text:
    THE FLORIDA BAR, Complainant, v. John ORMAN, Respondent.
    No. 60131.
    Supreme Court of Florida.
    Jan. 21, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Roberta J. Fox, Asst. Staff Counsel and David J. Kadyk, Tampa, of The Florida Bar, for complainant.
    Allan Converse Watkins, Tampa, for respondent.
   PER CURIAM.

This disciplinary proceeding against John Orman is before us on complaint of The Florida Bar and report of the referee. No review is sought by either the Bar or respondent. Orman admitted each of the five counts of the complaint through an unconditional guilty plea. The referee found him guilty as charged and recommends that Or-man receive an eighteen months’ suspension and that he be required to make restitution to several named clients.

Orman accepted a retainer of $740 from a client who desired to obtain a patent for his invention, but Orman failed to file the patent after continually promising the client that he would do so by a certain date. Because of Orman’s lengthy delay in handling the matter, the client requested return of his files and money. Orman failed to return either the files or money. A year after the client’s request for the filing of the patent, Orman had filed nothing concerning his client’s patent application. Or-man also agreed to represent another client in a possible copyright infringement and received a $360 legal fee. He notified the client by letter several months later that a settlement had been reached, but he had no subsequent communication with this client. Orman received a settlement check on his client’s behalf in the amount of $500, made payable to Orman, along with a General Release. He caused this cheek to be cashed, forwarded no portion of the settlement to his client, and failed to send the General Release to his client. Further, Orman falsely reported to the Supreme Court of Florida in a petition for reinstatement that there were no disciplinary matters pending against him when he knew or should have known that there were three disciplinary matters pending against him. Due to Or-man’s inaction in another case where his client was seeking two United States patents, the patent applications were abandoned by the Patent and Trademark office. Orman knew or should have known that his inaction would result in this abandonment. Moreover, at no time did he advise his client of the abandonment of the patent applications, and, in fact, he represented to his client on several occasions that the patent applications were alive, well, and moving forward to eventual issue. Finally, he delayed filing a patent application of another of his clients for approximately nine months, which delay was not in the best interest or with the consent of his client. Orman advised this client that she could manufacture the item and label it “patent pending” although he knew that the patent application had not been filed.

The referee recommends and we agree that Orman be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1 — 102(A)(4), (5), and (6), 6-101(A)(2) and (3), 7-101(A)(l), (2), and (3), and 9-102(B)(4) and Florida Bar Integration Rule, article XI, Rule 11.-02(4).

During the hearing before the referee, The Florida Bar requested that the referee recommend an eighteen months’ suspension plus restitution on the various counts as alleged in the complaint. We adopt the referee’s recommendation that John Orman be suspended from the practice of law for eighteen months and that he make restitution to Dr. Guerriere of $740, to Rutenberg Homes of $500, and to Mr. and Mrs. Gonzalez of $800.

Accordingly, John Orman is hereby suspended from the practice of law in Florida for eighteen months and thereafter until he shall prove his rehabilitation as required by Florida Bar Integration Rule, article XI, Rule 11.10(4). He is also ordered to make restitution to Dr. Guerriere, Rutenberg Homes and Mr. and Mrs. Gonzalez. This suspension shall be effective February 22, 1982, thereby giving Orman thirty days to close out his practice and to take necessary steps to protect his clients. It is ordered that Orman shall not accept any new business. Costs of these proceedings are assessed against respondent in the amount of $489.75.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.

      . DR 1-102 provides in pertinent part:
      (A) A lawyer shall not:

      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . DR 6-101 provides in pertinent part:
      (A) A lawyer shall not:

      (2) Handle a legal matter without preparation adequate in the circumstances.
      (3) Neglect a legal matter entrusted to him.

      . DR 7-101 provides in pertinent part:
      (A) A lawyer shall not intentionally:
      (1)Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
      (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
      (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

      . DR 9-102 provides in pertinent part:

      (B) A lawyer shall:

      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

      . Rule 11.02(4) provides trust accounting procedures for attorneys.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Ricki C. LeFAVE, Respondent.
    No. 60277.
    Supreme Court of Florida.
    Jan. 21, 1982.
    John F. Harkness, Jr., Executive Director; Stanley A. Spring, Staff Counsel and John A. Weiss, Bar Counsel, Tallahassee, and Robert P. Cates, Chairman, Eighth Judicial Circuit Grievance Committee, Gainesville, of The Florida Bar, for complainant.
    Ricki C. LeFave, in pro. per.
   PER CURIAM.

The Florida Bar charged LeFave with violating Disciplinary Rules 7-110(B) and 7-104(A)(l). After a hearing, the referee found that LeFave had improperly communicated with a judge regarding the merits of a cause without notice to opposing counsel and, in the same cause, had communicated with a party without the consent of that party’s attorney. The referee recommended that LeFave be given a public reprimand. Neither party has appealed the referee’s report. We approve the findings and hereby reprimand Ricki C. LeFave for these violations. Publication of this order in the Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $1,120.01 are hereby taxed against the respondent.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


author: ALDERMAN, Justice.

text:
    PUBLIC GAS COMPANY, Petitioner, v. WEATHERHEAD COMPANY, Respondent. Salvatore COLETTI and Tonya Coletti, his wife, Salvatore L. Coletti and Tonya Coletti, as next friends of Christine Coletti, a minor, Sea Horse Motel, Inc., and Public Gas Company, Petitioners, v. WEATHERHEAD COMPANY, Respondent.
    Nos. 60395, 60409.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Michael K. Wilensky of Conroy & Sim-berg, Hollywood, for Public Gas Co. and Steven M. Weinger of Kurzban & Kurzban, Miami, for Salvatore Coletti.
    Claudia B. Greenberg and Joseph H. Lowe of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for The Weath-erhead Co., respondent.
   ALDERMAN, Justice.

The District Court of Appeal, Third District, held in Weatherhead Co. v. Coletti, 392 So.2d 1342 (Fla. 3d DCA 1980), that a notice of appearance merely noticing the appearance of counsel representing Weath-erhead Company, the defendant below, did not waive Weatherhead’s objection to jurisdiction over its person. The district court acknowledges that its decision conflicts with decisions from the other district courts of appeal in this state.

Weatherhead Company, a foreign corporation, was joined as a defendant in three consolidated suits to recover damages for personal injuries and property damage caused by the explosion of a liquid petroleum tank maintained and serviced by petitioner Public Gas Company, also defendant below. Weatherhead Company was also named as a third-party defendant by Public Gas Company in a third-party complaint for contribution and indemnity. The amended complaints and the third-party complaint alleged that Weatherhead negligently manufactured a multi-valve assembly which was incorporated into a liquid petroleum storage tank which was sold to Public Gas Company, that this tank was installed at the Sea Horse Motel, and that it was later involved in a gas explosion. Personal service was attempted on Weatherhead in Cleveland, Ohio, under section 48.-193(l)(f)(2), Florida Statutes (1979). Prior to filing a motion to dismiss alleging, among other things, absence of jurisdiction over its person, Weatherhead’s counsel filed a “notice of appearance.” The trial court denied the motion to dismiss on the basis that Weatherhead’s objection to jurisdiction over the person was waived by the filing of the notice of appearance which the court found to be a general appearance.

The district court reversed and held that the notice of appearance had no effect on Weatherhead’s ability to raise the claim that it was not subject to the jurisdiction of the court. It reasoned:

There is no basis in the rules and no reason in policy for a determination that the mere filing of an entirely neutral and innocuous piece of paper, which indicates no acknowledgment of the court’s authority, contains no request for the assistance of its process, and, most important, reflects no submission to its jurisdiction should nevertheless be given just that effect. Such a conclusion represents, we think, no less than the apotheosis of a meaningless technicality. It cannot be accepted in a judicial era which requires that, as far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions.

Weatherhead Co. v. Coletti, 392 So.2d at 1344 (footnote omitted). In view of this holding, the district court proceeded to determine the merits of the motion to dismiss and held that the “personal” service was invalid because (1) the general and conclu-sory jurisdictional allegations in the amended complaints and the third-party complaint were entirely insufficient and (2) the product manufactured by Weatherhead was made and distributed in the 1950s, well before the 1970 effective date of the original statutory predecessor of section 48.193.

