author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Juan AMARO, Juan Alejandro Rodriguez and Sergio Jesus Villegas, Appellees.
    No. 82-1261.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1983.

      Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Tampa, for appellant.
    James V. Dominguez, Tampa, for appel-lee Amaro.
    Nestor Castillo, Jr., Tampa, for appellee Rodriguez.
    Raul C. Palomino, Jr., Tampa, for appel-lee Villegas.
   RYDER, Judge.

The question presented in this appeal is one which has not yet been specifically addressed by the courts of Florida: Can one who is apprehended while in the commission of a drug felony, moments before a co-felon shoots and kills a police officer while attempting to avoid apprehension, successfully claim that he is not accountable under the felony-murder statute for the killing of the officer?

I. FACTS.

In February 1982, an information was filed charging the three appellees, Juan Amaro, Juan Allejandro Rodriguez and Sergio Jesus Villegas, with murder in the third degree (felony murder), delivery of cannabis, and two counts of possession of cannabis. The facts have been gathered from various motions to dismiss and traverses filed with the trial court.

During June 1981, Detective Peterson of the Tampa Police Department met appellee Amaro, the latter being unaware of Peterson’s police affiliation. Amaro subsequently introduced Peterson to appellee Rodriguez. The three discussed the possibility of a sale of marijuana to Peterson. Amaro also acted as a translator.

On July 23, 1982, appellee Villegas, after telephonically communicating with Rodriguez, drove with one Carlos Bello and one Dorta from Miami to Tampa. They proceeded to the residence of Rodriguez.

In the early morning of July 24, 1981, Detective Peterson and Amaro went to the residence of Rodriguez. The purchase price of $13,500.00 was settled upon. The three agreed that the exchange of marijuana and money would take place at 6:00 p.m. on the same day. Shortly before 6:00 p.m., Detective Peterson met with Amaro at which time Amaro stated that the deal was set. Peterson and Amaro drove to Rodriguez’ house and were invited inside by Rodriguez. Dorta was seated on the front porch; Bello was at or near the northeast bedroom door. Bello motioned Peterson and Amaro to that bedroom. Rodriguez, Amaro, Villegas, Bellow and Peterson were all in the bedroom when Rodriguez pointed to two cardboard boxes and spoke to Amaro in Spanish. Amaro then told Detective Peterson “that’s it.” Amaro wanted to smoke and test the marijuana. Peterson visually inspected the marijuana. Amaro offered to go to Peterson’s car for rolling papers, but Peterson indicated he would go to the car himself.

From the automobile, Peterson obtained rolling papers, $13,500.00, and an electronic device with which to signal back-up officers situated in the area that the deal had been consummated or that he needed assistance. When Peterson returned to the northeast bedroom, Amaro rolled and smoked a marijuana cigarette. Bello counted the money handed to him by Peterson and indicated that another fifty pounds of marijuana was available if Peterson could get the additional money which it would cost.

Peterson attempted to activate the signal device, but it malfunctioned. He stalled for time by asking to weigh the marijuana. Villegas left the room, then returned with a scale. Peterson went to a restroom and successfully activated the electronic signal. Back-up officers responded and entered the residence.

Upon entering the house, Detective Ul-rickson observed movement around the northeast bedroom. He saw Rodriguez close the bedroom door. Ulrickson kicked the door open, pointed his gun at Rodriguez, and told Rodriguez: “Hold it! Police.” Ul-rickson then perceived movement from a corner of the bedroom and saw muzzle flash from that direction. Bello shot and wounded Ulrickson. Ulrickson noted that Rodriguez was lying motionless on the floor; Rodriguez had also been shot.

Some ten seconds later, Detective Rauft attempted to open the door to the northeast bedroom. Bello fired two shots through the door, killing Rauft.

Before the shooting took place, but after the police rushed the house, appellee Amaro was seen by Detective McAllister running in the back yard toward a fence. McAllis-ter ordered Amaro to stop, but Amaro continued his efforts to escape and tried to climb or jump over the fence. McAllister grabbed Amaro, pulled him from the fence, threw him to the ground, and struck him. Immediately thereafter, McAllister heard the gunshots fired in the northeast bedroom.

Also before the shooting, appellee Ville-gas went to the southeast bedroom. Detective Mock followed Villegas and, with gun drawn, told Villegas: “Freeze, you’re under arrest,” or “Police, don’t move.” Mock then heard the first set of shots from the northeast bedroom, saw Detective Ulrickson fall into the bedroom and the door close. Mock exited the southeast bedroom, closed the door to that room, and joined Detective Rauft outside the door to the northeast bedroom. The second set of shots were fired through the northeast bedroom door, striking Rauft. A short period of time later, Mock ordered Villegas out of the southeast bedroom and Villegas complied. Thereafter, the premises were secured.

II. PROCEEDINGS BELOW.

All three appellees filed motions to dismiss pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. The circuit court considered the facts presented in the motions, in responsive pleadings, and at a hearing, and granted each appellees’ motion to dismiss the third degree murder charge. The state timely filed its notice of appeal. Rule 9.140(c)(1)(A) and (c)(2), Fla.R.App.P. We have jurisdiction. Rule 9.130, Fla.R.App.P.

III. APPLICABLE LAW.

The charge involved in this appeal is codified in section 782.04(4), Florida Statutes (1981). The statute provides:

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

While there are no cases dealing specifically with third degree felony murder under the circumstances involved in this case, principles from first and second degree felony murder, as well as cases from other jurisdictions, are instructive.

Initially, it is clear that in a criminal case a motion to dismiss is to be “granted only where the most favorable construction to the state would not establish a prima facie case of guilt.” State v. Davis, 243 So.2d 587 (Fla.1971). If reasonable men could find guilt, a jury question exists and the motion should be denied. The facts are to be reviewed by the court in the light most favorable to the state and only where they do not establish such a prima facie case should dismissal be granted. State v. Hudson, 397 So.2d 426 (Fla. 2d DCA 1981).

In dismissing the third degree murder charge, the conclusion of the trial court was that the appellees’ participation in the underlying drug felony had come to an end prior to the killing of Detective Rauft. The appellees argued, and the trial court agreed, that the appellees’ participation in the underlying felony had terminated when they were arrested. It has been held that there are four elements involved in effectuating an arrest:

(1) A purpose or intention to effect an arrest under a real or pretended authority;
(2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;
(3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and
(4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Melton v. State, 75 So.2d 291, 294 (Fla.1954); McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980).

For purposes of this appeal only, we will accept as correct the trial court’s determination that appellees Amaro and Villegas were under effective arrest by the officers when Detective Rauft was killed. However, the trial court’s determination as to appellee Rodriguez is unclear. From the record, it appears that the trial court believed Rodriguez was either under effective arrest or was incapacitated by the first set of shots fired by Bello. On one or both of these grounds, the trial court determined that the participation of Rodriguez in the underlying felony had already ended by the time Detective Rauft was shot and killed. Under the circumstances presented, we believe all three appellees’ motions to dismiss were erroneously granted.

In the felony murder context, the intent of the appellees need not be an intent to commit a homicide. The intent which would support a conviction of third degree murder is the intent to participate in the underlying felony. Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). See Goodwin v. State, 405 So.2d 170 (Fla.1981); Henderson v. State, 70 So.2d 358 (Fla.1954); State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971).

Appellees were charged with delivery and possession of cannabis. Section 893.13(1)(a)(2) and section 893.13(1)(e), Fla.Stat. (1981). These crimes are felonies which can support a charge of third degree murder under section 782.04(4), Florida Statutes (1981). Thus, the intent of the appellees to participate in the delivery or possession of cannabis is a sufficient intent to support the charging and prosecution of appellees for the homicide of Detective Rauft pursuant to the third degree felony murder statute.

The primary point of contention between the parties, then, is what affect has the arrest of Amaro and Villegas and the arrest or incapacitation of Rodriguez on their liability for third degree murder, assuming that the appellees are found on remand to have had the intent to participate in the underlying felony or felonies.

The state has argued that the appellees’ participation in the underlying felonies had not ceased when Detective Rauft was killed. The state’s argument is based on the theory that the underlying felonies did not terminate if even one of the co-felons was actively attempting to escape and his participation in the underlying felony had not otherwise terminated. Hornbeck v. State, 77 So.2d 876 (Fla.1955); People v. Boss, 210 Cal. 245, 290 P. 881 (1930). The state places some emphasis on the fact that the entire episode, from entry to Rauft’s death, took place over a period of time of less than twenty seconds.

The state also has argued to this court that one who participates with others in a common criminal scheme is liable for all offenses committed in furtherance of the scheme, regardless of whether or not the individual physically participates in the commission of the additional crime. Jacobs v. State, 396 So.2d 713 (Fla.1981); Hornbeck, supra; Mills v. State, 407 So.2d 218 (Fla. 3d DCA 1981).

