depart from the essential requirement of law in granting a motion to disqualify a Florida law firm where the firm’s continued representation would have resulted in the appearance of professional impropriety. Andrews v. Allstate Insurance Co., 366 So.2d 462 (Fla. 4th DCA 1978). We went on to hold that actual evidence of impropriety need not be shown to disqualify an attorney for possible conflict of interest. Id.

Petitioner argues that no appearance of impropriety exists because no attorney-client relationship ever existed between respondent and the firm. He contends that the firm prepared the will and did the tax planning for respondent as a mere third party beneficiary of his attorney-client relationship. We seriously question the propriety of this argument, but hold only that respondent made a prima facie showing of an attorney-client relationship, which petitioner has failed to overcome.

In the hearing on petitioner’s motion, respondent testified that Pedersen had been her father’s attorney and that she has known him since she was young. When asked if she told Pedersen all her little financial secrets for purposes of estate planning, respondent replied, “Well, most of the things Mr. Pedersen already knew there because he had been there since I was young.” Petitioner contends that respondent has failed to show that she made confidential communications to Pedersen, therefore she cannot establish the appearance of impropriety. The Code of Professional Responsibility protects more than confidential communications, it protects confidences and secrets of a client. Fla. Bar Code Prof. Resp., D.R. 4—101(A) & (B). This protection is broader than the evidentiary attorney-client privilege, and applies even though the same information is discoverable from other sources. Prichec v. Tecon Corp., 139 So.2d 712 (Fla. 3d DCA 1962); see Fla. Bar Code Prof. Resp. E.C. 4-2, E.C. 4-4, E.C. 4-5. Additionally, Pedersen is personally involved in certain business enterprises, including Waste Management, Inc., in which respondent claims an interest. A lawyer shall not use a confidence or secret of his client for the advantage of himself or of a third person. Fla. Bar Code Prof. Resp. D.R. 4-101(B)(3). Although respondent makes no allegation of impropriety, we agree that the situation is fraught with the potential for abuse, and thus raises the appearance of impropriety.

Petitioner attempts to distinguish the Andrews disqualification case on the grounds that its facts were more extreme. However, Andrews dealt with the disqualification of Florida attorneys. Pedersen, an Illinois attorney, is not qualified to practice in Florida. He seeks to become qualified. A practicing attorney of another state, in good standing, who has professional business in a Florida court may, upon motion, be permitted to practice for the purpose of such business. Fla. Bar Integr. Rule, Art. II, subd. 2. The right of a foreign attorney to practice in Florida is permissive and subject to the sound discretion of the court. Parker v. Parker, 97 So.2d 136 (Fla. 3d DCA 1957). Thus, in order to show a departure from the essential requirements of law, petitioner must prove that the trial judge abused his discretion. The facts herein do not demonstrate such abuse.

PETITION DENIED.

LETTS, C. J., and BERANEK, J., concur.


author: SCHEB, Judge.

text:
    David Lee WEATHERSPOON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2052.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant seeks reversal of his convictions for burglary and grand theft. The only meritorious point he raises is that the state failed to prove that the value of the stolen television set was in excess of $100. Thus, defendant argues there was no basis for the conviction of grand theft. On that point we agree with defendant.

The jury found the defendant guilty of burglary and grand theft. The trial court sentenced him to fifteen years on the burglary count and five years for grand theft with the sentences to run consecutively.

At trial there was testimony from which the jury properly concluded that defendant stole the television set. The only evidence as to the value of the television set came from testimony of the owner. When asked how much the television was worth, the owner replied “About three — ” before being interrupted by the judge. When asked a second time, the owner stated, “I was paying 90 for it. That’s what I was paying for it.” His further testimony established that the television was six months old when it was stolen.

Proof of the element of value is essential to a conviction for grand theft and must be established by the state beyond and to the exclusion of every reasonable doubt. Negron v. State, 306 So.2d 104 (Fla.1974). While inferences can be drawn from the testimony that the television set was worth in excess of $100, contrary inferences may also be drawn from the owner’s statements. Moreover, the owner’s testimony made no reference as to whether the value that he was attempting to discuss related to the television set when new or at the time it was stolen. The crime of grand theft, of course, requires proof of the market value when the offense occurred. § 812.012, Fla. Stat. (1979); Malloy v. State, 397 So.2d 1218 (Fla. 1st DCA 1981).

The state seeks to sustain the verdict of grand theft on the basis of this court’s recent opinion in Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982). There, we held that the nature of certain stolen property — a 37-foot sailboat, less than a year old— was indicative of an uncontrovertable minimum value which exceeded $100. In Jackson we cautioned that while it was proper there for a jury to have returned a verdict of guilty for grand theft based on the property having a value of $100 or more, that was an instance where “reasonable persons could not doubt that the value of the sailboat as described to the jury was $100 or more.” Jackson at 114. The rationale of Jackson is limited to those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.

Accordingly, we affirm the judgment and sentence for burglary, vacate the judgment and sentence for grand theft, and direct the trial court to enter an adjudication of guilt of petit theft and to sentence defendant therefor.

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


text:
    Susan BLACKMON, Appellant, v. NELSON, HESSE, CYRIL, WEBER & SPARROW, a partnership, Appellee.
    No. 81-795.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Guy M. Burns of Jacobs, Robbins, Gay-nor, Hampp, Burns, Cole & Shasteen, P. A., St. Petersburg, for appellant.
    F. Steven Herb of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for ap-pellee.
   PER CURIAM.

Nelson, Hesse, Cyril, Weber & Sparrow hired Susan Blackmon as a legal secretary in January, 1979. On April 10, 1979, Black-mon, according to the factual allegations contained in her second amended complaint, asked Ms. Steeves, the office manager, about obtaining coverage under the firm’s group health insurance plan. She allegedly told Ms. Steeves that she needed surgery, but this surgery could be delayed until she was enrolled in the health insurance program.

Blackmon alleges that Ms. Steeves then told her she would be included in the health plan upon her completion of her insurance application form that very day, and Ms. Steeves made deductions from her salary for premium benefits to effectuate coverage as of that day. Believing she was covered, Blackmon entered the hospital on April 17 and underwent surgery the following day. Ms. Steeves did not mail her application to the underwriter until April 16, and the company approved her application and made her membership in the group health plan effective April 23.

The trial court erred in dismissing the second amended complaint. Although no Florida courts have considered liability under these circumstances, The Restatement (Second) of Agency section 265 (1958), demonstrates that Blackmon has stated a cause of action in tort.

Section 265. General Rule
(1) A master or other principal is subject to liability for torts which result from reliance upon, or belief in, statements or other conduct within an agent’s apparent authority.
(2) Uniess there has been reliance, the principal is not liable in tort for conduct of a servant or other agent merely because it is within his apparent authority or apparent scope of employment.

Blackmon’s allegations would support a finding that as office manager for Nelson, Hesse, Cyril, Weber & Sparrow, Ms. Steeves had actual and apparent authority in employment matters such as group health insurance. She further alleges that she entered the hospital and underwent surgery relying upon Ms. Steeves’ assurance that she would be covered.