We agree with the holding of the district court that the filing of a “notice of appearance” by Weatherhead’s counsel did not waive its right to claim lack of jurisdiction over its person, and we approve the district court’s rationale in reaching this decision. To the extent that the prior decisions of the other district courts are in conflict, they are disapproved. We further approve the district court’s remand to the trial court with directions to grant the motion to dismiss on the basis of lack of jurisdiction without prejudice to any further attempt by the petitioners to perfect service on Weatherhead under alternative statutory procedures.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

      . The district court stated:
      [B]y doing so, we bring ourselves into direct conflict with decisions of each of our sibling courts of appeal. Fulmer v. Northern Central Bank, 386 So.2d 856 (Fla. 2d DCA 1980); Marine Distributors v. Kelly [374 So.2d 592 (Fla. 5th DCA 1979)] supra; Hotel and Restaurant Employees Union v. Lake Buena Vista Communities, Inc., 349 So.2d 1217 (Fla. 4th DCA 1977); Viator v. Morgan Construction Co., 344 So.2d 657 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 173 (Fla.1977); Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So.2d 408 (Fla.1977)...
      392 So.2d at 1344-45.


text:
    THE FLORIDA BAR, Complainant, v. John Errol LEE, Respondent.
    No. 60526.
    Supreme Court of Florida.
    Jan. 21, 1982.

      John F. Harkness, Jr., Executive Director; Stanley A. Spring, Staff Counsel and James P. Hollaway, Deputy Staff Counsel, Tallahassee, and Robert D. Rosen-bloom, Asst. Staff Counsel, Miami, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on the complaint of the Florida Bar, the report of a referee, and the petition of the Florida Bar for review. Art. V, § 15, Fla.Const.; Fla.Bar Integr. R., art. XI, Rule 11.09.

The respondent neither appeared at the referee’s hearing, answered the Bar’s complaint, nor responded to the petition for review. We are satisfied he received proper notice, however.

The complaint was in three counts. As to the first, the referee found respondent undertook to represent a decedent’s estate. He received funds from the sale of an asset of the estate. In respondent’s trust account the funds were used to meet expenses unrelated to the estate and were not restored. Respondent closed his office and left Florida without advising the personal representative of the estate, without withdrawing as attorney for the estate, and without resigning as resident agent for the estate. He never completed the administration of the estate. The referee found that respondent neglected a legal matter entrusted to him, in violation of Disciplinary Rule 6-101(A)(3); failed to carry out a contract for professional services, in violation of Disciplinary Rule 7-101(A)(2); and applied money entrusted to him to an unauthorized purpose, in violation of Integration Rule, article XI, Rule 11.02(4).

Count two also involved an estate. The referee found that respondent undertook representation and was paid a fee of $350.00. After filing the petition for administration, the respondent performed no further services. He closed his office and left the state without notifying the personal representative. The referee found neglect of an entrusted legal matter, in violation of Disciplinary Rule 6-101(A)(3), and failure to carry out a contract for professional services in violation of Disciplinary Rule 7 — 101(A)(2).

With regard to count three, the referee found that respondent undertook to represent a corporation in pursuing a monetary claim against a bank. The client paid $500 as a portion of an agreed fee. Respondent filed a legal action which was dismissed with an allowance of ten days in which to file an amended complaint. Respondent failed to file an amended complaint and the action was dismissed with prejudice. He failed to advise the client of his withdrawal or the necessity to file an amended complaint. Nor did he return documents the client would need to avoid dismissal with prejudice. Although not finding that the dismissal with prejudice barred the actual claim, the referee found that respondent handled a legal matter without preparation in violation of Disciplinary Rule 6— 101(A)(2); neglected a legal matter entrusted to him in violation of Disciplinary Rule 6--101(A)(3); failed to carry out a contract for services in violation of Disciplinary Rule 7-101(A)(2); and failed to notify the client and deliver papers to which the client was entitled in violation of Disciplinary Rule 2-110(A)(2).

We adopt the factual findings of the referee. The referee recommended that respondent be suspended for one year and until he proves rehabilitation and pays restitution and costs. The Bar’s petition for review points out that after the referee’s report was filed, respondent was disbarred in an unrelated disciplinary proceeding. The Florida Bar v. Lee, 396 So.2d 169 (Fla.1981). We therefore extend from three to four years the period respondent must wait from the date of disbarment before seeking reinstatement. Fla.Bar Integr. R., art. XI, Rule 11.10(5). The recommended condition of restitution of amounts found due by the referee is approved as a prerequisite to reinstatement. The costs of this proceeding are assessed against the respondent in the amount of $755.20.

It is so ordered.

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


text:
    Diana DOUGLAS, Petitioner, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, Respondent.
    No. 60884.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Stephen A. Smith of Smith & Smith, Lake City, for petitioner.
    John I. Todd, Jr., Jacksonville, for respondent.
   PER CURIAM.

This is a petition to review a decision of the First District Court of Appeal, reported as Douglas v. Iowa National Mutual Insurance Co., 400 So.2d 187 (Fla. 1st DCA 1981), in which that court certified its opinion to be in direct conflict with State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), and American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla.3d DCA 1976). We accepted jurisdiction in accordance with article V, section 3(b)(4), Florida Constitution.

This Court, subsequent to those decisions, resolved the conflict in Hartford Accident & Indemnity Co. v. Lackore, 408 So.2d 1040 (Fla.1982), holding that an uninsured motorist carrier may not automatically set off from its uninsured motorist coverage the amount of personal injury protection and medical payment benefits available to the insured but can set off benefits available to the insured which would reimburse him for the same damages. This holding is contrary to the district court’s decision in the instant case. We therefore disappove the district court’s decision and remand for proceedings consistent with our decision in Lackore.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Alvin HELLER, Respondent.
    No. 61188.
    Supreme Court of Florida.
    Jan. 21, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Alvin Heller, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violation of Disciplinary Rule 2-102(C) of the Code of Professional Responsibility. We approve the Petition, and we hereby reprimand Respondent, Alvin Heller, for this violation. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $287.00 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. Stanford F. ABRAM, Respondent.
    No. 60729.
    Supreme Court of Florida.
    Jan. 21, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needleman, Branch Staff Counsel, Fort Lauderdale, of The Florida Bar, for petitioner.
    J. Leonard Fleet, Hollywood, for respondent.
   PER CURIAM.

The Florida Bar instituted proceedings charging respondent bar member Stanford F. Abram with seven counts of severe violations of the Code of Professional Responsibility Disciplinary Rules. See The Florida Bar v. Abram, No. 59,692 (Fla. Jan. 21, 1982) (complaint dismissed concurrently with this opinion). Respondent now petitions the Court pursuant to Florida Bar Integration Rule, article XI, rule 11.08(2) and (6), for leave to resign without leave to reapply for bar admission and has agreed in his petition to remain personally liable to his former clients for any trust money owing and to the Client’s Security Fund for any payment it may make to satisfy respondent’s trust fund obligations.

In view of respondent’s alleged conduct, we grant the petition to resign. Execution shall issue against respondent for the bar’s cost in both this proceeding and in case No. 59,692 in the amount of $15,067.96.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: BOYD, Justice.

text:
    Autley MOBLEY, Appellant, v. STATE of Florida, Appellee. David Leroy BROWN, Appellant, v. Louie L. WAINWRIGHT, etc., Appellee. Jerry STYLES, Appellant, v. STATE of Florida, Appellee.
    Nos. 59051, 59359 and 59725.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Jack O. Johnson, Public Defender and Douglas A. Lockwood, Asst. Public Defender, Bartow, Florida, for appellants.
    Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   BOYD, Justice.

We have before us three consolidated appeals resulting from a prison riot which occurred on the second floor of the Pinellas County jail on September 15, 1979. We have jurisdiction because the trial judge upheld the constitutionality of section 870.-03, Florida Statutes (1979). Art. V, § 3(b)(1), Fla.Const. (1972).

Autley Mobley, David Brown, Jerry Styles, and a few other inmates on the second floor of the Pinellas County jail planned an escape. Pursuant to this plan the two guards working on that floor, Kenneth Will and Joseph Sandville, were grabbed, tied up, and placed in one of the cells. Then the defendants and their cohorts began trying to pry some bars loose from a window and releasing all the other inmates. Joseph Ciarciaglino, a private attorney who had entered the second floor to visit a client, was also taken captive and placed with the two guards. Soon the inmates realized that their activities had been discovered and that the police had surrounded the prison. At this point bedlam broke loose. Some inmates ransacked and set fire to the chaplain’s office while others armed themselves with broken broom and mop handles. Mr. Ciarciaglino was taken to a window to negotiate for the prisoners and threats were made against the guards. Later some other inmates not involved in the attempted escape locked themselves and the two guards in another cell. Then the police stormed the floor, freed Ciarciaglino, and forced all the inmates into one cell. The whole ordeal lasted about three hours.