The appellees have maintained that their arrest prior to the killing of Rauft ended their participation in the underlying drug felony and thus precluded their liability for the homicide. In support, appellees cite State v. Milam, 108 Ohio App. 254, 156 N.E.2d 840 (Ohio Ct.App.), on retrial, 163 N.E.2d 416 (Ohio Misc.1959); Mills, supra; Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980); People v. Goree, 30 Mich.App. 490, 186 N.W.2d 872 (1971). Furthermore, it is contended that the shooting of Rauft was not the predictable result of the marijuana transaction, but was an independent act of Bello not in furtherance of the common scheme. Finally, appellee Rodriguez argues that in addition to the foregoing, his own injury caused a sufficient definitive break in his participation in the underlying felony so as to preclude his liability for the killing of Rauft.

The weight of authority, with which we agree, is in accord with the position put forward by the state.

It is well settled that a felon is liable for the acts of his co-felons. Likewise, there is liability for the acts of a felon on the part of one who aids and abets the commission of a felony. The result is not changed by the fact that prior to the perpetration of the underlying felony, there was no premeditated design on the part of any of the felons to commit a homicide. Campbell v. State, 227 So.2d 873 (Fla.1969), cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed. 33 (1970); Hombeck, supra; Henderson, supra. See also Hawkins v. State, 436 So.2d 44 (Fla.1983). It is not even necessary that the accused be present at the time of the killing perpetrated by a cohort. Goodwin, supra; Adams, supra; Miller v. State, 409 So.2d 109 (Fla. 3d DCA 1982). Of course, the homicide must have been committed in furtherance of the: common criminal scheme, or as a prob-l able, predictable, reasonably foreseeable, or causally connected result of the underlying felony. Bryant v. State, 412 So.2d 347 (Fla.1982); Jacobs, supra; Campbell, supra; Pope v. State, 84 Fla. 428, 94 So. 865 (1922); Mills, supra. See Christian v. United States, 394 A.2d 1 (D.C.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d (1979); Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (Va.1978); State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974); People v. Mitchell, 61 Cal.2d 353, 392 P.2d 526, 38 Cal.Rptr. 726 (1964), cert. denied, 384 U.S. 1007, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966); Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926).

Case law has also made clear that a felon is liable for a homicide committed by a co-felon during the latter’s attempt to escape from the scene of the underlying felony. Such a killing is considered to be a part of, and in furtherance of, the felony. Campbell, supra; Hornbeck, supra; People v. Salas, 7 Cal.3d 812, 500 P.2d 7, 103 Cal.Rptr. 431 (1972), cert. denied, 410 U.S. 939, 93 S.Ct. 1401, 35 L.Ed.2d 605 (1973); People v. Goree, supra; People v. Jackson, 20 N.Y.2d 440, 231 N.E.2d 722, 285 N.Y.S.2d 8 (1967), cert. denied, 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668 (1968).

The appellees were engaged with their cohorts in felonious activity. They made the facts. They created the situation at the residence of Rodriguez. Appellees Villegas and Amaro attempted to flee when back-up police officers entered the house. Appellee Rodriguez sought to close the door of the bedroom where he and Bello were situated. Bello attempted to escape capture by shooting his firearm at the police. In fact, Bello emptied his weapon in shooting at the officers. The time frame was extremely short: it was an immediate, continuous, developing situation. In our view, Bellq’s response may be found to be a foreseeable, predictable result of the commission pf a drug felony, and of the attempt by law enforcement officers to apprehend the individuals involved. Recent history has shown that the potential for violence in a drug related felony, particularly in Florida, is high and cannot be discounted.

All three appellees were alleged to be willing participants in the underlying felonies: possession and delivery of cannabis. They are responsible for the results which came about from the forces which they set in motion. When Detective Rauft was killed, the episode was still evolving. Until the scene of the crime, and the participants, were controlled and secured by the officers, the underlying felony had not terminated. Bello’s shooting of the firearm was a part of the attempt to escape apprehension. The fact that the appellees were each under some form of detention, or were being held at bay by the police, or were incapacitated, will not work to absolve appellees from liability for felony murder. The legal fiction urged by appellees, that arrest terminates participation in the underlying felony and prevents liability for a further act of a co-felon, will not serve to ignore the realities and practicalities of the situation. To hold otherwise would be in contravention of the established law and would reward ap-pellees for the fortuitous occurrence of their arrest while the situation was developing and the scene unsecured.

The additional argument offered by ap-pellee Rodriguez concerning his incapacitation also fails based on the foregoing rationale. Rodriguez was injured during the development of the entire criminal episode which he, and the others, had begun. Rodriguez was shot by Bello during the latter’s attempt to escape capture by the police before Bello shot Detective Rauft. The participation of Rodriguez in the drug felony would justify his liability for the homicide unless the factfinder determines that Rodriguez’ participation had otherwise terminated before the shooting of Rauft.

Our conclusion is, and we so hold, that neither the arrest nor the incapacitation of any of the appellees served to terminate the underlying felonies, and neither will operate to relieve the appellees of the ultimate consequences of the forces which they set in motion.

Therefore, we reverse the trial court’s dismissal of the third degree murder charge, and remand this cause for further proceedings.

REVERSED and REMANDED.

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

      . Appellee Rodriguez asserts that his arrest and/or wounding and incapacitation terminated his participation in the underlying felony and his liability for the homicide. We will address this contention and the ambiguity of the trial court’s finding as to Rodriguez infra.

      . For a background of the felony murder rule, and a contra view of the intent requirement, see People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). See also Annot., 58 A.L.R.3d 851. Note that in Florida, the felony murder rule is legislatively created, § 782.04(4), Fla.Stat. (1981), not judicially pronounced.

      . Section 782.04(4), Fla.Stat. (1981), has been amended. See section 782.04, Fla.Stat. (Supp.1982). The amendment would not affect the outcome in this case.

      .The charges for possession and delivery of cannabis have not been addressed in the present posture of this case. This appeal is limited to the legal issue of whether arrest or incapacitation precludes liability for felony murder, where the arrest or incapacitation occurs prior to the homicide.

      . Note that the result might have been different if Bello was “holed up” in the bedroom for some longer period of time and the appellees were securely in custody, either in a jail cell, in a squad car, or perhaps even in handcuffs. However, this is not the situation here and, thus, is left for another day.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    Carl PASS, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-2799, 82-2798.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1983.

      Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Appellant appeals an order revoking his probation and sentencing him to three consecutive five-year sentences. Finding that one of the charged probation violations was not established by sufficient evidence, we reverse in part and affirm in part.

During appellant’s probationary period, an affidavit and warrant were filed charging him with having violated his probation by (a) igniting a fire in his girl friend’s apartment and subsequently being arrested for arson (a violation of condition (5) requiring appellant to remain at liberty without violating any law); and (b) driving an automobile for other than working purposes (a violation of special condition (18) prohibiting appellant from driving any vehicle except for working purposes).

As to the charge for violating condition (5), we reverse. The evidence at the revocation hearing established that on several occasions the day of, and preceding, the fire, two police officers had been summoned to the apartment because of domestic disturbances between the appellant and his girl friend. On the second occasion, before taking appellant’s girl friend with them, one of the officers ordered appellant to get his car and belongings and leave the premises. Appellant testified that he did not ignite the fire but only extinguished it after he noticed smoke in the apartment as he was removing his belongings as ordered. A fire investigator stated that he could not determine the cause of the fire. There was testimony that both the appellant and his girl friend were cigarette smokers.

The state not only failed to show the cause of the fire but also failed to connect appellant with the inception of the fire. The possibility that the fire could have been started accidently by any of the persons present during the previous domestic disturbances was not eliminated. Thus, only a suspicion that the appellant might have intentionally started the fire was created. Mere suspicion that the appellant was involved in a criminal activity does not suffice where the revocation is predicated upon the commission of a crime. Miller v. State, 420 So.2d 681 (Fla. 2d DCA 1982).

Therefore, the trial court could neither properly find that appellant violated condition (5) nor base the revocation of appellant’s probation on such a finding. See McKeever v. State, 359 So.2d 905 (Fla. 2d DCA 1978).

As to the allegation charging appellant with the violation of condition (18), we affirm. Appellant admitted driving the car and being cognizant of the probation condition prohibiting him from doing so. He argues that the violation of probation was not willful and substantial; we disagree.

It is true that before probation can be revoked for failure to comply with the probation condition, the probationer must in some way be responsible for the failure. Davidson v. State, 419 So.2d 728 (Fla. 2d DCA 1982). However, we cannot say the trial court was incorrect in finding that appellant was responsible for his act of driving the car. Although apparently the officer directed the appellant to leave the premises with his car and belongings, there was no evidence that appellant advised the officer that he was prohibited by a special condition of his probation from driving; we will not assume that had appellant so advised the officer, the direction from the officer would have remained in effect. Also, appellant had previously complied with the condition, despite the officer's involvement, by asking his girl friend to bring the automobile to the apartment so he could take his belongings, There was no showing that when appellant drove the car one block to the parking lot he was unable to get someone else to do it for him.