In Appleman, Insurance Law and Practice section 43.25 (1981), the authors state with respect to group health insurance contracts that “the employer may, himself, incur a liability arising out of his actions or his failure to act, if the employee has been adversely affected thereby.” In Rider v. Westinghouse Electric Corp., 152 Ga.App. 805, 264 S.E.2d 276 (1979), modified, 155 Ga.App. 61, 270 S.E.2d 288 (1980), an employee sued his employer, Westinghouse, to recover travel accident insurance benefits provided by Westinghouse and underwritten by the Insurance Company of North America. Westinghouse had issued a statement to the employee and his family which assured them that the employee was entitled and could “count on” a specified amount of travel accident insurance if he were killed while on a business trip. The court held that in the absence of any notice that the amount of accident insurance was qualified in any way, Westinghouse would be liable for the full amount of the accident insurance represented in the statement to the employee. In the instant ease, Black-mon has alleged that her employer’s agent’s failure to put her on notice of an effective date for her group health insurance different from that represented to her caused her to suffer injury.

In addition “liability may also arise where the employer misadvises concerning the coverage, and representations of the employer ordinarily will be construed in favor of an employee. ... ” Appleman, § 43.25, at 99, 100. See Boucher v. Valus, 6 Conn. Cir. 661, 298 A.2d 238 (1972). Here, Blackmon has alleged that Ms. Steeves told her that she would be covered when in fact she was not.

Finally, we note that The Restatement (Second) of Torts section 323 (1965), provides:

Section 323. Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Appellee undertook, through its agent, to assist employees like Blackmon in obtaining insurance coverage. Any negligence in the discharge of this task would tend to increase the risk of harm to its employees. Blackmon has alleged that she suffered injury arising from her reliance on appellee to procure insurance coverage for her under the group health plan. Accordingly, we reverse the order dismissing count II of Blackmon’s second amended complaint and remand for treatment consistent herewith.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    J.W.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-1797.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant challenges the order which found him to be delinquent for throwing an orange at a school bus. He was charged with “throwing a deadly missile” in violation of section 790.19, Florida Statutes (1979), which reads as follows:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The trial court accepted appellant’s plea of nolo contendere allowing appellant to reserve for appeal the dispositive legal question whether appellant’s act of throwing the orange constituted a violation of the statute. Because we think it did not, we reverse.

Appellant contends that his action of throwing the orange at the bus was not within the purview of the statute because, as a matter of law.on the facts presented, it cannot be said that the orange was a missile which would produce death or great bodily harm.

The state contends that the wording of the statute makes it clear that any hard object which could produce injury or death by being thrown, hurled, or projected into an occupied vehicle could qualify as a deadly missile, citing Zachary v. State, 269 So.2d 669 (Fla.1972). The state further argues that the factual scenario of each case will determine whether a particular object is a deadly missile, and that because the trial judge found that the orange was a deadly missile, we must affirm. The state points out that the trial judge indicated the orange could be a deadly missile when he said:

THE COURT: Very well, based on the stipulated fact that the orange being the instrument that was thrown, the Court will rule at this time that an orange can be classified as a — as qualifying under the statute of being a missile that could produce — I don’t think that it would produce death but I think it certainly can produce great bodily harm.

In the record before us, the factual basis for the plea indicates no facts that either the bus or any person was struck by the orange. The state attorney, speculating on some future case when the facts might be different, stated:

MR. FONTE: If these were oranges and they were thrown at a school bus, that was occupied by school students and [if] the oranges hit the windows of the bus and it’s the State’s contention that these oranges were capable of being a deadly missile and that the window could have busted and injury could have happened to school children. [Emphasis supplied.]

Such underlying facts were not among those presented to the trial judge to establish appellant’s guilt. All we know from the record is that appellant threw an orange at a school bus.

Our analysis of this case begins with the familiar doctrine, basic to our jurisprudence, that a criminal statute must be strictly construed in favor of an accused against whom a penalty is to be imposed, and against the state. Ferguson v. State, 377 So.2d 709 (Fla.1979).

Initially, we note that in some circumstances an orange can be a missile. The state’s argument is correct in that respect. We do not accept the argument of the appellant that because an orange is a soft fruit it can never be a missile under the purview of the statute. But the proscription of the statute does not end with an inquiry into the nature of the object thrown. Such an object must also be one which “would produce death or great bodily harm.” We do not agree with the state’s argument that Zachary is of assistance in resolving the application of that language of the statute to this case.

In Zachary our supreme court upheld the constitutionality of the statute against a vagueness attack on facts that indicated the defendant threw a twelve-ounce soft-drink bottle at an occupied police van from a distance of less than fifteen yards with force sufficient to achieve a flat trajectory. And in Mas v. State, 222 So.2d 250 (Fla. 3d DCA 1969), the district court affirmed the conviction of a defendant who threw an explosive firebomb at an occupied vehicle. As in Zachary, the Mas court had no trouble finding that the missile was one that would produce death or great bodily harm. We think the facts of those cases differ from those in the instant case.

In other cases factually closer to the case before us, courts which have considered the statute have emphasized the strict construction to be placed on it.

For example, in D. B. C. v. State, 341 So.2d 230 (Fla. 1st DCA 1976), the sole witness to an incident testified that while approximately 250 to 300 yards away, he saw three boys, one of whom was the appellant, throwing “something” in the direction of the train but did not see what they were throwing. It is upon this evidence that the trial judge found the allegations of the petition were sustained for throwing a deadly missile. The first DISTRICT COURT OF APPEAL deemed the evidence against the defendant to be wholly insufficient to prove felonious conduct proscribed by the statute.

Also, in J. T. K. v. State, 341 So.2d 229 (Fla. 1st DCA 1976), an appellant charged with a violation of the statute had allegedly thrown “rocks, ballast” at passing unoccupied boxcars. There was no damage to the boxcars. The court in J. T. K. similarly deemed the evidence wholly insufficient to support a violation of the statute.

We hold that the actions of the appellant do not fall within the purview of the statute. It was error for the trial judge to find that the throwing of the orange clearly would have produced death or great bodily harm. Accordingly, we REVERSE the order which adjudicated appellant to be delinquent.

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

      . missile — 1. Any object or weapon that is fired, thrown, dropped, or otherwise projected at a target; projectile. The American Heritage Dictionary of the English Language, (W. Morris, editor, 1978).

      . would — a word sometimes expressing what might be expected or preferred or desired. Often interchangeable with the word “should,” but not with “could.” Black’s Law Dictionary, 1441 (Rev. 5th Ed. 1979).


text:
    Ronald Leroy ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1936.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant appeals his conviction for assault charges. The trial court sentenced defendant to sixty days for assault and five years for aggravated assault. The multiple convictions are proper but the multiple sentences are not since assault is a lesser-included charge of aggravated assault. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). Because this is so, we remand the cause to the trial court with directions to vacate the sixty-day sentence for assault. We affirm all of defendant’s convictions and all other sentences.