Mobley, Brown, and Styles were charged with rioting, attempted escape, and kidnapping. Mobley and Brown were each charged with three counts and Styles with two counts of kidnapping. Despite their objections their cases were consolidated for trial. Declaring section 870.03 constitutional, the trial judge denied their motions to dismiss the rioting portion of the information. The jury found each of them guilty of all the charges, and the trial judge sentenced each defendant to fifteen years for escape, five years for rioting, and twenty-five years for each count of kidnapping, with the sentences to run consecutively. The judge retained jurisdiction over the first third of each defendant’s sentence pursuant to section 947.16(3), Florida Statutes (1979).

Mobley timely filed a notice of appeal with this Court. Styles timely filed a notice of appeal with the District Court of Appeal, Second District, which later transferred the case to this Court. Brown’s notice of appeal filed with this Court was dismissed for being untimely filed, but he was allowed to file a belated appeal by petitioning for a writ of habeas corpus, pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Once all three appeals were properly before us, we consolidated them for purposes of this opinion.

Appellants raise several points on appeal. They argue that section 870.03 is unconstitutional; that the informations charging them with rioting were invalid for failure to state an essential element of the crime; that the court erred in imposing judgments and sentences for kidnapping because the kidnappings were incidental to the offense of attempted escape; that the court abused its discretion in limiting cross examination of a state’s witness; and that the court erred in retaining jurisdiction over one third of each of their sentences pursuant to section 947.16(3).

In addition appellant Styles raises two more points: whether there was sufficient independent proof of his involvement in the conspiracy to escape to justify the admission of hearsay testimony under the co-conspirator exception to the hearsay rule and whether there was sufficient evidence to support his convictions for kidnapping. Since we find no reversible errors, we affirm the convictions and sentences, but we remand these cases to the trial judge to explain why he retained jurisdiction over the first third of each appellant’s sentence.

Appellants argue that section 870.03 is unconstitutionally vague and that it violates their right to freedom of assembly. These arguments mimic the arguments found wanting in State v. Simpson, 347 So.2d 414 (Fla.1977), appeal dismissed, 434 U.S. 961, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), and State v. Beasley, 317 So.2d 750 (Fla.1975). In Beasley we upheld the constitutionality of section 870.01(2), Florida Statutes (1973), which prohibits riots, by construing the statute in terms of the common law definition of riots. Similarly, in Simpson we adopted the common law definition of unlawful assembly in construing section 870.02 so as to render it constitutional. We construed section 870.02 as prohibiting “(1) an assembly of three or more persons who, (2) having a common unlawful purpose, (3) assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace.” 347 So.2d at 415 (footnote omitted).

This definition also applies to section 870.03 which reads:

If any persons unlawfully assembled demolish, pull down or destroy, or begin to demolish, pull down or destroy, any dwelling house or other building, or any ship or vessel, each of them shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Since participating in an unlawful assembly is a misdemeanor, it is obvious that the purpose of this section is to provide a more severe punishment for those participants in unlawful assemblies who begin to destroy a building or ship. Because we construe this section to include the common law elements of unlawful assembly, we find that it is not unconstitutionally vague and that it does not violate the first amendment right to freedom of assembly. State v. Simpson.

Appellants next claim the court erred in not dismissing the rioting count of the information for its failure to allege the statutory elements and to specify the facts showing them. See State v. Simpson; State v. Beasley. An information should not be dismissed unless it “is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla.R.Crim.P. 3.140(o). In this case the informations charged that the appellants

while in the Pinellas County Jail did then and there unlawfully assemble with two or more persons and did demolish, pull down or destroy, or begin to demolish, pull down or destroy a building, to-wit: the Pinellas County Jail, 401 Markley Street, Clearwater, Pinellas County, Florida.

Unlike the informations in Simpson and Beasley, these informations did allege with sufficient precision and particularity the facts which constituted the crime. Appellants were neither misled nor embarrassed in the preparation of their defenses nor exposed to double jeopardy. Therefore the court did not err in denying their motions to dismiss the informations.

As their third point appellants claim that their kidnapping convictions should be reversed since their conduct in confining the guards and the attorney was merely incidental to their attempted escape. Appellants were convicted under Florida’s new kidnapping statute, section 787.01, Florida Statutes (1979), which has not yet been construed by this Court. Specifically, appellants were convicted under subsection 787.01(l)(a)2., which prohibits the unlawful confining of another person with the intent to commit or facilitate the commission of any felony. If construed literally this subsection would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery. Appellants cite three district court of appeal cases which have resolved this dilemma by construing this subsection not to include confinement that is inconsequential or inherent in the nature of the related felony. See Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980); See also Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980).

The prevalent view nationwide is that kidnapping statutes, regardless of their wording, do not apply to unlawful confinements or movements incidental to other felonies. Most courts have reasoned that the legislatures did not intend for the statutes to be literally applied. Some reasoned that a narrow construction of the statutes was necessary to prevent the abuse of prosecu-torial discretion. One court has suggested that a literal application of its kidnapping statute would be a violation of due process. Despite the uniform consensus that kidnapping statutes should not be applied to those confinements or movements of other persons which are merely incidental to the commission of another crime, there is a great discrepancy among the various courts as to when such confinements and movements become more than incidental.

Situations where prisoners have confined persons against their will with the intent of escaping from prison present their own special problems. The courts have not hesitated to uphold kidnapping convictions where a prisoner forces another person to accompany him off prison grounds, and where a prisoner confines someone after he has escaped from the prison. A problem arises when, during an escape attempt, a prisoner confines or moves another person within the prison walls. In such instances the courts have closely examined the facts to determine whether the confinement or movement was incidental to the escape or whether it took on an independent significance justifying a kidnapping conviction.

There have been two cases where the courts have reversed the kidnapping convictions on the basis that the confinement or movement of a prison guard was merely incidental to the escape. In State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973), the North Carolina Supreme Court, applying the common law of kidnapping, reversed the conviction of a person who drew a gun on a jailer, marched him back sixty-two feet, locked him in a jail cell, and then released other inmates. In People v. Fain, 18 Cal.App.3d 137, 95 Cal.Rptr. 562 (1971), a California Court of Appeal reversed the kidnapping conviction of an inmate who, along with five other inmates, held a knife on a guard, forced him to accompany them to the first floor of the prison, and then let him go when they reached the outside door. In applying the two-pronged test used by the California Supreme Court in construing California’s kidnapping statute, the court found that the movement of the officer was merely incidental to the escape and that it did not substantially increase the risk of harm to him.

In a similar case another California appellate court reversed the kidnapping conviction but for a slightly different reason. In People v. Gibbs, 12 Cal.App.3d 526, 90 Cal.Rptr. 866 (1970), two inmates forced a guard and two trusties into a jail cell but were apprehended before they could escape. The appellate court discussed at length the prison’s large size and stated that the victims were forced to walk the equivalent of two city blocks. It decided that whether such movement was merely incidental to the escape attempt and whether there was substantial increase in the amount of risk to the victims were questions of fact to be determined by the jury. Since the jury instructions were erroneous, the court modified the kidnapping convictions to the lesser included offense of false imprisonment.

The Supreme Court of Michigan also reversed the kidnapping conviction of an inmate because of an erroneous jury instruction. In People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), Adams and two other inmates pulled knives on a prison officer and forced him to accompany them to the prison hospital 1500 feet away. At the hospital they seized two guards, a prison doctor, and another inmate. They held their victims hostage while they discussed their grievances with the prison officials and a newspaper reporter. After five and a half hours they surrendered. The Supreme Court reversed the conviction for kidnapping since the jury was not instructed that the crime of kidnapping does not include movement that is incidental to another underlying lesser crime. In so holding the court stated that the jury if properly instructed could have found Adams guilty of kidnapping if his purpose was to use the victims as hostages to extort more favorable prison conditions even though the movement was incidental to that purpose.

There is now a definite trend toward adopting the suggestion in Adams that the “merely incidental” rule does not apply in situations where the purpose in confining or moving another person is to use that person as a hostage. In State v. Wooten, 135 N.J.Super. 6, 342 A.2d 549 (1975), an inmate was convicted of kidnapping a guard during the course of a riot. The court upheld the conviction, stating:

Defendant’s reliance on several recent cases which have held that an asportation and detention of a victim is not kidnapping where it is merely incidental to an underlying crime, e.g. robbery or rape, and does not substantially increase the risk of harm to the victim, is misplaced. Here, the underlying crime was kidnapping. Moreover, even those eases and the authorities which recommend the adoption of that rule recognize that the new rule they espouse has no application to situations — such as exist here — where the victim was held as a hostage. In such cases, any unlawful or forcible removal and detention will suffice.

135 N.J.Super. at 11-12, 342 A.2d at 552. The Superior Court’s decision was affirmed by an equally divided Supreme Court. State v. Wooten, 73 N.J. 317, 374 A.2d 1204 (1977).