The seriousness of the offense was stressed by the trial court in noting the background for special condition (18): appellant had previously caused a death while driving and had had numerous traffic citations.

On appeal from a probation revocation, the issue is whether the trial court abused its discretion. Bernhardt v. State, 288 So.2d 490 (Fla.1974). “Probation is a privilege or license granted to one convicted of criminal activity. Revocation of that status because of a violation of conditions imposed in lieu of incarceration ... should not be circumscribed by ... strict procedural requirements.... ” Morning v. State, 416 So.2d 844, 845 (Fla. 4th DCA 1982).

Accordingly, we reverse the order revoking the probation for the violation of condition (5). We affirm the order for violation of condition (18). We do not know whether the sentence would have been the same for a violation of only condition (18). Therefore, we remand for the trial court to reconsider the sentence imposed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


author: ORFINGER, Chief Judge.

text:
    George W. VOLK, Appellant, v. STATE of Florida, Appellee.
    No. 82-363.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1983.

      James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The State filed an information jointly charging the appellant, George Volk, and a co-defendant, Croaston, with the offense of grand theft. Prior to trial, the assistant public defender in St. Johns County to whom the case was originally assigned, Ms. Peggy Ready, moved the court, pursuant to section 27.53(3), Florida Statutes (1981), for leave to withdraw as attorney for Volk and for the court to appoint other counsel because of a conflict of interest. The motion requested that the new attorney to be appointed for Volk should be “in no way affiliated with the Public Defender of the Seventh Judicial Circuit.” The Seventh Circuit consists of Volusia, St. Johns, Putnam and Flagler Counties. Ms. Ready worked out of the St. Johns office. Relying on our opinion in Babb v. Edwards, 400 So.2d 1239 (Fla. 5th DCA 1981) (Babb I), the trial court appointed Mr. Ray Cass of the Volusia County office of the Public Defender’s Office, Seventh Judicial Circuit, to represent Volk.

In Babb I, this court held that two adverse defendants could be represented by assistant public defenders in the same circuit where the offices and facilities were sufficiently insulated from each other so as to assure that confidential information would not be inadvertently exchanged. 400 So.2d at 1240. We certified conflict with the decisions of two other district courts of appeal: Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976); Roberts v. State, 345 So.2d 837 (Fla. 3d DCA 1977).

The Florida Supreme Court addressed this court’s certified question in Babb v. Edwards, 412 So.2d 859 (Fla.1982) (Babb II). It there ruled that section 27.53(3) (Supp.1980) “clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the Public Defender’s office upon certification by the Public Defender that adverse defendants cannot be represented by him or his staff without conflict of interest.” 412 So.2d at 862. The express holding by the Florida Supreme Court in Babb II was set forth in the final paragraph of that opinion:

Accordingly, in response to the certified question, we hold that under the provisions of section 27.53(3), two adverse defendants should not be represented by assistant public defenders in the same circuit once the public defender has determined that to do so would be a conflict of interest and on that ground has moved the trial court to appoint other counsel. The decision of the District Court of Appeal, Fifth District, is therefore quashed.

412 So.2d at 862.

The issue now before us is whether the certification of conflict must be made by the elected public defender himself, or can be made by the appointed assistant handling the case at issue. The State argues that the language from the Supreme Court’s decision and in section 27.53(3), Florida Statutes (1981), expressly requires the public defender, not a member of his staff, to make the determination of conflict of interest. The relevant provisions of that statute provide:

27.53(3) If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to move the court to appoint other counsel.

Based on the foregoing language, the State argues that the legislature intended that only the public defender, as the elected full-time representative of indigent defendants in each judicial circuit, should make the important determination of conflict resulting in his office’s automatic disqualification from service to a particular client. It is argued that the statute distinguishes between the elected public defender and his staff, and provides that only the former shall determine conflict.

We cannot agree that section 27.53(3), Florida Statutes (1981), and the opinion of the supreme court in Babb v. Edwards must be as narrowly construed as the State would require us to do. We find nothing in the statute or in any of the court opinions which leads us to the conclusion that the legislature intended to strap assistant public defenders of their independent professional judgment as lawyers, in determining or certifying conflict.

In Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976), the opinion recites that “the public defender’s office was appointed to represent all three co-defendants [and that] after interviewing the three defendants, the public defender’s office filed a motion to be relieved as counsel for petitioner because of a conflict of interest between the defense of petitioner and one of the other co-defendants.” The trial court denied the motion and the district court granted certiorari and quashed the order. Nothing in the opinion indicates a requirement that the elected public defender did or was required to certify the conflict.

In Roberts v. State, 345 So.2d 837 (Fla. 3d DCA 1977), it is even more clear that the motion to withdraw on the basis of conflict was filed by the assistant public defender. The opinion states:

This petition for writ of certiorari seeks review of the trial court’s denial of a motion to withdraw filed by the assistant public defender representing James Theodore Roberts, defendant herein, on the basis of a potential conflict created by the State’s having subpoenaed another assistant public defender to testify in the defendant’s sentencing hearing.

Id. at 838.

After reciting the applicable provisions of the Code of Professional Responsibility, the district court held that the trial court had departed from the essential requirements of law “by refusing to permit assistant public defender Kershaw to withdraw as counsel for Roberts in the sentencing proceedings ...” Clearly there, the conflict was certified by the assistant public defender and not by the elected official.

In this court’s decision in Babb I, we made no distinction between the elected official and his assistants in discussing the issue of conflict. In fact, we specifically alluded to the power of the assistant to determine conflict, and at least inferentially approved his filing of the motion once conflict was found.

The relationship of attorney and client exists between the defendant and the lawyer assigned to represent him. The client’s confidences are reposed in his lawyer (the assistant) who, as an officer of the court, has the direct responsibility of representing his client’s interests. It is that lawyer’s professional judgment which is involved in determining conflict, not that of his boss. We doubt seriously that the elected public defender here has any direct contact with the defendant or any direct knowledge of a conflict. This information would be reposed with the lawyer who represents co-defendants and who decides, based on the information available to him, that a conflict exists. We believe that the statute uses the term public defender in its generic sense to refer to the lawyer appointed to and actually representing a defendant, whether it be the elected public defender or a duly appointed assistant.

It seems anomalous to say that an assistant public defender can represent a defendant charged with crime in every phase of the proceeding, that he can file motions of all kinds, enter pleas for his client and file any type of pleading authorized by law, but that he cannot certify that in his professional judgment, a conflict exists between two or more defendants he has been assigned to represent.

The Code of Professional Responsibility imposes obligations upon attorneys with respect to the attorney-client relationship. In representing a client, a lawyer must exercise his own professional judgment, not the judgment of his employer. DR 5-105 says:

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).

We do not believe that the legislature, in adopting section 28.53, intended to prohibit or inhibit the exercise of independent judgment by trial counsel representing the defendant, and we do not so hold. We are further persuaded to this view by that portion of section 27.53 which says:

“However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict.”

When the trial court becomes aware of the existence of a conflict by virtue of a motion to that effect from an assistant public defender, it should give that information the same credence it would give to similar information from the elected public defender or from any other credible source.

Although the supreme court, in Babb II, specifically declined to address the need for the defendant to show prejudice in addition to conflict as a ground for reversal of a conviction, the U.S. Supreme Court has held that once conflict is shown, prejudice need not be demonstrated because “it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client.” Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). See also Richard v. State, 426 So.2d 584 (Fla. 5th DCA 1983); Jones v. State, 423 So.2d 515 (Fla. 5th DCA 1982).

The judgment of conviction is reversed for a new trial. The trial court is directed to appoint counsel other than a public defender from within the Seventh Judicial Circuit to represent defendant in these proceedings.

REVERSED and REMANDED with directions.

COBB and SHARP, JJ., concur.

      . In this connection, it is worth reviewing Ethical Consideration (EC) 5-23 of the Code of Professional Responsibility which says:
      A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer’s individual client. On some occasions, decisions on priority of work may be made by the employer rather than the lawyer with the result that prosecution of work already undertaken for clients is postponed to their detriment. Similarly, an employer may seek, consciously or unconsciously, to further its own economic interests through the actions of the lawyers employed by it. Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom.


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. M.S.S., a Child, Appellee.
    No. 82-1058.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   GRIMES, Acting Chief Judge.

The state appeals from an order discharging M.S.S., a fourteen year old juvenile, for failure to provide him a speedy trial.

On September 5,1981, two police officers responded to a call at McDonald’s Restaurant in Lakeland. Upon arrival, they searched two vehicles in the parking lot, with the consent of the drivers, and recovered hashish from one automobile. M.S.S. had been standing near the vehicles with seven other persons. The entire group was then placed in patrol cars, given Miranda warnings, and driven to the police station.

At the station M.S.S. was questioned as to his identity and for information regarding the drugs. He did not acknowledge any connection with the hashish. At that time he was not formally charged, fingerprinted, or put in a cell. He was permitted to leave in the custody of his parents about one hour later.