HOBSON, A. C. J., and SCHEB and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Nita C. BASS and Eugene Bass, her husband, Appellants, v. Ida CARLSON, widow of John E. Carlson, Mary Edna Raulerson, Muriel E. Danley, Martha C. Rogers, Mary A. Whitehead and Shirley C. Billstone, Appellees.
    No. 81-2098.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Robert S. Edwards of Edwards, Sawyer & White, Plant City, for appellants.
    No appearance for appellees.
   RYDER, Judge.

All happy families resemble each other, each unhappy family is unhappy in its own way.

Nita and Eugene Bass appeal from the order cancelling a certain deed to real property and declaring appellees to be owners of the land. We reverse.

Appellees Ida Carlson, widow of John E. Carlson, and Raulerson, Danley, Rogers, Whitehead and Billstone, daughters of John E. Carlson, sued Nita Bass, another daughter of Carlson, and her husband seeking cancellation of a deed. In three counts, appellees sought to determine that the property subject of the litigation was the homestead of John E. Carlson at relevant times, and therefore the deed was void because Ida Carlson did not join. Count IV sought a determination that the deed was procured by undue influence, Count V sought judgment for value to improvements to the land alleging unjust enrichment, Count VI alleged that the deed was procured by fraud, and Count VII asked the court to declare that Ida Carlson had a special equity in the land. Count VIII asked the court to declare that the deed constituted a resulting trust for the use and benefits of appellees, and finally, Count IX requested that the court enforce a 1957 oral agreement among the heirs of John E. Carlson to divide the land between them. Appellants counterclaimed seeking a judgment quieting title to the land.

John E. Carlson acquired title in his sole name to the forty-acre tract of land during 1939. For parts unknown and unchartered by the record, Carlson left his wife and children on the farm in 1948. In 1957, the county court entered an order of presumption of death, holding that Carlson was presumed dead pursuant to statutes then in effect. Subsequently, a new house was constructed on the property for Ida Carlson to live in, and appellees and appellants had discussion as to division of the property. During 1958, the parties agreed that appellants should move onto a portion of the property so as to be near Ida Carlson. In 1959, a written instrument was executed whereby Ida Carlson and the Carlson daughters conveyed to appellants a four-acre tract of the forty acres. The document contained a notation that it was an advancement to appellant of her full interest in the estate of John E. Carlson. Appel-lees presented evidence that at the time of the execution there was an oral agreement between the parties that Nita Bass agreed to convey to them the remaining property other than the aforesaid four acres. A loose understanding existed wherein the remaining property would be divided between all of the children and Ida Carlson.

Arising from his legal grave, John E. Carlson inexplicably returned to Plant City in early 1964, and a family reunion occurred in appellants’ home. However, because of his continued errant ways, no member of the family regularly communicated with or had self-initiated contact with Carlson other than appellants.

In 1976, at the instance of Ida Carlson, an order was entered revoking the presumption of death and Ida Carlson was discharged as administratrix. Subsequently, and in March of 1976, John E. Carlson conveyed the identical four acres of the land to appellants. But here’s the rub — in May of 1976, Carlson also conveyed to appellants the balance of the forty-acre tract. Appellants, however, orally agreed to give Ida life tenancy. Carlson died in 1979.

Because of homestead exemption filed on the application of Ida Carlson, no real estate taxes were paid on the property until 1967. The property was assessed in the name of John E. Carlson. Commencing in 1967 or 1968, despite frustration, appellant tried to see after her father, helped him find places to live, nursed him, cared for him and helped to manage his affairs.

The court found that the parties had agreed in 1958 or 1959 that each daughter should receive four acres of land and that Ida Carlson would receive the remainder. The court found further that the agreement had been partially performed by the conveyance to appellants. Finding that the agreement should be enforced, the court cancelled the deeds to appellants and declared appellees to be the owners of the land described in the exhibit other than the four acres conveyed to appellants in 1958.

The court below apparently felt that the moral issues favored appellees. Unfortunately, and with due respect to the highly respected and greatly admired trial judge, we are not able to form any legal basis which would permit his order to stand. No assistance therein was rendered to us by appellees who did not trouble themselves to participate in this appeal.

From the record and arguments before us, nothing appears which would have prevented John E. Carlson from alienating the land in 1979 to appellants or anyone else. Homestead status did not attach to the property at that time since neither the owner nor any dependents resided on the property in a “head of household” relationship. Passmore v. Morrison, 63 So.2d 297 (Fla.1953); In Re: Estate of Van Meter, 214 So.2d 639 (Fla.2d DCA 1968), aff’d, 231 So.2d 524 (Fla.1970). No facts, none whatsoever, were produced to support ap-pellees’ allegations of undue influence, unjust enrichment, fraud, special equity or a resulting trust; and we note that the lower court did not grant relief on those grounds. The basis for the ruling below was enforcement of an oral agreement to divide the land among the supposed heirs, entered into when the order of presumption of death was enforced. However, John E. Carlson’s reappearance voided that assumed agreement because none of the parties thereafter had any power to determine who owned the land. The conveyance by appellees to appellants became invalid when the presumption of death was revoked, since appellees then had no interest in the land to convey. The subject of the agreement, the estate of John E. Carlson, no longer existed. The agreement was voided because it was based on the mutual mistake of fact that John E. Carlson was dead and that the parties had a land interest which could be conveyed. See Jones v. Walter C. Hardesty, Inc., 100 Fla. 155, 129 So. 497 (1930). The later conveyance by Carlson to appellants was thus not affected by the voided, presumption of death or distribution agreement among the supposed heirs.

The order below is REVERSED and the case REMANDED for entry of judgment for appellants.

HOBSON, A.C.J. and CAMPBELL, J., concur.

      . L. Tolstoy, Anna Karenina, at 1 (1918).


text:
    Samuel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2364.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty.- Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find that the appellant has failed to demonstrate any reversible error; therefore, the judgment and sentence is affirmed. However, that portion of the court’s order requiring appellant to pay court costs and to make payments to the Crimes Compensation Trust Fund is stricken because the appellant was found insolvent by the trial court. See Engle v. State, 407 So.2d 641 (Fla.2d DCA 1981).

GRIMES, A. C. J., and SCHEB and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jerry Wayne KEY, Appellee.
    No. 82-262.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.

      Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellee.
   RYDER, Judge.

The state appeals from the dismissal of its indictment against Jerry Wayne Key for first degree murder, arguing that the lower court erred in finding unconstitutional pros-ecutorial vindictiveness. We agree that no unconstitutional vindictiveness appears and we reverse.

The state charged appellee by indictment with premeditated murder. Appellee moved to dismiss, alleging that he had earlier been charged by information with second degree murder, and that no new evidence was discovered by the state prior to return of the indictment by the grand jury. The motion alleged that the sole reason for the enhanced eharge was appellee’s exercise of his right to maintain his innocence.