The same result was reached in Kansas, which has a kidnapping statute similar to Florida’s. In State v. Dunn, 223 Kan. 545, 575 P.2d 530 (1978), the defendant and two other inmates at a reformatory walked into an instructor’s office and held him and his secretary hostage for five hours during which time they made demands and threatened to kill the victims. The information charged the defendant with confining the two employees with the intent to hold them hostage and with the intent to facilitate the commission of a crime. The Supreme Court upheld the conviction, finding that the evidence was sufficient to establish that the two victims were confined with the intent to hold them as hostages and with the intent to facilitate the commission of the crime of aggravated escape. Implicit in the court’s decision is the holding that the confining of the two victims was not slight, inconsequential, or merely incidental to the crime of aggravated escape.

By the same reasoning appellants’ convictions for kidnapping should be affirmed. They acted in concert with other inmates in confining the guards and the attorney with the intent to escape. This confinement was not incidental to the attempted escape once they began using them as hostages and threatening physical harm. Although appellants were not charged with confining the victims with the intent of using them as hostages, evidence that they did use them as hostages is relevant and sufficient proof that the kidnappings were not incidental to the attempted escape. The evidence shows that the confinement of the victims was significantly independent of the crime of escape and that it substantially increased the risk of harm to the victims.

Appellants’ fourth point on appeal is that the trial court erred in limiting one of the defense counsel’s cross examination of a state’s witness, Charles Bargman. The defense counsel was trying to impeach Barg-man who was involved in the prison riot. Bargman had already testified that he had pled nolo contendere to charges of kidnapping, riot, and escape and that he understood that he would get five to fifteen years if he cooperated with the state. Defense counsel asked him what his attorney told him he would get if he did not cooperate. When the state objected to the defense’s inquiring about privileged communications, the court insisted that the attorney-client privilege remain inviolate. The defense counsel stated that he believed the witness may have waived his privilege and asked to proffer some other issues.

In the jury’s absence Bargman testified that he had a conversation with his lawyer in the holding cell at the jail. When asked if his attorney told him that if he did not cooperate he would get in excess of thirty years he answered, “Something like that.” The court then explained to Bargman the attorney-client privilege, and Bargman elected not to disclose the content of any conversations he had with his attorney. During further proffered examination Bargman testified that the conversation he had with his attorney was strictly business and that he intended it to be confidential. However, he conceded that he knew his conversation could be overheard by another inmate in the holding cell.

Appellants argue that the attorney-client privilege does not apply because the communication was made in the presence of a third person and that even if it does apply, its invocation in this situation deprives appellants of their sixth amendment right to confront their accusers. The attorney-client privilege has recently been codified as part of Florida’s new evidence code. See § 90.502, Fla.Stat. (1979). It codifies the common law doctrine that the privilege attaches only to confidential communications not intended to be disclosed to third persons who are not furthering the rendition of legal services. § 90.502(l)(c), Fla.Stat. (1979). Whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff’d, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Thus in this case Bargman’s admission that he knew the conversation with his lawyer was being overheard belies his assertion that he intended the conversation to be confidential. There was no evidence that he made any attempt to keep from being overheard. Indeed he admitted that he did not tell the other inmate that the conversation was private nor ask him not to listen. We realize that an inmate’s control over his environment is limited and that an inmate cannot decide whether other persons will be present when he has the opportunity to talk with his attorney. However, this jail had a special, separate room equipped with telephones through which visitors could talk to inmates in private. In the absence of any evidence that Bargman was purposely prevented from conferring with his attorney in private, we find he was capable of preventing others from overhearing his conversation with his lawyer. His failure to do so precludes him from asserting the attorney-client privilege. Therefore, the court had no basis for limiting appellants’ sixth amendment right to confront their accusers. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

However, we find the trial court’s limitation on appellants’ cross examination was harmless error. Bargman was not the state’s key witness; much of his testimony was corroborated by other witnesses. Furthermore, the jury was apprised of Barg-man’s criminal status and knew that he was yet to be sentenced for his part in the prison riot. Since there was other evidence establishing Bargman’s interest, appellants have failed to show how they have been harmed. Accord, Anglin v. State, 28 Md. App. 150, 344 A.2d 130 (Ct.Spec.App.1973).

Appellants’ fifth point on appeal is that the trial court erred in retaining jurisdiction over the first third of each of their sentences. They argue that attempted escape and rioting do not come under section 947.16(3), Florida Statutes (1979), and that the judge failed to justify his retention of jurisdiction with individual particularity as required by subsection 947.16(3)(a), Florida Statutes (1979). We disagree with the first argument but agree with the second. Section 947.16(3) authorizes a judge to retain jurisdiction over the first third of a defendant’s sentence for certain enumerated crimes including “any felony involving . . . the use of intentional violence.” Here appellants used intentional violence in committing the felonies of rioting and attempted escape. As for the second argument, the trial judge did not make any findings justifying his retention of jurisdiction. Therefore we vacate that portion of the judgment and sentence and remand these cases so that he may make such findings part of the record as required by section 947.-16(3)(a). See Hicks v. State, 388 So.2d 357 (Fla. 2d DCA 1980); Tompkins v. State, 386 So.2d 597 (Fla. 5th DCA 1980).

Finally, we address the two points raised solely by appellant Styles. We have reviewed the entire record and we find that there is independent proof of his involvement in the conspiracy to escape justifying the admission of the out-of-court statements made by his co-conspirators under section 90.803(18)(e), Florida Statutes (1979). The independent proof consisted of testimony that Styles was one of the few inmates that worked on trying to pry the bars loose from the window; that at times he stood guard at the cell door, allowing only a few chosen inmates access to the window they were trying to escape from; that he was the one who told other inmates to bring Ciarciaglino in to negotiate; that he passed out broom and mop handles; and that when the police broke in he threatened to stab Ciarciaglino with the jail keys. All of this evidence proved that he was one of the key principals in the attempted escape and riot and is sufficient to support his convictions for kidnapping.

We therefore affirm the convictions of all three appellants but remand these cases to the trial judge to state with individual particularity his reasons for retaining jurisdiction over the first third of each appellant’s sentence.

It is so ordered.

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

      .787.01 Kidnapping.—
      (l)(a) “Kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
      1. Hold for ransom or reward or as a shield or hostage.
      2. Commit or facilitate commission of any felony.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.
      (b) Confinement of a child under the age of 13 is against his will within the meaning of subsection (1) if such confinement is without the consent of his parent or legal guardian.
      (2) Whoever kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.-084.

      . See, e.g., People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897 (1969); People v. Bridges, 612 P.2d 1110 (Colo.1980); Tyre v.

        State, 412 A.2d 326 (Del.1980); State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980); State v. Estes, 418 A.2d 1108 (Me.1980); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); State v. McEwan, 265 N.W.2d 818 (Minn.1978); Cuevas v. State, 338 So.2d 1236 (Miss.1976); Wright v. State, 581 P.2d 442 (Nev.1978); People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967); State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977); State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979); State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980); State v. Curtis, 298 N.W.2d 807 (S.D.1980); see also Model Penal Code, § 212.1 (1974).
      Kentucky has a statute which specifically exempts from the kidnapping statute any person who has committed “an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense ....” Ky.Rev.Stat. § 509.050 (1975). See Timmons v. Commonwealth, 555 S.W.2d 234 (Ky.1977). However, this statute does not apply when the interference of another’s liberty is incidental to an attempted escape. Wood v. Commonwealth, 567 S.W.2d 121 (Ky.1978).

      . See, e.g., People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897 (1969); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); Wright v. State, 581 P.2d 442 (Nev.1978); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965).

      . See, e.g., People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897, (1969); People v. Bridges, 612 P.2d 1110 (Colo.1980); State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977). The Minnesota Supreme Court has placed the onus of insuring that the state’s kidnapping statute is not used to impose unduly harsh penalties on the courts, the correctional authorities, and the prosecutors themselves. State v. Morris, 281 Minn. 119, 160 N.W.2d 715 (1968).

      . State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977). See also People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), where the Michigan Supreme Court narrowly construed Michigan’s kidnapping statute to avoid constitutional overbreadth.

      . Compare People v. Bridges, 612 P.2d 1110 (Colo.1980) (kidnapping conviction reversed where teacher was raped on school grounds) and State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979) (kidnapping conviction reversed where rape victim was forced from street to go down alley) with State v. Morris, 281 Minn. 119, 160 N.W.2d 715 (1968) (kidnapping conviction upheld where student was raped on campus) and Tyre v. State, 412 A.2d 326 (Del.1980) (kidnapping conviction upheld where rape victim was forced from public thoroughfare to partially hidden culvert). See generally Annot., 43 A.L.R.3d 699 (1972).

      . See Annot., 59 A.L.R.3d 1306 (1974).