On February 16, 1982, M.S.S. signed a sworn affidavit admitting his possession and ownership of the controlled substance. He stated that he had left the hashish in the rear seat of the car without the driver’s knowledge. On February 26, 1982, M.S.S. was called as a witness during the trial of the driver. In open court M.S.S. admitted that he had placed two grams of hashish in the back seat. As a result, on the same day he was arrested for possession of a controlled substance in violation of section 893.13, Florida Statutes (1981), and taken into custody. The state then filed a petition of delinquency against him. On April 26, 1982, the court granted a motion for discharge on the ground that more than ninety days had elapsed since September 5, 1981, the day of his initial questioning.

The sole issue before us is whether M.S.S. was “in custody” on September 5, 1981, within the meaning of the juvenile speedy trial rule. Florida Rule of Juvenile Procedure 8.180(a) provides that each delinquency petition must be brought to an adjudicatory hearing without demand within ninety days of the earlier date: either when the child was “taken into custody;” or the date on which the petition was filed. The rule does not include a definition for the phrase “taken into custody.”

In D.L.M. v. State, 397 So.2d 439 (Fla. 3d DCA 1981), the police caught a nine year old boy on May 2, 1979, after he emerged from a house that had been burglarized. He was taken back to the house where a witness identified him. He was then permitted to return to his parents, and he was not formally arrested until May 31, 1979. The court held that the actions of the police on May 2 did not constitute “taking into custody,” within the meaning of the rule.

More recently, in State v. D.B.C., 413 So.2d 455 (Fla. 5th DCA 1982), a juvenile defendant was involved in an accident in October of 1980 when he hit a bicyclist as he was driving a van while intoxicated. At the scene the trooper noticed the juvenile was not mentally alert and was physically unstable. He placed the juvenile in the back seat of the cruiser. However, he did not give him a traffic citation or administer a field sobriety test. After one and one half hours the juvenile’s parents arrived, and he was transported to a local hospital. There he was given a blood test and released. The court found that the juvenile had not been “taken into custody” on the date of the accident for purposes of rule 8.180(a).

Interpretations of the adult speedy trial rule also provide guidance in determining the meaning of “taken into custody” within rule 8.180(a). D.L.M. v. State. Therefore, this court’s decision in State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978), is persuasive. Following a shooting incident, the defendant was driven to the police station in a patrol car and given Miranda warnings. Though questioned, he was not arrested, fingerprinted, or put in a cell. He was allowed to leave shortly thereafter. We held that, although the defendant had been “in custody” for purposes of his Miranda rights, he had not been “in custody” for purposes of application of the speedy trial rule. See also State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978); Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977).

When M.S.S. was taken to the police station on September 5, 1981, he was not charged, fingerprinted, or otherwise processed by the police. He was permitted to leave within an hour. Only after admitting his possession of a controlled substance was he formally arrested on February 26, 1982. Under these circumstances, we find that M.S.S. was not “taken into custody” until the date of his arrest. Because less than ninety days had elapsed since February 26, 1982, the court erred in granting the motion for discharge.

REVERSED and REMANDED.

RYDER, J., and HANLON, MORTON, J., Associate Judge, concur.


author: DANAHY, Judge.

text:
    Dorothy STONE as Personal Representative of the Estate of Emma C. Ely, deceased, Appellant, v. VALLEY FORGE INSURANCE COMPANY, a foreign corporation, and David W. Miner, as Personal Representative of the Estate of Arthur F. Ely, Appellees.
    No. 82-1797.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1983.

      P. Allen Schofield, Bradenton, for appellant.
    Stephen C. Chumbris and Oscar Blasin-game of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appel-lees.
   DANAHY, Judge.

The issue in this case is whether the estate of a deceased wife is barred from bringing a wrongful death action against the estate of the deceased husband. For purposes of the appeal, it is admitted that the appellees’ deceased, Arthur F. Ely, was the driver at fault in an automobile accident which resulted in the death of Arthur F. Ely and his wife, Emma C. Ely, who was riding as a passenger. At the time of the accident, Arthur F. Ely was covered by an automobile liability insurance policy issued by appellee Valley Forge Insurance Company-

The personal representative of Emma C. Ely’s estate brought this action for wrongful death against Valley Forge Insurance Company and the personal representative of the estate of Arthur F. Ely. The trial judge ruled that the action was barred by the doctrine of interspousal immunity and entered a final judgment for the appellees. This appeal followed.

We reverse on the authority of the recent decision of our supreme court in Dressler v. Tubbs, 435 So.2d 792 (Fla.1983). In that case the supreme court was presented with the identical question presented in the instant case and ruled that the doctrine of interspousal immunity has no application in a suit for wrongful death brought by the estate of a deceased wife against the estate of a deceased husband.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: PER CURIAM.

text:
    Nancy Jo VALLETTO, f/k/a Nancy Jo Dupree, Appellant, v. Ray Allen DUPREE, Appellee.
    No. AN-404.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1983.
    Stephen J. Baker, P.A., Pensacola, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

Flynn v. Flynn, 433 So.2d 1037 (4th DCA 1983) (on rehearing).

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Pearl Allie REYNOLDS, Appellant, v. NEISNER BROTHERS, INC., Employers Insurance of Wausau and Commercial Union Insurance Company, Appellees.
    No. AP-283.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1983.

      Bruce R. Raster, of McClellan, Raster & Vostrejs, P.A., Ocala, for appellant.
    Martin J. Mickler, of Bullock, Sharp, Childs, Mickler & Cohen, P.A., for appellees Neisner Bros., Inc., and Commercial Union Ins. Co.
   ERVIN, Chief Judge.

The claimant appeals the final order of the deputy commissioner which denies her claim for permanent total disability benefits (PTD) and future medical benefits, and, as to the TTD benefits actually awarded, calculates her average weekly wage (AWW) as $100.65. She argues that the findings of the deputy commissioner are contradictory, confusing, and not in accordance with the evidence. We affirm on the denial of future medical benefits and reverse and remand on the other points.

On October 14, 1977, Reynolds suffered an injury to the thoracic area of her back, when she slipped on a freshly waxed floor while working as a sales clerk at the employer’s store. As a result of the injury, she received temporary total disability benefits (TTD) until February 20, 1978, when she was released by Dr. Marsh. She was also treated by Dr, Whittaker, who saw her on only two occasions, April 6, 1978 and January 2, 1979. He determined that she had sustained a compression fracture in the thoracic spine caused by the accident, with a 5% permanent physical impairment. He opined that she had reached maximum medical improvement (MMI) on April 6, 1978 and that she was then able to work. Although Reynolds had been working thirty-seven and a half hours per week before the accident at $2.65 per hour, she began her work at twenty hours per week upon her return and eventually increased her time to thirty hours per week at $3.70 per hour, which she maintained until October 11, 1981. Reynolds claimed that on that date she was unable to straighten up after bending to pick up a piece of paper at home. She attributed the October 11, 1981 back problem to repeated trauma that aggravated her October 14, 1977 back injury, amounting to a new accident for which she sought compensation, sustained during the moving of merchandise at the store during August and September of 1981, and more specifically while moving a heavy rack of clothes in August 1981.

Dr. Freed treated Reynolds for the back problem on three occasions, October 27, 1981, November 17, 1981 and December 11, 1981. He testified in a deposition that his examination of Reynolds revealed prior back injury, including a compression fracture of the lumbar spine which he estimated was a result of the 1977 accident. He gave his opinion that she had a permanent physical impairment of 8%, and that her period of TTD was from October 27 until December 11, 1981, when he felt she was able to return to work with limitations on heavy lifting, bending, pulling and pushing. By later deposition, however, Dr. Freed modified in part his diagnosis as he had since become aware of Dr. Whittaker’s medical reports concerning Reynolds’ back problems. Dr. Freed had not previously been aware of the compression fracture of the thoracic spine, but upon learning of it, he gave his opinion that such fracture stemmed from the 1977 accident and that the compression fracture to her lumbar spine was caused by the incident in August 1981, while she was pushing the heavy rack of clothes. Based on his subsequent analysis of her condition, he gave her a permanent impairment rating of 12% to the body as a whole based on the multiple compression fractures, but his opinion that she was able to work with some limitations as of December 11, 1981 had not changed.

The deputy commissioner’s order found that Reynolds had previously, on October 14, 1977, suffered a compensable accident, for which she had received compensation and medical benefits. The testimonies of Drs. Wfliittaker and Freed were taken into consideration by the deputy and the order found their testimonies to be in conflict with regard to her impairment. The deputy accepted only the testimony of Dr. Whit-taker, as he was the treating physician, and was therefore in a better position to make the determination of her impairment. Then, purportedly on the basis of Dr. Whit-taker’s medical testimony, the deputy commissioner determined that in August 1981, Reynolds suffered a temporary exacerbation of her pre-existing condition which resulted from the 1977 accident, and further, that she reached MMI on December 11, 1981, with a return to her pre-injury status. The order awarded her TTD benefits from October 27 through December 11, 1981, based on an AWW of $100.65, but found she was neither entitled to medical expenses, pursuant to section 440.13(1), Florida Statutes, nor to permanent and total disability.