At hearing, counsel for appellee told the court that the assistant state attorney had communicated to him during prior plea discussions that appellee would either have to plead guilty to second degree murder or he would be indicted for first degree murder. In response, the state narrated that it sought the indictment after appellee failed to plead to the second degree charge. The trial judge granted the motion and dismissed the indictment.

We note initially that the posture of the case is odd. No facts to support the motion to dismiss were placed before the court. No sworn testimony was taken by the court as to the prior events; no affidavits were submitted and no stipulations were made. The appellee simply argued allegations, and the state responded without discussing facts. The court then imposed the severe, last resort penalty of dismissing the indictment for premeditated murder. However, the parties did not address this issue on appeal or in the trial court, and we do not discuss it further.

Taking all of appellee’s arguments as true, dismissal of the indictment was improper. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the United States Supreme Court considered allegations of prosecutorial vindictiveness arising in a pretrial setting. In that case, the prosecutor told the defendant that if he did not plead guilty, the prosecutor would return to a grand jury and attempt to obtain an additional charge to increase the potential punishment. The defendant refused to plead guilty, and the prosecutor presented the case to the grand jury which returned the sought after indictment. The defendant in Bordenkircher did not allege that the additional charge was unjustified on the evidence, and it was admitted that the evidence substantiating the charge was in the possession of the prosecutor at the time the original indictment was returned. The Supreme Court held that there was no element of punishment for assertion of the right to go to trial in the give and take of plea negotiation, as long as the accused was free to accept or reject the prosecution’s offer. By tolerating and encouraging plea negotiation, the court noted that it accepted as constitutionally legitimate the reality that the prosecutor has an interest at the bargaining table to persuade the defendant to forego his right to stand trial. The court noted that additional charges could not be characterized as an impermissible penalty. Since the charges brought in the original indictment might be abandoned in the course of plea negotiations, a benefit to the defendant, the Supreme Court reasoned that changes in the charging decision that occur in the context of plea negotiation are not a measure of prosecutorial vindictiveness. Just as the prosecutor may forego legitimate charges already brought to save the time and expense of trial, the prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to a lesser charge proves unfounded.

The Supreme Court has recently reaffirmed the absence of a presumption of prosecutorial vindictiveness in similar circumstances. United States v. Goodwin, -U.S. -, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). We hold the case below to be controlled by the holding in Bordenkircher. No impermissible prosecutorial vindictiveness appears from the state’s alleged bargain of either a guilty plea or return of an indictment for premeditated murder.

The order below is REVERSED and the case REMANDED for further proceedings.

BOARDMAN, A. C. J. and CAMPBELL, J., concur.

      . We note that Key was charged by the police with first degree murder when he was initially arrested.


author: BOARDMAN, Judge.

text:
    Gary A. ROBINSON, Appellant, v. Barbara Kay SWAIM, a/k/a Barbara Kay Robinson, Appellee.
    No. 82-605.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1982.
    Robert L. Williams of Carroll, Bolesky, Neinas, Naples, for appellant.
    No appearance for appellee.
   BOARDMAN, Judge.

Gary A. Robinson (the husband) appeals a postjudgment order granting a motion for attorney’s fees to appellant’s ex-wife. We reverse.

The parties’ marriage was terminated by default, and the final judgment of dissolution did not provide for attorney’s fees. Subsequently, the trial court granted the wife’s motion for attorney’s fees in a separate action brought by the husband seeking to enjoin the wife from pursuing an alimony suit she had instituted in North Carolina. The trial court denied injunctive relief to the husband and provisionally granted the wife’s motion for attorney’s fees incurred in defending against the petition for injunction, the amount to be determined later based on a showing of need.

Section 61.16, Florida Statutes (1981) provides that a party may be entitled to reasonable attorney's fees in any proceeding under Chapter 61. However, the statute does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final divorce decree. Kang v. Kang, 386 So.2d 602 (Fla. 5th DCA 1980).

Inasmuch as the parties’ marriage had previously been terminated without any award of attorney’s fees and the present action did not concern enforcement or modification of the judgment of dissolution, an award of attorney’s fees pursuant to section 61.16 was not authorized.

Accordingly, the order granting the wife’s motion for attorney’s fees is REVERSED.

HOBSON, A. C. J., and DANAHY, J„ concur.


text:
    Evelio MANTILLA and American Motorists Insurance Company, a corporation, Appellants, v. Olimpia HASSANIEN and Mohamed Nabil Hassanien, individually and as husband and wife and as parents of Nermine Hassanien, a minor, Appellees.
    No. 79-2411.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bradford A. Thomas, Miami, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Marco B. Loffredo, Miami, for ap-pellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 20,1981, (396 So.2d 1135, 1136) reversed and remanded the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 29, 1982, 418 So.2d 254 and mandate now lodged in this court, quashed this court’s judgment.

NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued on May 19, 1981 is withdrawn, the judgment of this court filed January 20, 1981 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400 a, Florida Rules of Appellate Procedure).


author: FERGUSON, Judge.

text:
    The STATE of Florida, Appellant, v. Allen HOAG and Douglas Cleveland, Appellees.
    No. 81-1740.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

The State appeals from a trial court order dismissing one count of a three-count information. The dismissed count charges the defendants with unlawful discharge of a destructive device in violation of Section 790.161(3), Florida Statutes (1979).

Considering Section 790.161(3) in its general context it is obvious that the legislative purpose is not served by applying the mandatory ten-year imprisonment statute where a person, uses a destructive device, in a safe and nondisruptive fashion, to demolish his personal property. No conceivable public purpose could be served by prosecuting harmless conduct pursuant to a mandatory imprisonment statute where there is another statute, with a discretionary sentence provision, prohibiting those same acts which constitute the material part of the charge. Had the statute been applied to the facts of this case we would be faced with a serious challenge as to its constitutionality. See State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969) (criminal statute forbidding intentional damage by an explosive substance without criminal as opposed to honorable intent held unconstitutional as an unreasonable exercise of police powers). The trial court rationally interpreted the act to harmonize with the Constitution and legislative purpose — as was its duty. Holley v. Adams, 238 So.2d 401 (Fla.1970).

We affirm.

      . Chapter 790, Florida Statutes provides in Section 790.161:
      Any Person who makes, possesses, throws, places, discharges, or attempts to discharge any destructive device, with intent to do bodily harm to any person or with intent to do damage to property: •
      (1) Shall be guilty of a felony of the second degree ...
      (2) If the act results in a disruption of government operations, commerce, or the private affairs of another person, shall be guilty of a felony of the second degree, .. and the person shall be required to serve a term of imprisonment of not less than 5 calendar years before becoming eligible for parole.
      (3)If the act results in bodily harm to another person or in property damage, shall be guilty of a felony of the first degree, ... and the person shall be required to serve a term of imprisonment of not less than 10 calendar years before becoming eligible for parole.