      . See Nagy v. State, 386 N.E.2d 654 (Ind.1979); Brooks v. State, 236 So.2d 751 (Miss.1970).

      . See Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Cuevas v. State, 338 So.2d 1236 (Miss.1976).

      . In People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897 (1969), the California Supreme Court reversed defendants’ kidnapping convictions because the “brief movements which defendants ... compelled their victims to perform in furtherance of robbery were merely incidental to that crime and did not substantially increase the risk of harm otherwise present.” 71 Cal.2d at 1140, 459 P.2d at 238, 80 Cal.Rptr. at 910. From this statement other courts have inferred that California has a two-pronged test to determine whether a kidnapping has occurred independently of another crime. See People v. Bridges, 612 P.2d 1110 (Colo.1980); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973). Actually, there is no distinction between the two prongs. “[S]ub-stantial confinement, restraint or asportation not merely incidental to the commission of another crime would seem necessarily to involve some increased risk of mental or physical harm.” State v. Fulcher, 34 N.C.App. 233, 240, 237 S.E.2d 909, 914 (1977). Conversely, confinement or movement of a victim which substantially increases the risk of harm not normally present in the commission of a crime is not merely incidental to that crime.

      . The term hostage implies confining a person with the intent to hold that person as security for the performance or forbearance of some act by a third person. State v. Littlefield, 389 A.2d 16 (Me.1978); State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971); State v. Lee, 33 N.C.App. 162, 234 S.E.2d 482 (1977).

      . Kan.Stat.Ann. § 21-3420 (1974) provides:
      Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
      (a) For ransom, or as a shield or hostage; or
      (b) To facilitate flight or the commission of any crime; or
      (c) To inflict bodily injury or to terrorize the victim or another; or
      (d)To interfere with the performance of any governmental or political function.
      Kidnapping is a class B felony.

      . For a case with identical facts, but where the prisoners did not contest their kidnapping convictions, see State v. Beshaw, 136 Vt. 311, 388 A.2d 381 (1978).


text:
    THE FLORIDA BAR, Complainant, v. Frederick HOLLINGSWORTH, Respondent.
    No. 59722.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Harris K. Solomon, Bar Counsel and Jacquelyn Plasner Needelman, Branch Staff Counsel, Fort Lauderdale, and Henry P. Ruffalo, Chairman, 15th Judicial Circuit Grievance Committee, West Palm Beach, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding against Frederick Hollingsworth is before us on complaint of The Florida Bar and report of the referee. Neither the Bar nor Hollings-worth seek review of the referee’s findings and recommendations. Respondent is presently under suspension from the Bar for misconduct unrelated to the present matters. See The Florida Bar v. Hollingsworth, 376 So.2d 394 (Fla.1979).

We approve the referee’s findings and recommendation that Hollingsworth be disbarred for his cumulative misconduct. Hollingsworth is hereby disbarred from the practice of law in Florida. See Fla. Bar Integr. Rule, art. XI, Rule 11.09(3)(f). Costs are assessed against Hollingsworth in the amount of $958.61.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.


author: BOYD, Justice. SUNDBERG, C. J.,

text:
    ARAB TERMITE AND PEST CONTROL OF FLORIDA, INC., et al., Petitioners, v. Thelma JENKINS, Respondent.
    No. 59782.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Clifford L. Somers of Miller, McKendree & Somers, Tampa, and Michael A. Smith of Goza, Hall, Peacock, Peters & Smith, Clear-water, for Arab Termite and Pest Control of Florida, Inc.
    Robert M. Klein of -Stephens, Lynn, Cher-nay & Klein, Miami, for American Home Assurance Co.
    Julian Clarkson and Warren M. Goodrich of Holland & Knight, Tampa, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision in Jenkins v. Arab Termite & Pest Control of Florida, Inc., 388 So.2d 44 (Fla. 2d DCA 1980). The district court of appeal created express and direct conflict by misapplication of the rule announced in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We quash and remand.

Petitioner Arab Termite and Pest Control agreed to fumigate a house, the home of Merton Earle Jenkins and his wife Thelma Jenkins. Because petitioner used a different pesticide from that called for in the contract and because petitioner’s employees negligently aerated the house, Merton Earle Jenkins died within a few hours after re-entering his home. Thelma Jenkins brought this wrongful death action against the petitioner.

After trial the jury found $50,000 in compensatory damages and $125,000 in punitive damages. On petitioner’s motion, the court ordered a remittitur of $75,000 of the punitive damages award or a new trial if the remittitur be rejected by the plaintiff. The trial court concluded that the conduct shown by the evidence was not wanton or malicious enough to justify the amount of punitive damages awarded and that the amount was out of proper proportion to the defendant’s net worth.

The district court reversed, holding that the trial court had erred in finding the award excessive based on the degree of the defendant’s misconduct. The issue before us is whether the trial court had the authority to consider the degree of the defendant’s misconduct in relation to the amount of punitive damages found by the jury.

The district court concluded that in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), we held that if a legal basis for punitive damages exists, their assessment by the jury and the amount thereof are matters the judge may not disturb on the ground of degree of misconduct. The district court said:

Post- Wackenhut, there is only one permissible ground for a determination by a trial judge that a punitive damages award is excessive; that is, that the amount of the award bears no relation to the amount the defendant is able to pay and results in economic castigation. The trial judge in the case before us merged two factors in explaining his opinion that the punitive damages award was excessive — the degree of appellee’s misconduct and the ratio of the punitive damages award to appellee’s net worth. The degree of misconduct consideration was improper under the Wackenhut holding.

388 So.2d at 45 (footnote omitted). This statement represents an erroneous reading of Wackenhut.

In Wackenhut this Court adhered to the settled rule that a trial judge may not substitute its judgment for that of the jury on the matter of damages and may enter an order of remittitur or new trial only when the record affirmatively shows the jury’s verdict to be excessive or when the judge makes specific findings concluding that the jury was influenced by something outside the record. We then explained the application of the rule in a case of punitive damages, thus engendering the district court’s difficulty in the present case.

When claims for punitive damages are made, the respective provinces of the court and jury are well defined. The court is to decide at the close of evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (Fla.1936). A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression. Id. at 221. Once the court permits the issue of punitive damages to go to the jury, the jury has the discretion whether or not to award punitive damages and the amount which should be awarded. Punitive damages “are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression, or outrage found by the jury from the evidence.” (emphasis supplied) Id.

Wackenhut Corp. v. Canty, 359 So.2d at 435-36.

The Court went on to discuss three “unusual” situations in which punitive damages verdicts have been deemed excessive. The three situations listed were: (1) where the award bears no reasonable relation to the defendant’s ability to pay and results in economic castigation; (2) where the tort lacks the degree of malice or outrage to justify the amount of the verdict; and (3) where the punitive damages bear no reasonable relation to the compensatory damages awarded. Then we said:

It is clear to us that the trial judge in this case ignored the role of the jury because none of the foregoing unusual circumstances appear in the record. The award (2% of a net worth of 9.2 million dollars) is not economic castigation of Wackenhut. There was a legal basis for punitive damages being assessed, else the issue should not have been permitted by the judge to go before the jury. Likewise the trial court obviously concluded there was a legal basis for punitive damages by permitting $50,000 of the award to stand. As to the requirement that punitive damages bear a reasonable relationship to the compensatory damages, the trial court implicitly recognized such requirement in its order granting the new trial. Although it found the compensatory damages to be supported by the evidence a new trial on both compensatory and punitive damages was ordered when the remittitur was declined. Notwithstanding the application of such a condition by several District Court of Appeal decisions, e.g., Turner and Rodriguez, supra, this requirement has been repudiated recently by this Court in Lassitter v. Intern. Union of Op. Engin., 349 So.2d 622 (Fla.1976). For the reasons expressed in Lassitter, it is not required that punitive damages must bear some reasonable relationship to the actual damages awarded by the jury and the trial court erred in implicitly applying such a standard.

Id. at 436.

Thus the Court did not, as one of the dissenters charged, Wackenhut Corp. v. Canty, 359 So.2d at 441 (Smith, J., dissenting), commit review on the ground of degree of misconduct “to the rubbish heap.” We explicitly adhered to the rules developed in Laskey v. Smith, 239 So.2d 13 (1970), and Cloud v. Fallis, 110 So.2d 669 (Fla.1959). The specific ground of our decision was that no basis appeared in the record for concluding that the jury’s punitive damages award was excessive.

In Cloud v. Fallis, 110 So.2d 669 (Fla.1959), the Court held that a trial judge may grant a new trial in a civil case if he concludes that the verdict is against the manifest weight of the evidence. In Hodge v. Jacksonville Terminal Co., 234 So.2d 645 (Fla.1970), we held that setting aside a jury verdict requires more than a finding that the verdict is contrary to the evidence. The verdict must be manifestly against the weight of the evidence, or demonstrably the product of influence from outside the record.