On appeal, Reynolds asserts that the order is confusing and contradictory in that the findings are not supported by the evidence. We recognize it is the deputy commissioner’s function to determine credibility and resolve conflicts in the evidence, and he may accept the testimony of one physician over that of another. Furthermore, the deputy need only make such findings of ultimate facts upon which he relies, as they are sufficient justification to provide the basis for an award. See Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 (Fla. 1st DCA 1980). Upon review of the testimony and the order, we cannot agree with the deputy that the testimonies of Drs. Whittaker and Freed are in conflict. To the contrary, they appear to be consistent as far as they go. Dr. Freed’s diagnosis, as modified in light of Dr. Whittaker’s medical records, is in agreement with Dr. Whittaker’s diagnosis that Reynolds’ compression fracture of the thoracic spine stems from the 1977 accident. The variance in their permanent impairment ratings is attributable to the fact that Dr. Whittaker’s last examination of Reynolds was on January 2, 1979, and he admitted that he consequently was unable to give any opinion as to her condition at any time in 1981. Dr. Freed’s impairment rating was based on his examination revealing two compression fractures: a fracture in the thoracic spine of which Dr. Whittaker had diagnosed, and in the lumbar spine of which, Dr. Whittaker had been unaware. Even if we were to accept the deputy’s finding that the testimonies are in conflict, the result of our acceptance of Dr. Whittaker’s testimony to the exclusion of Dr. Freed’s testimony would be a lack of medical evidence to support other findings in the order. No medical testimony other than Dr. Freed’s appears in the record relating to Reynolds’ 1981 impairment. The order, moreover, finds that in August 1981 she suffered a temporary exacerbation of her pre-existing condition; that her MMI was December 11, 1981, which formed the termination date of the award of TTD benefits. Dr. Whittaker’s testimony, relied upon by the deputy, certainly could not provide the foundation for such findings. We find that the inconsistencies and inaccuracies in the order preclude meaningful appellate review, and, as the deputy’s decision regarding Reynolds’ entitlement to PTD benefits was the result of the conflicting findings, we decline to reach the issue of her entitlement to PTD benefits. See Florida Power & Light Co. v. Monks, 407 So.2d 1081 (Fla. 1st DCA 1982). Rather, we remand for further proceedings, and direct the deputy to clarify his findings, upon which Reynolds’ entitlement to benefits can be determined in accordance with the evidence, including claimant’s age, education and physical limitations.

We affirm the deputy’s denial of future medical benefits pursuant to section 440.13(1), Florida Statutes, as it is supported by the evidence. The record does not contain testimony of any residual need for future medical treatment once claimant reached MMI with directions that she return to work with limitations. See Bay Cadillac, Inc. v. Ingram, 384 So.2d 913 (Fla. 1st DCA 1980). Accordingly, we affirm on this point.

Both appellant and appellee agree that Reynolds’ AWW was erroneously calculated by the deputy. The AWW amount stated in the order was apparently derived from her earnings as of the time of the 1977 accident. The parties agree that her AWW properly should amount to no less than $111, based on her 30-hour weekly wage at $3.70 per hour at the time she terminated work in October, 1981. On this point, we remand for recalculation of Reynolds’ AWW. The record discloses that Reynolds had been entitled to health insurance paid by the employer and we direct the deputy also to include the value of such fringe benefits in Reynolds’ AWW. See Constanzer v. Sta Rite and Travelers Insurance Company, 432 So.2d 775 (Fla. 1st DCA 1983).

REVERSED and REMANDED for further proceedings consistent with this opinion.

MILLS and LARRY G. SMITH, JJ., concur.


author: BASKIN, Judge. NESBITT, Judge

text:
    Jules BOIVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2668.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender and Lori Barrist, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Of the points raised by appellant in this appeal only the challenge to his convictions and fifteen-year concurrent sentences for attempted murder, aggravated battery and possession of a firearm in the commission of a felony has merit. Boivin shot at a man and his son who came to Boivin’s trailer to apologize for bumping into the trailer. The victim had been discharged from military service with a 100% disability and had a history of mental problems. Boivin stated that he had to shoot because “they were going to bury [him].” His shot injured the son. Following return of the jury’s verdicts of guilt, the court entered the contested adjudications and sentences.

Upon review of the record we have determined that under the circumstances of this case, the aggravated battery predicated upon the shooting with a rifle is a lesser included offense of the attempted murder, which was also based upon the shooting with a rifle, Brown v. State, 206 So.2d 377 (Fla.1968); Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978); Florida Standard Jury Instructions; In re Standard Jury Instructions, 431 So.2d 594 (Fla.1981); and that possession of a firearm during the commission of any felony also predicated upon the shooting with a rifle is a lesser included offense of the aggravated battery. Cf. Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982) (felonious display of a firearm lesser included of aggravated assault). Since section 775.021(4), Florida Statutes (1981), precludes the imposition of multiple convictions and sentences which are lesser included offenses, we vacate the convictions and sentences for aggravated battery and for possession of a firearm during the commission of a felony. Bell v. State, 437 So.2d 1057 (Fla.1983); State v. Gibson, No. 61,235 (Fla. February 17, 1983) [8 FLW 76]. But see Hawkins v. State, 436 So.2d 44 (Fla.1983). In all other respects the conviction and sentence for attempted murder are affirmed.

Affirmed as modified.

NESBITT, Judge

(dissenting):

Because we are bound to follow the latest pronouncement from the supreme court, I dissent. In Hawkins v. State, 436 So.2d 44 (Fla.1983), the court held that the defendant could not be separately sentenced for a lesser included offense, but allowed the conviction to remain intact. Following that decision, I would affirm the convictions for the lesser included offenses of aggravated battery and possession of a firearm during the commission of a felony, and only vacate the sentences.

       Section 775.021(4) provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


author: HENDRY, Judge.

text:
    Anne E. NANCE, Appellant, v. WINN DIXIE STORES, INC., a Florida corporation, Appellee.
    No. 82-1153.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Daniels and Hicks and Patrice A. Talisman, Rentz & Rust, Miami, for appellant.
    Gerald E. Rosser, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant in this slip and fall case contests the denial of her motion for a new trial following a jury trial which found for appellee Winn Dixie. Because we find that prejudicial error occurred below, we reverse and remand for a new trial.

Appellant had just purchased four one-half gallon bottles of orange juice and was near the exit door of appellee supermarket when she fell and injured herself. Appellant testified that she believed she slipped on a cash register receipt which she found stuck to the bottom of her shoe. Appellee’s arguments below were that appellant’s fall was caused by her own negligence in wearing high heeled shoes while shopping and that she failed to prove that appellee had either actual or constructive notice of the cash register tape on the floor, thereby failing to prove that appellee was negligent. Appellant responds on appeal by arguing that the trial court precluded her from proving appellee’s constructive notice by refusing to allow testimony on prior accidents and conditions and by refusing to allow appellee’s safety manual to be admitted into evidence. She had also requested an instruction on constructive notice which the trial court refused to give.

It is well settled that in order to recover for injuries received in a slip and fall accident, a plaintiff must show either that the storekeeper had actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the storekeeper should have known of it and taken action to remedy it or to guard the plaintiff from harm therefrom. This latter fact may be proved by circumstantial evidence. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973); Camina v. Parliament Insurance Co., 417 So.2d 1093 (Fla. 3d DCA 1982); Burmeister v. American Motorists Insurance Co., 403 So.2d 541 (Fla. 4th DCA 1981); Winn-Dixie Stores, Inc. v. Guenther, 395 So.2d 244 (Fla. 3d DCA 1981); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla. 3d DCA 1979); Marlowe v. Food Fair Stores of Florida, Inc., 284 So.2d 490 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 205 (Fla.1974); Food Fair Stores of Florida, Inc. v. Moroni, 113 So.2d 275 (Fla. 2d DCA 1958), cert. denied, 115 So.2d 414 (Fla.1959).

It is equally well settled that a plaintiff may use evidence of the occurrence or non-occurrence of prior or subsequent accidents to prove constructive notice of the dangerous character of a condition. Perret v. Seaboard Coast Line Railroad Co., 299 So.2d 590 (Fla.1974); Lasar Manufacturing Co., Inc. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); Reinhart v. Seaboard Coast Line Railroad Co., 422 So.2d 41 (Fla. 2d DCA 1982); Bucyrus-Erie Co. v. Hessey, 421 So.2d 672 (Fla. 3d DCA 1982); Wood v. Walt Disney World Co., 396 So.2d 769 (Fla. 4th DCA 1981); Corbett v. Seaboard Coast Line Railroad Co., 375 So.2d 34 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA), cert. denied, 353 So.2d 680 (Fla.1977); Seaboard Coast Line Railroad Co. v. Friddle, 290 So.2d 85 (Fla. 4th DCA), rev’d, 306 So.2d 97 (Fla.1974) (adopting dissenting opinion).