        (4) If the act results in the death of another person, shall be guilty of a capital felony, punishable by death ...

      . “If a statute is to make sense, it must be read in light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” K. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand.L.Rev. 395, 400 (1950). The harsh statute was enacted, unquestionably, to punish acts which are malum in se as contrasted with acts malum prohibitum. See, e.g., Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979).

      . “Destructive device” means any explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device, ... § 790.-001(4), Fla.Stat. (1979).

      . For the purpose of the Motion to Dismiss the parties stipulated to certain facts:
      The destroyed property, a “junk vehicle”, was driven to an isolated portion of the Everglades more than a mile away from any structure. All oil and gasoline was removed. A group of young spectators was warned to leave the immediate area because the car was going to be “blown”. The explosion, witnessed by several people, resulted in no damage to other property.

      . The gravaman of the offense in this case is the unlawful possession and use of explosives. In certain circumstances destruction of one’s personal property is not an unlawful act. Cf. State v. Mayle, 406 So.2d 108 (Fla. 5th DCA 1981) (defendant burning his van and destroying it, with no damage to any person or other property nor intent to damage anything except the van was not an unlawful act within meaning of the arson statute). See also Lofton v. State, 416 So.2d 522, 523 (Fla. 4th DCA 1982) (new arson statute § 806.01(l)(a) does not require showing of civil intent, only that willful act was done without a legitimate, lawful purpose).

      . Defendants were charged in Counts 2 and 3 with violation of Sections 552.101 and 552.22, Florida Statutes (1979) which provide:
      552.101. POSSESSION WITHOUT LICENSE PROHIBITED, EXCEPTIONS.— It is unlawful for any person to possess an explosive unless he is the holder of a current, valid license or permit, ... and possesses such explosives for the purpose covered by the license or permit he holds.... 552.22. PENALTIES.—
      (1) Any person who ... possesses ... or uses any explosive with the intent to harm life, limb, or property, is guilty of a felony of the second degree, ... [possessing explosives under circumstances contrary to the provisions of this chapter ... shall be prima facie evidence of an intent to use the same for destruction of life, limb or property.


text:
    AETNA CASUALTY AND SURETY COMPANY, as Subrogee of Michael Glynn Evans and General Waterworks Corporation, individually; and Home Insurance Company, as Subrogee of Michael Glynn Evans and General Waterworks Corporation, individually, Appellants, v. VOLKSWAGEN OF AMERICA, INC., Appellee.
    No. 81-1813.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Stephens, Lynn, Chernay and Klein, and Robert M. Klein, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley and George Chesrow, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

It was established beyond genuine issue that the appellants “[a]greed ... to discharge the common liability” for two pending cases more than one year prior to commencing this action for contribution against the appellee Volkswagen, an alleged joint tortfeasor. Hence, the trial court properly entered summary judgment that the cause was time-barred under Section 768.-31(4)(d)2, Florida Statutes (1979).

Affirmed.


text:
    Judith HERSKOWITZ, individually and as Natural Guardian of Robert Herskowitz, and Mark Herskowitz, minor, by and through his Mother and Next Friend Judith Herskowitz, Appellants, v. Joseph NESBITT, Gene Williams, and Herbert M. Klein, individually and as Judges of the Circuit Court, In and For Dade County, Appellees.
    No. 81-1971.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.

      Judith Herskowitz and Robert Herskow-itz, in pro. per.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appel-lees.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We agree with the trial court that the alleged fact that the appellees presided over the probate of an estate beyond the twelve month period provided by Sec. 733.-901, Fla.Stat. (1979) and Fla. R.P. & G.P. 5.400 did not render them without subject matter jurisdiction over the cause. Hence, the pertinent exception to the rule of absolute immunity from damage claims for judicial rulings made in an official capacity does not apply. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975); Ceinar v. Johnston, 134 Cal.App. 166, 25 P.2d 28 (1933). The dismissal with prejudice of the amended complaint is therefore

Affirmed.


text:
    Gregorio BORREGO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2000.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Bennett H. Brummer, Public Defender and Arthur L. Rothenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Benitez, 395 So.2d 514 (Fla.1981).


text:
    Sanford K. BRONSTEIN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2290.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Marco Loffredo, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Tobin v. State, 401 So.2d 938 (Fla. 1st DCA 1981).


author: SCHWARTZ, Judge.

text:
    Willie SHORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2509.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Bennett H. Brummer, Public Defender and Michael A. Matters, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

The sole point raised by the appellant in this cause, in which he was certified by the juvenile division for trial as an adult, claims the right to discharge under the speedy trial rules. We conclude that the 90 day period provided by Fla.R.Juv.P. 8.180(a) was rendered inapplicable by an order correctly extending the time under Fla.R. Juv.P. 8.180(d) because the juvenile did not appear after being properly summoned. Compare L.G. v. State, 405 So.2d 252 (Fla. 3d DCA 1981). For the same reason, the 180 day adult period did not bar the trial because the defendant was not “continuously available for trial” under either the pre- or post- January 1, 1981 version of Fla.R. Crim.P. 3.191(e).

Affirmed.

      . There was no claim or showing of the defendant’s entitlement to discharge because of a violation of his constitutional speedy trial rights.


text:
    DADE COUNTY SCHOOL EMPLOYEES FEDERAL CREDIT UNION, INC., Appellant, v. F. B. BYSTROM, Property Appraiser for Dade County, Florida, Appellee.
    No. 81-2548.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Debbi Landsberg and Bruce M. Boiko, Coral Gables, for appellants.
    Robert A. Ginsburg, County Atty. and Vicki J. Jay, Asst. County Atty., for appel-lee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Korash v. Mills, 263 So.2d 579 (Fla.1972); Sec. 193.092, Fla.Stat. (1977).


text:
    Cruz Daniel BRAMNICK, Appellant, v. Elsa SPRAGUE, a single woman, Appellee.
    No. 81-2686.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Lee Weissenbom, Miami, for appellant.
    Magill, Reid, Kuvin & Lewis and Fred Lewis, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Elison v. Goodman, 395 So.2d 1201 (Fla.3d DCA 1981); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla.3d DCA 1977); Garris v. Robeison, 146 So.2d 388 (Fla.2d DCA 1962).


text:
    Fred KLOSENBERG, Appellant, v. Cathy Lyn KLOSENBERG, Appellee.
    No. 81-2701.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Ephraim Collins, Margate, for appellant.
    No appearance for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Because the county judge had not been specifically designated to act as a circuit judge in this domestic proceeding, Klosenberg v. Rainwater, 410 So.2d 1009 (Fla. 3d DCA 1982), the order of contempt appealed from is void.