Our Waekenhut opinion observed that Cloud and Hodge were applied together to the problem of remittitur in Laskey v. Smith, 239 So.2d 13 (1970). In that case we said:

A jury’s determination of damage is reviewable by the trial judge on precisely the same principles as govern his superintendence of determinations of liability. Mr. Justice Drew stated them clearly in Hodge v. Jacksonville Terminal Company, Fla., 234 So.2d 645, opinion filed April 22, 1970. The record must affirmatively show the impropriety of the verdict or there must be an independent determination by the trial judge that the jury was influenced by considerations outside the record.
In other words, the trial judge does not sit as a seventh juror with veto power. His setting aside a verdict must be supported by the record, as in Cloud v. Fallis, Fla.1959, 110 So.2d 669, or by findings reasonably amenable to judicial review. Not every verdict which raises a judicial eyebrow should shock the judicial conscience.
In its movement toward constancy of principle, the law must permit a reasonable latitude for inconstancy of result in the performance of juries. The trial judge’s review of that performance is likewise sustainable within a broad range provided that the record or findings of influence outside it support his determination.

Id. at 14.

We were right to disavow the rule that punitive damages must bear some reasonable relation to compensatory damages, Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976), because the amount of compensation for loss is an entirely separate matter from the amount of punitive damages. Punitive damages apply to wrongdoing not covered by the criminal law, where the private injuries inflicted partake of public wrongs. They are to be measured by the enormity of the offense, entirely aside from the measure of compensation for the injured plaintiff. Ingram v. Pettit, 340 So.2d 922 (Fla.1976); Campbell v. Government Employees Insurance Co., 306 So.2d 525 (Fla.1974); Florida Railway & Navigation Co. v. Webster, 25 Fla. 394, 5 So. 714 (1889).

It is still proper, however (even post-Wackenhut), to issue an order for new trial or remittitur when the manifest weight of the evidence shows that the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. Either this finding must be affirmatively supported by the record or the judge must find that the jury, was influenced by matters outside the record.

The third situation mentioned above as a ground for setting aside the jury’s verdict, that the award is out of proportion to the defendant’s net worth, is of course a proper consideration. Since the defendant’s financial position is proper for the jury to consider in imposing punitive damages, Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Jones v. Greeley, 25 Fla. 629, 6 So. 448 (1889), it must be considered along with the malice of the defendant’s conduct in ruling on the question whether the jury’s assessment is excessive in light of the manifest weight of the evidence. Punitive damages should be painful enough to provide some retribution and deterrence, but should not be allowed to destroy the defendant.

We hold, therefore, that the trial court may consider the degree of the defendant’s misconduct in determining whether the amount of punitive damages is against the manifest weight of the evidence. Accord, Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979); Neal v. Farmers’ Insurance Exchange, 21 Cal.3d 910, 582 P.2d 980, 148 Cal.Rptr. 389 (1978); Frick v. Abell, 602 P.2d 852 (Colo.1979); Kang v. Harrington, 59 Haw. 652, 587 P.2d 285 (1978); Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979); Wilson v. City of Eagan, 297 N.W.2d 146 (Minn.1980); Fahrenberg v. Tengel, 96 Wis.2d 211, 291 N.W.2d 516 (1980).

The district court concluded that the trial court was without power to consider whether the amount of punitive damages found by the jury was out of proportion to the degree of malice or outrage in the defendant’s conduct. Therefore the district court did not determine whether the trial court’s decision was affirmatively supported by the record (i.e., the manifest weight of the evidence) or by the findings in the judge’s order. The parties have not briefed the issue here. We therefore remand the case to the district court to provide the appropriate appellate review.

The decision of the district court is quashed and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J.,

dissents: Because I believe the district court correctly interpreted and applied our decision in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), I find no conflict of decision and, accordingly, would dismiss this application for discretionary review.

ADKINS, J., dissents but concurs with SUNDBERG, C. J.


author: OVERTON, Justice.

text:
    STATE of Florida ex rel. William John REICHLE, Relator, v. William F. EDWARDS, Judge of the Circuit Court of the Fifth Judicial Circuit in and for Citrus County, Florida, Respondent.
    No. 60042.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Ben Daniel, Jr., Ocala, for relator.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   OVERTON, Justice.

This is a petition for writ of prohibition asserting that this Court had no jurisdiction to impanel the third statewide grand jury, and, consequently, any indictments it returned were void. We find we had proper authority to impanel the statewide grand jury and decline to issue the writ.

The legislature established a statewide grand jury by enacting sections 905.31 and 905.40, Florida Statutes (1977). Relator contends that under article V, section 3, Florida Constitution (1972), this Court has no jurisdiction to act in impaneling a grand jury. Relator asserts that the only possibility for jurisdiction to impanel a statewide grand jury lies in the circuit court under the jurisdictional provisions of article V, section 5.

We agree the judicial review jurisdiction of the Supreme Court is limited by the provisions of section 3 of article V as it existed under the 1972 constitutional provision and as amended effective April 1,1980. We find, however, that this Court is not exercising judicial review as delineated by section 3 in impaneling a statewide grand jury. As expressed in In re Advisory Opinion to the Governor, 290 So.2d 473 (Fla.1974), this Court’s responsibility in impaneling a statewide grand jury is “ministerial in nature, and the decision to impanel a statewide grand jury would involve no judgment relative to any potential defendants or any acts alleged to have occurred.”

Once a grand jury process is established by the legislature, the implementation becomes a judicial administrative responsibility since the grand jury’s operation is within the judicial branch. Clearly, in implementing this statute, we are not acting in a judicial review function but rather in an administrative, supervisory capacity. See Art. V, § 2, Fla.Const. We have, in fact, implemented this grand jury process by adoption of Rule of Judicial Administration 2.100.

The legislature has found it necessary to provide for a statewide grand jury implemented through this Court. This provision is no different from other enactments establishing and controlling the grand jury in each county of this state. The petition for writ of prohibition is denied.

It is so ordered.

SUNDBERG, C. J., and BOYD and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      905.31 Short Title. — Sections 905.31-905.40 shall be known and may be cited as the “Statewide Grand Jury Act.”
      905.40 Payment of costs and expenses.— The costs and expenses incurred by the statewide grand jury in the performance of its functions and duties shall be paid by the state out of funds appropriated to the circuit courts.


author: OVERTON, Justice. BOYD, Justice,

text:
    Brigette RABIDEAU and Monika F. Jennings, et al., Petitioners, v. STATE of Florida and Oscar Sambrine, Respondents.
    No. 60241.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Brumer, Cohen, Logan & Kandell, Miami, for petitioners.
    Ronald W. Brooks of Brooks, Callahan & Phillips, Tallahassee, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported at 391 So.2d 283 (Fla. 1st DCA 1980). It concerns the vicarious responsibility of the state for state-owned vehicles under the waiver of sovereign immunity provisions of section 768.28, Florida Statutes (1979). The district court held that the state was- not liable under the section for injuries caused by a state employee operating a state vehicle when the employee was acting outside the scope of his employment. After so holding, the district court certified the following question to this Court:

WHETHER SECTION 768.28, FLORIDA STATUTES, MAKES THE DANGEROUS INSTRUMENTALITY DOCTRINE APPLICABLE TO THE STATE OF FLORIDA.

We answer the question in the negative, finding there was clearly no legislative intent to hold the state vicariously liable by the enactment of section 768.28.

The relevant facts reflect that on April 7, 1976, Oscar Sambrine, an investigator for the Secretary of State’s Office, was driving a state-owned vehicle and struck and killed Raymond Rabideau and Larry Jennings. Sambrine had possession of the vehicle twenty-four hours a day, and, on the date of the accident, ceased working at approximately 5:30 p. m. He then drove to a bar where he consumed six or seven drinks before leaving at 9:30 p. m. On his way home, he hit and killed the decedents as they were repairing their motorcycle on the roadside.

The decedents’ survivors filed this action for wrongful death. On the state’s motion, the trial court entered summary judgment in favor of the state on the grounds that Sambrine was not acting within the scope of his employment at the time of the accident. The district court affirmed.

Petitioners contend that section 768.28 does render the state liable because they assert Sambrine was acting within the scope of his employment at the time of the accident, given that he had twenty-four-hour-a-day custody of the state vehicle. Petitioners further assert that, even if Sambrine was acting outside the scope of his employment at the time of the accident, section 768.28(5) waives the state’s immunity because it provides “[t]he state . . . shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.” In petitioners’ view, the legislature intended the state to be responsible under subsection (5) for all tort claims not included in subsection (1). Finally, as a policy matter, petitioners assert that it is totally inconsistent with Florida’s dangerous instrumentality doctrine for the state to put state-owned vehicles on state roadways for twenty-four hours a day, seven days a week, and not be responsible for damages and injuries caused by the vehicles.