In Firth v. Marhoefer, 406 So.2d 521 (Fla. 4th DCA 1981), the Fourth District Court of Appeal held that it was prejudicial error for the trial court to disallow testimony on prior maintenance and conditions of an elevator to prove the landlord’s constructive notice of an ongoing problem creating a dangerous condition. We find that the same reasoning applies in the instant case, and we hold, therefore, that the trial court, by only allowing testimony on the conditions as they existed on the day of the accident, impermissibly limited appellant’s evidence. It is for the jury to decide whether cash register tapes on the floor of a supermarket is an ongoing problem, and thus, a foreseeable danger of which appellee has constructive notice. Firth v. Marhoefer, supra; Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA), rev. denied, 407 So.2d 1102 (Fla.1981); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980). The jury should also receive an instruction on what must be shown in order to find constructive notice.

For the same reason, we find that appellee’s safety manual, with its repeated warnings about the hazards and consequences of debris left on the floor, should be allowed in evidence for the purpose of showing notice and foreseeability. The jury should decide whether the manual constitutes some indication of the care required under the circumstances, Reese v. Seaboard Coast Line Railroad Co., 360 So.2d 27 (Fla. 4th DCA), cert. dism., 366 So.2d 884 (Fla.1978), and whether that level of care is different from the common-law duty of care a landowner owes to a business invitee. Cf. Bowes v. Lerner Shops International, Inc., 422 So.2d 1041 (Fla. 4th DCA 1982); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980).

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


text:
    Patrick J. BLANCHER, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 82-1180.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Joe N. Unger, Mark J. Feldman, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and James A. Jurkowski and Roy Wood, Asst. County Attys., for appellee.
    Before HENDRY, BARKDULL and JORGENSON, JJ.
   HENDRY, Judge.

Patrick J. Blancher, plaintiff in a personal injury action against Metropolitan Dade County, appeals an order granting defendant’s motion for new trial after plaintiff had received a jury award of $89,695 in damages. The county has cross-appealed an order denying its motion for a directed verdict.

During an adult game of softball at a county park where plaintiff had often played, he received a severe cut on his knee as he slid at top speed into second base. The theory of his suit was that the base was improperly anchored and the soil was too soft, so that his foot slid under the base and he struck the single metal spike to which the base was tied. County employees who maintained the ball park denied that the base was improperly installed or maintained. Plaintiff, who was an experienced softball player, admitted that he was aware of the dangers associated with the game and that injuries sometimes occur.

During deliberations, the jury asked the clerk whether it should consider, in computing damages, some numbers written on the blackboard by plaintiff’s attorney. Instead of submitting the question to the judge in written form, as the clerk had advised them to do, the jurors decided to forego submitting the question to the judge and soon thereafter rendered a verdict which was close to the blackboard figures.

The trial judge, upon receipt of the verdict, announced that he was setting aside the verdict. Later, pursuant to a motion by the County, he entered an order granting a new trial. The order entered provides as follows:

THIS CAUSE came on to be heard before this Court upon Defendant METROPOLITAN DADE COUNTY’S Motion for Directed Verdict or, alternatively, for New Trial. Defendant first so moved ore tenus after publication of the verdict and polling of the jury, whereupon this Court granted Defendant’s motion for new trial. After additional grounds for new trial came to the knowledge of this Court, as delineated below, Defendant METROPOLITAN DADE COUNTY filed a written Motion for Directed Verdict/New Trial, stating all available grounds. This Court, having presided over the entire trial of the above-styled cause, and being otherwise fully advised in the premises, finds that the interests of justice require a new trial.
The Court first finds that the jury empaneled in this cause had improper and prejudicial contacts with third parties. After the verdict had been published, the clerk advised this Court, and later so testified under oath, that while stationed outside the jury room while the jury was deliberating, she received a question from the jury. The jury had asked her orally whether the dollar amounts written on the blackboard by plaintiff’s counsel during closing argument were the numbers to be used in deciding the amount of damages. Although the inquiry clearly indicates that the jury was confused as to the legal and evidentiary effect of closing argument, the clerk failed to relay the question to the Court due to the Court’s error. The failure of the clerk through no fault of hers to allow the Court the opportunity to correct such confusion severely prejudiced the parties, and in light of the verdict reached, especially prejudiced the Defendant METROPOLITAN DADE COUNTY.
The Court also concludes that it erred in denying Defendant METROPOLITAN DADE COUNTY’S request for an instruction to the jury on express assumption of risk, and in denying Defendant METROPOLITAN DADE COUNTY’S request for a verdict form encompassing such instruction. The Court finds that under the particular facts and circumstances of this case, Plaintiff’s involvement in a softball game constitutes participation in a contact sport, a situation in which the defense of express assumption of risk is clearly available. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). The Court further finds that competent evidence, including testimony of the Plaintiff, was presented on the issues of whether the Plaintiff knew of the existence of any danger complained of, realized and appreciated the possibility of injury as a result of such danger, and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed himself to the danger. The Court finds that the manifest weight of the evidence indicates that the Plaintiff PATRICK BLANCHER knowingly participated in a softball game in which the bases were affixed to the ground in such a manner as to allow for a certain amount of “give” in the bases. Moreover, the manifest weight of the evidence shows that Plaintiff, with further full knowledge of the condition of the field at the time of play, expressly assumed the risk of injury by so participating. This evidence at least entitled Defendant METROPOLITAN DADE COUNTY to the requested instruction and verdict form, and inasmuch as express assumption of risk, unlike comparative negligence, is a complete bar to recovery by a Plaintiff, the Court concludes that Defendant METROPOLITAN DADE COUNTY was severely prejudiced by the Court’s refusal to instruct the jury as requested.
The Court further concludes that the verdict is contrary to the manifest weight of the evidence. Plaintiff PATRICK BLANCHER introduced no competent evidence in support of his contention that Defendant METROPOLITAN DADE COUNTY acted unreasonably in its maintenance of the subject softball field, nor in support of his contention that Defendant METROPOLITAN DADE COUNTY acted unreasonably in its installation of bases used at that field. Neither Plaintiff himself, nor any other witness, was able to testify whether any act or omission on the part of Defendant, METROPOLITAN DADE COUNTY, was the legal or factual cause of any damage suffered by Plaintiff. Other than Plaintiff’s counsel’s gratuitous remarks about how “common sense” dictates how bases should be affixed, no evidence was presented to refute the testimony of Defendant’s employee, Thomas Richmeyer, that the manner in which Defendant METROPOLITAN DADE COUNTY affixed its bases and maintained its softball fields at Colonial Drive Park was found to be through experience maximally safe for all participants. Similarly, Plaintiff made no showing as to the alleged dangerousness of the pegs used to affix the bases especially as he both failed to refute the reasoning of Mr. Richmeyer, and moreover did not attempt to produce the actual pegs used at the park. Plaintiff was equally unable to show negligence on behalf of Defendant METROPOLITAN DADE COUNTY with regard to the soil composition at the park.
Additionally, the jury’s finding that Plaintiff himself was not negligent is similarly contrary to the manifest weight of the evidence. Plaintiff admitted that in running as hard as he could, he tried to take the opposing second baseman out of the play, and an objective eyewitness also testified that Plaintiff’s slide appeared to be abrupt. The Court finds this testimony to require the finding of comparative negligence.
Lastly, the Court finds that the verdict rendered by the jury is excessive, and shocks the conscience of this Court. An award of $89,000.00 when the Plaintiff suffered only a 7½ percent permanent partial disability of his leg, and when he is still able to play sports, albeit more cautiously than prior to his accident, indicates that the jury had been unduly influenced by sympathy, passion or prejudice.
All of the reasons stated above convince this Court that a new trial must be granted in this cause to serve the best interests of justice, and it is based on the above findings and conclusions that it is hereby
ORDERED AND ADJUDGED that Defendant METROPOLITAN DADE COUNTY’S Motion for New Trial is hereby granted.

It is from this order that plaintiff has appealed.

In entering its order granting a new trial, we find that the trial court properly followed the dictates of our supreme court in Sosa v. Knight-Ridder Newspapers, Inc., 435 So.2d 821 (Fla.1983), and Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), and properly exercised the broad discretion granted to trial judges in such matters, as described in Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975), and Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

Inasmuch as motions for new trial are granted in the exercise of sound, broad discretion, the ruling of the trial judge should not be disturbed in the absence of a clear showing that this discretion has been abused. Sosa v. Knight-Ridder Newspapers, Inc., supra; Castlewood International Corp. v. LaFleur, supra; Cloud v. Fallis, supra. No such abuse having been shown, the order granting a new trial is affirmed.

As to the cross-appeal, we affirm. Upon a review of the record we are unable to conclude that, as a matter of law, no view of the evidence could sustain a verdict for the appellant. Tesher & Tesher, P.A. v. Rothfield, 392 So.2d 1000 (Fla. 4th DCA 1981).