Reversed.


text:
    Richard G. ACCOLLA and Marlene Accolla, his wife, Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 82-125.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Fuller & Feingold, Miami Beach, for appellants.
    Robert A. Ginsburg, Dade County Atty. and Roy Wood, Asst. County Atty., for ap-pellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

The judgment for Metropolitan Dade County entered in accordance with its motion for directed verdict is affirmed. Weissman v. K-Mart Corporation, 396 So.2d 1164 (Fla. 3d DCA 1981); Toomey v. Tolin, 311 So.2d 678 (Fla. 4th DCA 1975); Boca Raton v. Coughlin, 299 So.2d 105 (Fla. 4th DCA 1974); City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960). See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The County’s cross-appeal from an adverse ruling on its motion for judgment on the pleadings is thereby rendered moot.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Noemi G. GOMEZ, Appellee.
    No. 82-279.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.

      Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We find no abuse of the trial court’s discretion in dismissing the information with prejudice because, as it found, the state’s inexcusably tardy and inadequate compliance with an order requiring a bill of particulars had adversely affected the defendant’s ability to prepare for trial. See and compare, Leeman v. State, 357 So.2d 703 (Fla.1978) (trial court found no prejudice in non-compliance with order).

Affirmed.


text:
    Nancy LUIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 82-283.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Leonard Sussman, Miami, for appellant.
    Dickman & Barnett and James K. Clark, Coral Gables, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Sec. 627.4132, Fla.Stat. (1977); see, State Farm Mutual Automobile Ins. Co. v. Kuhn, 374 So.2d 1079 (Fla.3d DCA 1979), appeal dismissed, 383 So.2d 1197 (Fla.1980).


text:
    Robert C. BENTON and Mary L. Benton, his wife, Appellants, v. Frank R. CAPPELLA and Barbara A. Cappella, Appellees.
    No. 82-404.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    A. M. Schwitalla, Coral Gables, and John Goodman, Miami, for appellants.
    Burt E. Redlus, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Smith v. Landy, 402 So.2d 441 (Fla. 3d DCA 1981).


text:
    Sol PITTMAN, Appellant, v. Jerome BROWN, Appellee.
    No. 82-424.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Lawrence C. Rice, South Miami, for appellant.

      Kelner & Kelner, Miami, for appellee.
    Before SCHWARTZ, BASKIN and PEARSON, DANIEL S., JJ.
   PER CURIAM.

Affirmed. Klepper v. J.C. Penney, Inc., 340 So.2d 1170 (Fla. 4th DCA 1976).


text:
    Henry Lee PAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1762.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1982.
    Bennett H. Brummer, Public Defender and Michael A. Rosen, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 28, 1981, 398 So.2d 859, reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 29, 1982, 418 So.2d 254 and mandate now lodged in this court quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court entered in this cause on June 19, 1981 is withdrawn, the opinion and judgment of this court filed herein on April 28,1981, is vacated, the said opinion and judgment by the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the Circuit Court herein appealed is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author:
BLANCHE, Justice.
     DIXON, Chief Justice, LEMMON, Justice, LEMMON, Justice. DIXON, Chief Justice,

text:
    STATE of Louisiana v. Rosetta K. JACKSON.
    No. 81-KA-0422.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    On Rehearing Sept. 7, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Houston C. Gascon, III, Jack T. Marionneaux, Asst. Dist. Attys., for plaintiff-appellee.
    John E. Bride, Asst. Indigent Defender, Sunshine, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Rosetta K. Jackson, was charged by grand jury indictment with second degree murder, a violation of R.S. 14:30.1. Defendant was convicted by unanimous vote of the jury and the court sentenced her to life imprisonment. The defendant appealed relying on two assignments of error. We affirm.

Assignment of Error Number 1

The defendant contends the trial judge erred in overruling her objection to allegedly leading questions the prosecutor asked a witness for the state. A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness is unwilling or hostile. R.S. 15:277. The reason for this is the danger that a witness may acquiesce in a false suggestion. State v. Francis, 337 So.2d 487 (La.1976). During the redirect examination of the coroner by the state, the following colloquy took place:

“Q. Then the bullet entered the mouth when it was open?
A. Yes, sir, as far as we could tell. Q. Were teeth knocked out as a result of—
Mr. Bride: Objection, Your Honor, the—
A. Yes, two upper incisors.
The Court: Just a minute, Doctor, when an objection is made, please refrain from answering until the Court has an opportunity to hear the objection.
Mr. Marionneaux: Your Honor, he is an expert witness and I can lead him. The Court: Well, I don’t know what the basis of the objection was, Mr. Mar-ionneaux.
Mr. Bride: It was on a leading question, Your Honor.
The Court: The objection is overruled. Proceed.
Q. Were teeth knocked out as a result of the entrance of the bullet?
A. Presumably.
Q. There were teeth missing?
Mr. Bride: Again, I am going to object. If he is an expert, he hasn’t been qualified as such.
The Court: Mr. Marionneaux, do you wish to rephrase your question?
Mr. Marionneaux: Yes, sir.
Q. From your personal observation, were there any teeth missing in the mouth of the decedent?
A. In the emergency room, polaroid photographs were made and there is a view which distinctly shows the absence of the incisor upper teeth.”

Control of the examination of witnesses is within the sound discretion of the trial judge. Absent a showing of an abuse of discretion, this Court will not disturb the trial court’s ruling. State v. Carter, 363 So.2d 893 (La.1978). Further, even if these questions were improper, the defendant has failed to show any prejudicial effect that the question had on her defense. Although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused’s rights. State v. Swift, 363 So.2d 499 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977).

This assignment lacks merit.

Assignment of Error Number 2

The defendant contends the trial judge erred when he refused to allow the defense counsel to question witnesses about the dangerous character of the victim in support of the defendant’s plea of self-defense under R.S. 14:20.

Evidence of the decedent’s dangerous character or his threats against the accused is admissible in support of a plea of self-defense, provided that the accused first produces evidence that the decedent made a hostile demonstration or overt act against the accused at the time of the incident. See R.S. 15:482.

“The reason for the overt act foundation
requirement has been expressed as follows:
‘There ought, of course, to be some other appreciable evidence of the deceased’s aggression, for the character-evidence can hardly be of value unless there is otherwise a fair possibility of doubt on the point; moreover, otherwise the deceased’s bad character is likely to be put forward to serve improperly as a mere excuse for the killing, under the pretext of evidencing his aggression, and it is often feasible to obtain untrustworthy character-testimony for that purpose.’
I Wigmore on Evidence, § 63 (3d ed. 1940). See State v. Young, 344 So.2d 983 (La.1977); State v. Lee, infra.”

In the case at bar, we feel that the requisite foundation was established by the testimony of William Knight, the brother of both the victim and the defendant. William Knight and the defendant testified to substantially the same sequence of events immediately prior to the shooting as set forth below.