We disagree with petitioners’ contentions, and approve fully the instant district court opinion. Any waiver of sovereign immunity must be clear and unequivocal. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). Had the legislature intended to accept vicarious responsibility for the operation of state vehicles while in use for nonstate purposes, we believe it would have expressly so provided. We hold, therefore, that twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee’s scope of employment.

We further note, as did the district court, that this decision is in accordance with the federal court’s construction of section 768.-28’s counterpart in the Federal Torts Claim Act. See, e.g., LeFevere v. United States, 362 F.2d 352 (5th Cir. 1966); Cropper v. United States, 81 F.Supp. 81 (N.D.Fla.1948).

The decision of the district court is affirmed and its opinion approved in its entirety.

It is so ordered.

SUNDBERG, C. J., and ALDERMAN and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion, in which ADKINS, J., concurs.

BOYD, Justice,

dissenting.

Section 768.28(5), Florida Statutes (1979), provides: “The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances .... ” I dissent from the majority opinion because I believe the quoted language of the sovereign immunity waiver statute provides for liability in this case by reference to the doctrine of dangerous instru-mentalities as developed in Florida case law.

If this were a case of a tort claim against the state for injuries negligently or wrongfully caused by an employee, by means other than an automobile or other dangerous instrumentality, acting outside the scope of employment, then the majority’s disposition based on the language in section 768.28(1) would be correct. The dangerous instrumentality doctrine, however, operates independently from the doctrine of respondeat superior. Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). Similarly, section 768.-28(5) operates independently from the “scope of employment” language in section 768.28(1). By virtue of section 768.28(5), the state has placed itself on equal footing with other persons who exercise the privilege of operating automobiles on the public roads.

Moreover, this interpretation of section 768.28(5) is not inconsistent with section 768.28(1). The liability of an automobile owner under the dangerous instrumentality doctrine “grows out of the obligation of the owner to have the vehicle . . . properly operated when it is by his authority on the public highway.” Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 441, 74 So. 975, 978 (1917). It is not a kind of strict liability based on ownership, but is based on the owner’s capacity to protect the safety of the public by not relinquishing control of the vehicle to another. Compare Castillo v. Brickley, 363 So.2d 792 (Fla.1978), with Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959). Therefore an owner is liable in tort for injuries caused by his vehicle, not because of simple ownership, but because of the wrongful act of relinquishing control of a dangerous instrumentality without ensuring its safe operation.

Thus in this case there was wrongful conduct on the part of the driver’s superiors in entrusting a state vehicle to an employee for off-hours use. Such wrongful conduct of the superiors was surely committed within the scope of employment and section 768.28(1) is satisfied. It is a matter of convenience, and not necessity, for state agencies to allow employees off-duty custody of state vehicles. By doing so the state increases the likelihood of injuries and death caused by the negligent operation of the vehicles. The state should be liable for such negligent or wrongful conduct in the same manner and to the same extent as a private individual under like circumstances, and the legislature has clearly so indicated.

If the state were held liable in this case, the maximum amount of the judgment would be $100,000 by virtue of the limit imposed by section 768.28(5). Thus the survivors of each decedent would receive $50,-000, probably not even close to the full measure of their damages. We are not concerned here with who will bear the full economic loss but rather with whether the state should partially compensate the decedents’ survivors. Since the state could avoid future liability by not allowing employees the personal use of state cars, to hold the state liable here would not set a precedent that could unreasonably burden the public treasury or disrupt state government. Therefore the rationale of sovereign immunity does not apply to cases such as this. The legislature has recognized this fact by waiving it.

We should answer the certified question in the affirmative and hold the state liable.

ADKINS, J., concurs.


author: SUNDBERG, Chief Justice.

text:
    James M. BERNARD, Jr., by and through his mother, natural guardian and next friend, Roberta Bernard, and Roberta Bernard, individually, Petitioners, v. KEE MANUFACTURING COMPANY, INC., Respondent.
    No. 60390.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Larry Klein, and Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for petitioners.
    Sheldon J. Gensler, Sarasota, for respondent.
   SUNDBERG, Chief Justice.

The issue we confront in this case is whether the purchaser of the assets of a manufacturing firm which continues under the same trade name the general product line of the seller can be liable for a defective product manufactured by the seller, even though the traditional corporate law rule would impose no liability. We adhere to the traditional rule.

I.

Petitioners, the Bernards, brought a products liability claim against respondent Kee Manufacturing Company, Inc. (Kee, Inc.). They claimed that a lawn mower manufactured and sold in 1967 by Kee Manufacturing Company (Kee), the predecessor business to Kee, Inc., caused an injury in 1976 to James Bernard, Jr., who with his mother sought recovery based on negligence, implied warranty and strict liability. Kee, Inc. had incorporated in 1972 when it had acquired for cash the assets of Kee from the owner, Flechas J. Kee, who did business as Kee Manufacturing Company. These assets included the manufacturing plant, inventory, good will, and the right to use the name “Kee Manufacturing Company.” Kee, Inc., by the terms of this acquisition, had not assumed liabilities or obligations of its predecessor, Kee. The former owner of the business had no interest in the new company. Kee, Inc. used these assets to continue the manufacture of lawn mowers, maintaining the same factory personnel and using the trade name of Kee Mowers. The entire manufacturing process was effectively continued, but under a new owner and management. Kee, Inc. still provides replacement parts for the model of lawn mower involved here, though it has discontinued manufacturing the model. The brochure of Kee, Inc. states that it has been manufacturing lawn, mowers since 1948. The Bernards have also sought separate recovery from Flechas J. Kee, individually, and from the retailer who sold the lawn mower.

The trial court granted Kee, Inc.’s motion for summary judgment, and this was affirmed by the District Court of Appeal, Second District, which refused to consider the financial responsibility of the predecessor to determine potential liability of a successor company, creating conflict with Kinsler v. Rohm Tool Corp., 386 So.2d 1280 (Fla. 3d DCA 1980). Art. V, § 3(b)(3), Fla. Const. (1980).

II.

The vast majority of jurisdictions follow the traditional corporate law rule which does not impose the liabilities of the selling predecessor upon the buying successor company unless (1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor. See Sens v. Slavia, Inc., 304 So.2d 438 (Fla.1974); 15 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 7122, 7123 (rev. perm. ed. 1973 & Cum.Supp.1981); Note, Products Liability — Liability of Transferee for Defective Products Manufactured by Transferor, 30 Vand.L.Rev. 238, 243 (1977). The general corporate law rule applies to products liability. See Leannais v. Cincinnati, Inc., 565 F.2d 437 (7th Cir. 1977); 15 W. Fletcher, supra at § 7123 (Cum.Supp.1981).

Courts in a few jurisdictions have begun to extend products liability to the successor corporation in an effort to effectuate an acknowledged purpose of strict liability for defective products, that the costs of a defective product should be included in that product. A first series of cases, led by Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974), has expanded the continuity exception to the traditional rule by deleting a historical requirement of substantial identity of ownership. Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), followed Cyr in expanding this ex-eeption. A second line of cases, begun by Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977), developed a new exception to the general rule of a corporate successor’s non-liability, the product-line exception:

[A] party which acquires a manufacturing business and continues the output of its line of products . . . assumes strict tort liability for defects in units of the same product line previously manufactured and distributed by the entity from which the business was acquired.

Id. at 34, 136 Cal.Rptr. at 582, 560 P.2d at 11.

This rule has been adopted by only two other jurisdictions. Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981); Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981). The courts in these cases based justification of the product-line exception on (1) the lack of remedy for the plaintiff, (2) the successor’s ability to spread the risk through insurance by estimating risks in the previously manufactured product, and (3) the fairness of requiring the successor to assume the burdens as well as the benefits of the original manufacturer’s good will. Though these justifications have undeniable appeal, we find countervailing considerations more convincing.

III.

We choose not to join this vanguard of courts, due in part to the threat of economic annihilation that small businesses would face under such a rule of expanded liability. Because of their limited assets, small corporations would face financial destruction from imposition of liability for their predecessor’s products:

The economy as a whole suffers when small successor corporations lose such cases since corporate acquisitions are discouraged due to business planners’ fears of being held so liable. Furthermore, the marketability of on-going corporations is diminished, perhaps forcing the sellers into the undesirable process of liquidation proceedings. Currently, small manufacturing corporations comprise ninety percent of the nation’s manufacturing enterprises. If small manufacturing corporations liquidate rather than transfer ownership, the chances that the corporations will be replaced by other successful small corporations are decreased. As a result, there will be fewer small manufacturers and the larger more centralized manufacturers will increase their production to meet the demands of the marketplace. Greater centralization of business is adverse to the long held American notion that the small business represents independence, freedom and perseverance.