Affirmed.


text:
    BRYNWOOD CONDOMINIUM, INC., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and Quayside Associates, Ltd., Appellees.
    No. 82-1592.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Shalle Stephen Fine, Coral Gables, for appellant.
    Lapidus & Stettin and Richard Lapidus, Miami, Ress, Gomez, Rosenberg and How-land and Sheldon Rosenberg, North Miami, for appellees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as certain individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salo-mon, Kanner, Damian, Weissler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission.

Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas’ settlement was in the amount of |3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individuals could obtain relief.

Those individuals thereafter filed a seven-count complaint against the Villas, Shores, Quayside, and the lawyers. An appeal from dismissal of their complaint was reversed by this court in McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982).

During the progress of that cause in the trial court [McIntosh v. Harbour Club Villas Condominium Association, supra] the appellant herein, Brynwood, intervened in the proceedings, not in recognition of the plaintiff therein, and by their second amended complaint for intervention sought to receive a portion of the settlement proceeds, an injunction, and other general relief. Following argument the trial court granted a motion to dismiss the second amended complaint in intervention with prejudice. We affirm.

The initial proceeding in the circuit court was a certiorari proceeding pursuant to the applicable Metropolitan ordinance to review a zoning decision by the appropriate county authorities. Those persons who brought the initial appeal represented only themselves and they had a right to dismiss their litigation. If the intervenor was aggrieved by the zoning decision, it had a right to appeal. This it did not do. Brynwood did not allege that it was an objector in the zoning proceedings. It did not claim to have contributed to the legal fund. If Brynwood felt that it was an aggrieved party by the county’s action in granting the zoning variance it should have sought appropriate review, if it had the requisite standing, as it contends. The original appeal was not prosecuted as a class action nor could it have been certified as a class action. Compare: Brown v. Wainwright, 392 So.2d 1327 (Fla.1981); Wags Transportation System, Inc. v. City of Miami Beach, 88 So.2d 751 (Fla.1956); State v. Purdy, 242 So.2d 498 (Fla. 3d DCA 1971); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968); Rule 1.220 Florida Rules of Civil Procedure. Class actions are normally instituted in a trial court and not in an appellate court.

Therefore, we find the appellant’s contention that it should recover herein on the basis that it is a member of a class, to be without merit. The other contentions advanced by Brynwood are also found to be without merit.

Accordingly, the order dismissing the second amended complaint in intervention with prejudice is hereby affirmed.

Affirmed.

      . Certain companion cases were also heard by this court. See Williams v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233 (Fla. 3d DCA 1983); Quayside Associates, Ltd., v. Harbour Club Villas Condominium, Inc., 419 So.2d 678 (Fla. 3d DCA 1982).

      . Rule 1.230 Fla.R.Civ.P. Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

      .THIS CAUSE coming on to be heard before me, the undersigned Judge of the above entitled Court, on Motion to Dismiss filed by HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION and QUAYSIDE ASSOCIATES, LTD., said motion being directed to the Second Amended Complaint in Intervention of BRYN-WOOD CONDOMINIUM, INC., and the Court being duly advised and having heard argument of counsel, having examined the memoranda of law presented by the parties, finds as follows:
      1. The Second Amended Complaint in Intervention filed by BRYNWOOD CONDOMINIUM, INC., basically seeks relief on grounds that HARBOUR CLUB VILLAS, et al., undertook to appeal a zoning decision granting certain variances to QUAYSIDE ASSOCIATES, LTD., for the construction of a high-rise project adjacent to HARBOUR CLUB VILLAS. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATIONS, SHORES CONDOMINIUM ASSOCIATION, BISCAYNE PARK HOMEOWNERS ASSOCIATION, AUDUBON SOCIETY and others, and not BRYNWOOD CONDOMINIUM, INC., contributed to a fund and hired an attorney, Gary Brooks, to challenge the zoning variances granted by the Metropolitan Dade County Commission and to take all necessary appellate steps. The petition for common law certiorari taken by the technical appellant, HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, after the Circuit Court-Appellate division denied relief, was settled after oral argument but before the Third District Court of Appeal had ruled. HARB-OUR CLUB VILLAS CONDOMINIUM and QUAYSIDE ASSOCIATES, LTD. signed a settlement agreement whereby HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION received three million dollars ($3,000,000.00).
      2. BRYNWOOD CONDOMINIUM INC., Second Amended Complaint in intervention seeks to set aside the zoning variances granted to QUAYSIDE ASSOCIATES, LTD., or to participate in the three million dollars ($3,000,-000.00) settlement monies. HARBOUR CLUB VILLAS and QUAYSIDE ASSOCIATES, LTD., move to dismiss the Second Amended Complaint in Intervention on the grounds: (1) the zoning issues and appeal were settled; (2) the appeal filed by HARBOUR CLUB VILLAS was not brought as a certified class action; (3) BRYNWOOD had no standing to contest the zoning issue and was not entitled to share in the settlement proceeds as a third party beneficiary.
      3. In order to challenge the zoning variances afforded to QUAYSIDE, BRYNWOOD would have to allege that they suffered special damages different in kind, rather than different in degree, from those suffered by the community as a whole. Skaggs-Albertson P., Inc. v. Michaels [Micheis] Belle. B. L. [B1.] P., 322 [332] So.2d 113 (Fla. 2d DCA 1976); Skaggs-Albertson v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978). Because the Second Amended Complaint in Intervention does not allege special damages, BRYNWOOD had no right to challenge the original zoning and has no right here to claim an interest in the settlement proceeds.
      4. Here, under the allegations of the Second Amended Complaint in Intervention, BRYN-WOOD would not and does not have any right to bring the prior litigation. BRYNWOOD, unable to assert the doctrine of virtual representation, could not have been affected by the prior zoning litigation. The settlement of that litigation did not affect its rights. It has no rights to share in the proceeds of the settlement. Treasure Salvors, Inc. v. Unidentified Wrecked, etc., 599 [459] F.Supp. 607 [507] (S.D.Fla.1978), aff'd, State of Florida, Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir.1980).
      5. The Second Amended Complaint in Intervention fails to state a cause of action on a third party beneficiary theory. In order to fall within the third party rule, the contract must show a clear intent and purpose to benefit a specific third person. Marianna Lime Product, Co. v. McKay [109 Fla. 275], 147 So.2d 264 (Fla. 1937 [1933]): 11 Fla.Jur.2d, Contracts, Section 155 and cases cited therein. BRYNWOOD was not an intended beneficiary of the settlement agreement. Cherry Lake, Inc. v. Kreace [Kearce], 26 So.2d 434 (Fla.1946).
      UPON the above, it is
      ORDERED that the Motion to dismiss filed by QUAYSIDE ASSOCIATES, LTD., and HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, be and the same is hereby granted. BRYNWOOD CONDOMINIUM, INC.’s Second Amended Complaint in Intervention is dismissed with prejudice.


text:
    Hezekiah MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1662.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Fox, 404 So.2d 799 (Fla. 3d DCA 1981); Hudson v. State, 395 So.2d 228 (Fla. 3d DCA 1981); Cioeta v. State, 367 So.2d 718 (Fla. 3d DCA 1979).


text:
    William J. VANDERVALK and Barbara Ann Vandervalk, his wife, and International Trucking and Rigging Company, Inc., Appellants, v. Noland BREWER, Ronald A. Shears and Thomas A. Duckett, Appellees.
    Nos. 82-1783, 82-1830.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Horton, Perse & Ginsberg and Mallory H. Horton, John R. Sutton, Salley, Barns, Pa-jón, Guttman & Del Valle and William E. Davis, Miami, for appellants.
    Greenfield & DuVal and Leo Greenfield, North Miami, for appellees.

      Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

On February 10, 1973 the appellant, as lessor, and the appellees, Brewer and Shears, as lessees, entered into a business lease covering certain real property in Dade County; said lease reads in part as follows:

* * * * * *
ADDENDUM “C” Paragraph 1 “Lessee is hereby granted two (2) options to purchase said property. Lessee has option to purchase said property at the end of the first five (5) year period for the sum of * $400,000.00. Should Lessee fail to exercise said option, he has a further option to purchase said property at the end of the first ten (10) year period for the sum of * $425,000.00. Said option to be exercised on at least thirty (30) days written notice to Lessor. The terms of payment shall be mutually agreeable between the parties and shall consist of a down payment of no more than Twenty-Nine (29%) percent and the balance to be payable on a long term note and mortgage.
* $400,000.00 — Four hundred thousand dollars
* $425,000.00 — Four Hundred Twenty-Five thousand dollars
* * * * * *
SEVENTEENTH: It is understood and agreed between the parties hereto that time is of the essence of this contract and this applies to all terms and conditions contained herein.
* * * * * *
Upon expiration of the five (5) year term the Lessee shall have a first option to renew this lease for an additional five (5) year term at a monthly rental of SEVENTEEN HUNDRED ($1,700.00) DOLLARS per month, said option shall be exercised at least sixty (60) days prior to the expiration of the first five (5) year term.”