On January 2, 1980, the defendant, the victim and Mr. Knight and other family members were present at a family gathering at the home of their mother in Dorsey-ville, Louisiana. There was a disagreement between the defendant and the victim over which record to play and an argument ensued during which the victim began stepping on the defendant’s feet. The victim would not stop arguing so Mr. Knight carried her out of the house and she went to the car, came back to the door of the house, and threatened the entire family. Defendant went outside, intending to leave for the evening, approximately ten to twenty minutes later, and as she was walking toward the car that was coming to pick her up, the victim approached her with her right hand held behind her back. The victim was cursing the defendant as she approached and the defendant begged her to stay away. The defendant fired a warning shot into the ground when the victim continued to advance on her with her hand still behind her back. Defendant fired a second shot which was aimed low and hit the victim in the leg, but this also failed to halt her advance. The defendant was now backed up against another car which was parked in the yard and she fired the fatal shot when the victim was close to her and still advancing. This shot hit the victim in the mouth, transecting the spinal cord, and was the immediate cause of death.

The evidentiary foundation necessary under R.S. 15:482 to introduce testimony as to the victim’s dangerous character is appreciable evidence of an overt act against the defendant. An overt act by the victim must be one which would cause a reasonable man to fear that he is in imminent danger of great bodily harm. State v. King, 347 So.2d 1108 (La.1977). The circumstances described here were sufficient to meet this evidentiary prerequisite. The fact that the victim continued to advance on the defendant in a hostile and frightening manner even after the defendant had fired two shots was enough to make the defendant believe that the victim was concealing a weapon. The relevant inquiry is not whether or not the victim actually had a weapon behind her back, but whether or not the defendant could reasonably believe she did. In this case, the defendant could have reasonably believed that she was in imminent danger of death or great bodily harm.

When appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact determination function of the jury by disbelieving this defense testimony and, thus, deny the accused a defense permitted him by law. State v. Lee, 331 So.2d 455 (La.1976); State v. Green, 335 So.2d 430 (La.1976). For this reason, once Mr. Knight testified about the incident, the trial court should have accepted these facts as true, at least for the purpose of deciding whether or not an overt act had been shown.

A trial judge’s determination that the defendant has not laid a sufficient eviden-tiary foundation upon which to introduce testimony concerning the victim’s dangerous character will not be disturbed absent a finding of clear error. State v. Burkhalter, 319 So.2d 392 (La.1975). In this case, the determination that an overt act had not been shown was clearly erroneous; therefore, all admissible evidence about the victim’s dangerous character was improperly excluded after William Knight’s testimony.

The statutory provision governing matters which are not grounds for reversal provides that a judgment or ruling shall not be reversed by an appellate court because of any error, defect or irregularity, or variance which does not affect substantial rights of the accused. C.Cr.P. art. 921. Therefore, the critical determination is whether or not the trial judge’s erroneous ruling, which resulted in the exclusion of some of the testimony concerning the victim’s character, affected a substantial right of the defendant.

The jurisprudence contains few cases concerning the effect of a failure to admit testimony about the victim’s character when self-defense is argued as a defense. The majority of cases deal with testimony that is erroneously admitted rather than testimony which is improperly excluded; however, in State v. Lee, 331 So.2d 455 (La.1975), this situation was discussed. In Lee, the defendant shot and killed the victim, Etchieson, after Lee’s son and Etchie-son’s daughter had a fight while waiting for the Sunday School bus. Lee testified that when they came out of their houses to check on the children, the victim sprang at him with a knife shouting, “I’m going to cut off your head.” The accused relied upon a defense of self-defense and said that he only shot the victim to protect himself. The defendant was permitted to describe his own difficulties with the decedent and to testify about a violent act he had seen him commit; but state objections were sustained to questions asked of him and another defense witness which prevented him from attempting to establish the decedent’s dangerous and violent character. This Court reversed the conviction and held that the effect of the rulings was to deprive the defendant of the opportunity to establish the known dangerous character of the decedent by the testimony of other witnesses, since his testimony might be regarded as self serving in the absence of corroboration. This Court also noted that the accused had a statutory right to present such evidence and the substantial curtailment of this right could not be regarded as harmless.

Although Lee set forth the law that is applicable in this area, it is not dispositive of the case at bar. In Lee, the line of questions to which objections were sustained was clearly designed to elicit testimony from other witnesses concerning the victim’s violent character and the exclusion of these questions left the defendant no opportunity whatsoever to corroborate his testimony concerning the victim’s dangerous character. In this case, only two questions were improperly excluded concerning the victim’s violent character; both were to William Knight, the brother of both the victim and the defendant.

The first question addressed to William Knight to which an objection was sustained was, “Did you ever know her [the victim] to carry a gun?” In Louisiana, character may be shown in support of a plea of self-defense by general reputation in the community or by prior threats against the defendant or specific acts that were known to the defendant at the time of the offense. State v. Lee, supra. Since this question did not seek to elicit testimony concerning the victim’s general reputation or specific acts known to the defendant, the answer was properly excluded, even though the basis for the exclusion was incorrect.

The second question to which an objection was sustained arose when the defense questioned Knight concerning what the victim said to the people in the house after he made her leave because of the fight over which record to play. The question began, “Was she threatening to harm anyone in the ...” and the objection was made before the question was completed. This question was arguably admissible since it sought to elicit testimony concerning a prior threat made by the victim against the defendant. However, since the threat was directed at the entire family and not the defendant in particular, it was arguably properly excluded because it was not a threat against only the defendant. Regardless of whether or not the question should have been allowed as constituting a threat against the defendant, the exclusion did not affect the defendant’s statutory right because this same question had been answered by William Knight earlier in his testimony in the following discussion:

“Q. Was she threatening the people in the house?
A. Yes, all of them.
Q. What was she threatening to do to them?
A. She dared us out of the house.”

The defendant later gave the exact language of the threat in her testimony and she had the benefit of William Knight’s corroboration since he testified that the victim was daring the family out of the house and the defendant’s testimony was to the same effect.

The only other time a question was excluded, it was immediately rephrased and the desired information was obtained. This occurred when defense counsel questioned the defendant concerning what the victim said as she advanced on the defendant. The court sustained an objection to the question, “Was she making any threats?”, but allowed an answer to the counsel’s next question, “When she was approaching you, what did she say?”. The response to the second question was the exact language of the threat made by the victim against the defendant.

This case also differs significantly from Lee because in Lee, no witnesses other than the defendant were ever allowed to testify concerning the victim’s violent nature, while in the instant case, the trial court allowed the defense to call a defense witness to testify about the victim’s dangerous character. The court obviously felt that the proper foundation upon which to admit character testimony had been laid at some point after Mr. Knight’s testimony because no objection to questions asked of the defense witness about the victim’s character was ever sustained; therefore, the defendant had a full opportunity to develop testimony concerning the victim’s violent and dangerous character.

For the reasons stated, we find that the rulings complained of did not affect a substantial right of the accused. Therefore, this assignment lacks merit.

The conviction is affirmed.

AFFIRMED.

DIXON, C. J., and LEMMON, J., dissent and assign reasons.

DIXON, Chief Justice,

dissenting.

I respectfully dissent because I could find no evidence in the record that defendant did not shoot the victim in self-defense.

LEMMON, Justice,

dissenting.

I disagree that defendant was not prejudiced by the erroneous exclusion of evidence of the victim’s dangerous character.