One court has dubbed these concerns “cas-sandrian.” But due to the recognized difficulty and high costs that a small business experiences in obtaining products liability insurance for defects in a predecessor’s product, we perceive the increased burden on small business as a very real threat, as real a threat as the Trojan Horse.

Although we do not consider that the legislature is alone suited to make the determination of whether successor corporate liability should be extended, we do perceive other legitimate policy considerations for refusing to expand such liability. Extending liability to the corporate successor is not consistent with at least one major premise of strict liability, which is to place responsibility for a defective product on the manufacturer who placed that product into commerce. The corporate successor has not created the risk, and only remotely benefits from the product. The successor has not invited usage of the product or implied its safety. Since the successor was never in a position to eliminate the risk, a major purpose of strict liability in modifying a manufacturer’s behavior is also lost. See Domine v. Fulton Iron Works, 76 Ill.App.3d 253, 32 Ill.Dec. 72, 395 N.E.2d 19 (1979); see also Tucker v. Paxson Machine Co., 645 F.2d 620 (8th Cir. 1981) (refuses to follow product-line exception because not well established); Leannais v. Cincinnati, Inc., 565 F.2d at 441 n.8 (refuses to expand corporate law rule).

For these reasons we adhere to the traditional corporate law rule, and approve the decision of the District Court of Appeal, Second District, in this case, other than its deference to the legislature. Bernard v. Kee Manufacturing Co., Inc., 394 So.2d 552 (Fla. 2d DCA 1981). On the other hand Kinsler v. Rohm Tool Corp., 386 So.2d 1230 (Fla. 3d DCA 1980), looked at the financial responsibility of the predecessor to determine the successor’s liability and thus expanded the corporate law rule. We disapprove that conflicting decision insofar as it is inconsistent with our opinion.

It is so ordered.

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

ADKINS, J., dissents.

      . See also Knapp v. North Am. Rockwell Corp., 506 F.2d 361 (3d Cir. 1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975) (expands de facto merger exception); Shannon v. Samuel Langston Co., 379 F.Supp. 797 (W.D.Mich.1974).

      . Note, Products Liability and Successor Corporations: Protecting the Product User and the Small Manufacturer Through Increased Availability of Products Liability Insurance, 13 U.Calif. Davis L.Rev. 1000, 1002-3 (1980) (footnotes omitted).

      . See Turner, 397 Mich. at 428, 244 N.W.2d at 883.

      . See Products Liability and Successor Corporations, supra note 3, at 1024-25 & nn.90-96.

      . In passing we note that Cassandra, although predicting disaster, was unerringly accurate. Her lot was to be unbelieved and to know her prophecies were ineluctable:
      instamus tamen inmemores caecique furore, et monstrum infelix sacrata sistimus arce, tunc etiam fatis aperit Cassandra futuris ora, dei iussu non umquam credita Teucris. [Nevertheless, we struggle madly, without thought or sight, to plant the ruinous monster within our holy citadel. Even now Cassandra reveals our overhanging doom, and as before we ignore her words by the gods’ fiat.]
      2 Virgil, The Aeneid 30, lines 244-47 (T. Page ed. 1967).

      . See Leannais v. Cincinnati, Inc., 565 F.2d at 441; Bernard v. Kee Mfg. Co., Inc., 394 So.2d 552, 555 (Fla. 2d DCA 1981).

      .Several courts have also recognized that the sale of a sole proprietorship to a successor corporation does not justify expanding successor liability since the selling entity does not disappear as could a selling corporation. Kee, the selling entity, appears to have been a sole proprietorship, based upon Flechas J. Kee’s signing individually the agreement for sale and purchase of assets and not as a corporate officer. Even in Michigan, which has adopted an expanded interpretation of successor corporate liability in Turner, an appellate court did not find imposition of successor liability was warranted when the seller was a sole proprietorship. Lemire v. Garrard Drugs, 95 Mich.App. 520, 291 N.W.2d 103 (1980). A Wisconsin appellate court has similarly refused to adopt the product-line exception or expand the continuation exception where a sole proprietorship was the selling entity, because the sole proprietorship could still be liable for manufacture of the defective product. Tift v. Forge King Indus., Inc., 102 Wis.2d 327, 306 N.W.2d 289 (Wis.App.1981). Tift noted that no case had expanded the general rule under these circumstances, distinguishing Cyr v. B. Offen & Co. because their former employees of the sole proprietorship bought and continued the business. Tift, 102 Wis. at 330, 306 N.W.2d at 291.


text:
    Udell Shirley STEVENS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 60658.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Richard L. Jorandby, Public Defender, and Cathleen Brady and Jon May, Asst. .Public Defenders, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for respondent.
   ALDERMAN, Justice.

By holding that a judgment of conviction which is on appeal may serve as the basis for revocation of probation, the District Court of Appeal, Fifth District, in Stevens v. State, 397 So.2d 398 (Fla. 5th DCA 1981), has created express and direct conflict with the Third District’s decision in Ledee v. State, 342 So.2d 100 (Fla. 3d DCA 1977). We hold that the Fifth District’s holding in Stevens is correct, and we disapprove the Third District’s holding in Ledee.

Stevens’ probation was revoked on the basis that he had violated a condition of his probation which required that he live and remain at liberty without violating any law. Upon his plea of nolo contendere reserving his right to appeal certain motions, he was convicted of possession of a firearm by a convicted felon. The revocation of his probation was based solely on a certified copy of a judgment of conviction of this possession charge. Upon appeal to the Fifth District he argued that the judgment must be final in order to serve as a basis for probation revocation and is not final until affirmed on appeal.

The Fifth District disagreed and reasoned:

[I]n a probation violation hearing the subsequent judgment of conviction is but evidence of the violation of the standard condition of probation that the probationer must “live and remain at liberty without violating any law.” A formal conviction of a crime is not essential, Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980), and even a plea of guilty to a subsequent criminal act has been held sufficient. Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977). Since a judgment of conviction is presumed to be correct until reversed, the better and general rule is that a revocation of probation for a subsequent conviction is proper although the conviction is subject to appeal. Of course, if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed. Plummer v. State, 365 So.2d 1102 (Fla. 1st DCA 1979).

397 So.2d at 398 (footnote omitted).

We approve the Fifth District’s decision in the present case, and we disapprove the Third District’s decision in Ledee.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD and McDONALD, JJ., concur.

      . This conviction was subsequently affirmed. Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980).


text:
    THE FLORIDA BAR, Complainant, v. Norman F. SOLOMON, Respondent.
    No. 61067.
    Supreme Court of Florida.
    Jan. 28, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia Sue Etkin, Bar Counsel of The Florida Bar, Miami, for complainant.
    Norman F. Solomon, in pro. per.
   PER CURIAM.

In its complaint, The Florida Bar charged bar member Norman Solomon with three counts of failure to diligently prosecute matters entrusted to him. Respondent agreed to represent a client whose hand had been severed by a machine at his place of employment. On behalf of the client, respondent filed suit against the machine’s manufacturer, the machine’s installer, and against the client’s doctor for malpractice. Respondent did not pursue the suit against the manufacturer or the installer. The former is either still pending or has been dismissed for lack of prosecution; the latter was dismissed without prejudice and is now barred by the statute of limitations. Respondent did not inform his client as to the progress, or lack thereof, or status of these causes. Respondent pursued the malpractice claim until his suspension from the practice of law for an unrelated matter.

Respondent and the bar entered into a stipulation, later submitted to the referee, whereby respondent admitted his guilt conditioned upon his receiving not more than a three-year suspension from the practice of law, the suspension “to commence at the time of the acceptance of the offer to plead guilty.” The referee reviewed the conditional plea and recommended that it be accepted. Because the bar was itself dilatory, however, in advancing the instant proceeding (the referee noted that the proceeding had endured from February 20, 1979, to April 23, 1981, and that bar counsel failed to attend one of the scheduled final hearings), the referee recommended that the three-year suspension commence at the date respondent could have petitioned for reinstatement.

We accept the conditional guilty plea but reject the referee’s recommended suspension commencement date. We find the more appropriate date for the suspension to commence, given the bar’s neglect, is the date on which respondent entered the plea, February 10, 1981. Respondent shall pay the cost of these proceedings, $388.00.

It is so ordered.

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

        See The Florida Bar v. Solomon, 338 So.2d 818 (Fla.1976). Respondent has not petitioned for reinstatement.