After establishing a hostile demonstration by the victim, defense counsel asked two questions of William Knight, who was the brother of both the victim and the accused. The first question concerned the victim’s habit of carrying a gun. A sustained objection prevented the defense from pursuing this line of questioning, not because the gun carrying was not shown to be an act known by the defendant, but because there was no evidence of a hostile demonstration.

The second question concerned prior threats by the victim on the day of the offense. Stating “we are going to back up a little bit”, defense counsel then asked “Was it your testimony that she [the victim] was threatening — ?” The prosecutor interrupted with an objection to such a question “without showing what I stated before — an overt act or a hostile demonstration”. Thus thwarted, defense counsel asked no further question.

When the two questions are considered in context, it is unreasonable to conclude that the erroneous ruling (that the defense had not established a hostile demonstration) did not prejudice presentation of the defense of self defense, since knowledge of the victim’s dangerous character was apparently critical to establishing the reasonableness of defendant’s apprehension of danger.

ON REHEARING

LEMMON, Justice.

The crucial issue in this appeal involves the trial court’s ruling that defendant had failed to establish an “overt act” or “hostile demonstration” and was therefore precluded by R.S. 15:482 from offering evidence of the victim’s dangerous character or prior threats against the accused. On original hearing, this court held that the ruling, although erroneous, did not deprive defendant of a fair trial on her plea of self-defense. On reconsideration, we reverse the conviction and remand for a new trial.

The facts are essentially undisputed. Defendant and the victim were sisters. After an argument erupted during a family gathering at their mother’s home, the victim was ejected from the party by her brother, because she was creating a disturbance and had threatened to harm various family members. About 10 or 20 minutes later, defendant went outside to meet the car that was coming to transport her home. The victim, holding her right arm behind her, approached defendant in a hostile and threatening manner, cursing defendant as she moved forward. Defendant beseeched her sister to stop and then fired a shot into the ground at her feet. When the victim continued to advance with menacing words and gestures, defendant shot her in the leg. At that point, the victim paused, but then, according to defendant’s corroborated testimony, “broke toward” or “sprang at” the defendant, who was backed up against a car. Defendant reacted by immediately firing a shot directly at her sister, killing her instantly. No weapon of any sort was discovered on or near the victim’s body.

Defendant was indicted for second degree murder. R.S. 14:30.1. A jury rejected her plea of self-defense and found her guilty as charged. She was sentenced to life imprisonment at hard labor.

There is no doubt that defendant, while acting with a specific intent to kill or inflict great bodily harm, shot her sister to death. Further, there is no doubt that defendant reasonably believed herself to be in imminent danger of some degree of physical assault. Based on these essentially uncontested facts, the jury was primarily called upon to decide whether defendant reasonably believed that she was in “imminent danger of losing (her) life or receiving great bodily harm and that the killing (was) necessary to save (herself) from that danger”. The evidence would have supported a jury decision accepting or rejecting the plea of self-defense. R.S. 14:20.

Thus, the determination of defendant’s culpability focused on her state of mind, that is, the reasonableness of her apprehension of great bodily harm justifying the use of a pistol. Whether a reasonable fear of grave harm warranted defendant’s use of deadly force was the crucial issue for the jury’s determination. It is in that context that we must evaluate the impact of the trial court’s erroneous ruling that defendant failed to show a “hostile demonstration” on the part of the victim, a ruling which precluded her from offering evidence of the victim’s dangerous character and prior threats against the accused.

In State v. Green, 335 So.2d 430 (La.1976), this court stated:

“Evidence of the victim’s dangerous character or threats against the accused supports a plea of self-defense because it is relevant to show that the victim was the aggressor and because it is relevant to show that defendant’s apprehension was reasonable.” 335 So.2d at 433.

Here, there is no doubt that the victim was the aggressor. As stated above, the primary relevance of the evidence lay in its tendency to show that defendant acted from reasonable fear, rather than from anger or on the basis of an unfounded belief that her sister meant to inflict serious injury-

Upon reconsideration, we reject the view expressed on original hearing that defendant was not prejudiced by the trial court’s clearly erroneous ruling. The only eyewitness, who was the brother of both the victim and the accused, was prevented from testifying as to the details and nature of the victim’s threats directed toward defendant and of threats made by the victim toward others in defendant’s presence, all of which allegedly occurred immediately prior to the killing. It is inappropriate to speculate at this point as to the specific nature of the testimony which the brother would have given or as to its impact on the jury’s critical assessment of the reasonableness of defendant’s apprehension of serious harm. Without a complete recitation of the evidence which would have been presented, it is impossible to conclude that the trial court’s error was harmless beyond a reasonable doubt. C.Cr.P. Art. 921. See State v. Gibson, 391 So.2d 421 (La.1980).

Therefore, defendant’s conviction and sentence are reversed, and the matter is remanded for a new trial.

DIXON, Chief Justice,

dissenting.

I respectfully dissent from the remand to permit the state to make a better case. The uniform and consistent rule in this state is that the burden of proof is on the prosecution to prove beyond a reasonable doubt that the homicide was not committed in self-defense, when that issue is raised. I found no evidence that the killing was not in self-defense. The constitutional provision against double jeopardy is violated by remanding for a new trial.

      Judges Wallace A. Edwards, Remy Chiasson and Elmo E. Lear of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . If that reason had been stated as the basis for sustaining the prosecutor’s objection, defense counsel would have had an opportunity to lay a foundation showing defendant’s knowledge.

      . The decision on original hearing thoroughly and carefully discussed R.S. 15:482, and concluded that the victim’s conduct toward the defendant immediately prior to the killing presented the trial court with “appreciable evidence” of an overt act, from which defendant “could have reasonably believed that she was in imminent danger of death or great bodily harm”. 419 So.2d at 427.

      . As discussed on original hearing, testimony regarding this conduct by the victim constituted “appreciable evidence” of an “overt act” or “hostile demonstration”.

      . This was, of course, not dispositive of the issue of self defense, since it is the reasonableness of apprehension, and not the actuality of danger, which determines the question of self-defense under R.S. 14:20.

      . Thus, we reject defendant’s contention that she must be discharged because the evidence was insufficient for a rational juror to conclude beyond a reasonable doubt that she had not acted in self-defense. State v. Patterson, 295 So.2d 792 (La.1974).
      The evidence would have also supported a jury’s determination that defendant (even if not justified in killing under R.S. 14:20) acted under a “provocation sufficient to deprive an average person of his self-control and cool reflection” and was thus guilty only of manslaughter. R.S. 14:31.

      . The state did not claim defendant was the aggressor and was therefore precluded from relying on self-defense. R.S. 14:21.

      . Whether particular evidence was (or was not) properly admissible is not at issue here. The trial court’s basis for exclusion was its erroneous ruling on the hostile demonstration. Thus, defendant was precluded from offering whatever properly admissible evidence could have been offered through the testimony of the witness.

      . The burden of proof falls upon the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Patterson, above.