No valid election to execute the option for the second 5 year term was made as provided in the lease and the lessor recovered the possession of the demised property by a possessory action. Brewer v. Vandervalk, 374 So.2d 553 (Fla. 3d DCA 1979), cert. denied 383 So.2d 1191 (Fla.1980).

After the conclusion of the proceeding in the possessory action the appellants commenced an independent action at law to recover for damages to the premises. The ousted lessees counterclaimed seeking to recover certain chattels left on the property, which had been the subject of a prior re-plevin action. The lessees then sought, by an amendment to their answer and counterclaim, specific performance of the option to purchase, contending that it was an independent agreement that survived the termination of the lease by the possessory action. The trial court, after hearing, entered an order granting specific performance and this appeal ensued.

The question of whether or not a clause in a contract is an independent or a dependent covenant is a question of law. See Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977); Manzo v. Patch Publishing Co., Inc., 403 So.2d 469 (Fla. 5th DCA 1981); Investors Diversified Construction, Inc. v. Norin Mortgage Corp., 358 So.2d 869 (Fla. 3d DCA 1978). From our reading of the lease in its entirety, we hold, as matter of law, that the option agreement was a dependent covenant that expired with the lease.

Counsel for the lessee contends that the lease was revived after the expiration of the first 5 year term by a document executed by the appellant, William J. Van-dervalk, but not executed by his wife, Barbara Ann Vandervalk. First, this matter was disposed of in the earlier proceeding, see Brewer v. Vandervalk, 374 So.2d 553 (Fla. 3d DCA 1979), and second, one title holder cannot bind another to encumber real-estate without express authority. Douglass v. Jones, 422 So.2d 352 (Fla. 5th DCA 1982).

We hold that when the lease term expired as to the term, all rights to the option to purchase, likewise expired. Douglass v. Jones, supra; Gower-Goheen Realty, Inc. v. Braun, 215 So.2d 499 (Fla. 2d DCA 1968). Although we would not reach the point, it is also doubtful if the alleged option to purchase is definite enough to sustain a decree for specific performance. Fox v. Sails at Laguna Club Development Corporation, 403 So.2d 456 (Fla. 3d DCA 1981); Langlois v. Oriole Land & Development Corp., 283 So.2d 143 (Fla. 4th DCA 1973); Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968).

In addition, after the property was returned to the appellants in 1978, they released the property, with a right of first refusal in event of sale, to Richard Kipp and Ann Kipp, who operate on the property International Trucking and Rigging Company, Inc. Both were permitted to intervene in the trial court proceedings and if the option to purchase were valid, on this record, the passage in time and change of circumstances may as a matter of law constitute laches on the part of those claiming the right to exercise the option of purchase. See DeHuy v. Osborne, 96 Fla. 435, 118 So. 161 (1928); Stoneman v. Peninsula Land Company, 124 So.2d 760 (Fla. 2d DCA 1960); Perry v. Benson, 107 So.2d 213 (Fla. 2d DCA 1958).

Therefore the final judgment awarding specific performance and other relief is reversed with directions to deny all relief to the appellees.

Reversed and remanded.

      . Subsequently, appellee Duckett, acquired some interest in the lease through Brewer and Shears.

      . The appeals were filed by the Vandervalks, the original plaintiffs, in the trial court, and by the intervenor, International Trucking and Rigging Company, Inc. These appeals were then consolidated by order of his court.

      . There are exceptions to this proposition when there are improvements to the property, which are not applicable in the instant case. Baker v. Rice, 37 So.2d 837 (Fla.1948); Compare, Markos v. Raimondi, 108 So.2d 506 (Fla. 2d DCA 1959).


author: DANIEL S. PEARSON, Judge.

text:
    Craig Jerod JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1817.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.

      Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Evidence that (a) the victim of a purse snatching, committed by a person other than the defendant, saw Jackson emerging from an automobile which the victim had followed from the vicinity of the scene of the robbery; (b) the spoils of the robbery were found in the automobile occupied by Jackson and the perpetrator of the robbery; and (c) Jackson fled from the scene of the robbery; even if arguably supporting inferences that Jackson had driven the perpetrator to and from the scene and had after-the-fact knowledge of the robbery, is insufficient to prove that Jackson knew beforehand of his companion’s intentions, much less that he had a prior intention to participate in the offense, and manifestly does not support Jackson’s conviction for aiding and abetting in the commission of the robbery. D.M. v. State, 435 So.2d 976 (Fla. 3d DCA 1983); Davis v. State, 436 So.2d 196 (Fla. 4th DCA 1983); Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), rev. den., 426 So.2d 26 (Fla.1983); Stuckey v. State, 414 So.2d 1160 (Fla. 3d DCA 1982); A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981); J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); J.O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. den., 379 So.2d 209 (Fla.1980); K.W.U. v. State, 367 So.2d 647 (Fla. 3d DCA), cert. den., 378 So.2d 349 (Fla.1979). As this case once again illustrates, the State’s ill-advised decision to charge the defendant with a crime which the evidence will not support and forego charging the defendant with a crime, e.g., accessory after the fact, which the evidence might justify, serves well the interest of the defendant, but hardly the interest of justice or the community. See A.Y.G. v. State, 414 So.2d at 1159.

Reversed with directions to discharge the defendant.


text:
    Edith KASS and Donald Kass, M.D., Appellants, v. CITY OF MIAMI BEACH, Appellee.
    No. 82-1823.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

This appeal contests a final summary judgment entered in favor of appellee City of Miami Beach and against the appellant, who had filed suit against the city after injuring herself by stepping in a hole located in the swale or parkway area between the sidewalk and the street. We affirm the trial court’s ruling on the basis of Musetto v. City of Miami Beach, 82 So.2d 595 (Fla.1955); Dramstadt v. City of West Palm Beach, 81 So.2d 484 (Fla.1955); City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942); Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981); City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981).

Affirmed.


text:
    Adriana JARAMILLO, as Personal Representative of the Estate of Julia Jaramillo, Deceased, and Guillermo Jaramillo, Appellants, v. CITY OF CORAL GABLES, Appellee.
    Nos. 82-1923, 82-2103.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Weaver, Weaver & Lardin and Marilyn Liroff, Fort Lauderdale, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, Peter G. Stassun, Coral Gables, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Dade County, by a master plan adopted under authority of the so-called Home Rule Amendment to the Florida Constitution, has undertaken total control of traffic both in the unincorporated and incorporated areas of the county, thereby relieving the municipalities of responsibility for damages resulting from faulty or defective traffic control devices. See A.L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3d DCA 1979).

Affirmed.


text:
    In re ONE (1) 1979 CHEVROLET BLAZER BEARING FLORIDA TAG NO. WFF-202, VIN NO. CKL189202370. Jose Antonio MARBAN, Appellant, v. METRO-DADE POLICE DEPARTMENT, Appellee.
    No. 82-2237.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Larraz & Larraz and Jose J. Larraz, Miami, for appellant.
    R. Craig Rockenstein, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Concluding that we are without jurisdiction, we dismiss Marban’s appeal.

On July 8, 1982, the trial court entered a final order forfeiting the subject vehicle upon a finding that the vehicle had been used in a drug trafficking operation with the knowledge and consent of its owner, Marban. Marban timely moved for rehearing, but while that motion was pending in the trial court, filed a notice of appeal. Upon the filing of this notice of appeal on July 30, 1982, Marban’s rehearing motion was effectively abandoned, and the trial court lost jurisdiction of the case. Allen v. Town of Largo, 39 So.2d 549 (Fla.1949); Kasper Instruments, Inc. v. Maurice, 394 So.2d 1125 (Fla. 4th DCA 1981); Scott-Whitaker Co. v. Joyce Properties, Inc., 155 So.2d 661 (Fla. 3d DCA), cert. denied, 159 So.2d 651 (Fla.1963); Chambers v. Chambers, 143 So.2d 656 (Fla. 3d DCA 1962); Frank v. Pioneer Metals, Inc., 114 So.2d 329 (Fla. 3d DCA 1959). See Winn-Dixie Stores, Inc. v. Codomo, 372 So.2d 952, 953 (Fla. 3d DCA 1979) (Schwartz, J., dissenting), cert. denied, 381 So.2d 765 (Fla.1980). We, of course, had jurisdiction of the timely-taken appeal.

However, on November 5, 1982, we dismissed Marban’s appeal because of his failure to take any steps to prosecute it. Mar-ban was apparently undismayed, because by then he had filed a second notice of appeal directed to the trial court’s September 10, 1982, order denying his motion for rehearing. It is this second appeal that is now before us and over which we find ourselves without jurisdiction. As the reader has by now undoubtedly surmised, the trial court’s order denying rehearing was a nullity, and the appeal therefrom breathed no life into it. Under the circumstances set forth, the case below was finally disposed of on July 8, 1982, and our jurisdiction could attach only to an appeal from the order of forfeiture. When that appeal was dismissed for lack of prosecution, Marban’s right to appellate review was lost.

Appeal dismissed.


text:
    Charles BURNS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2459.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Charles Burns, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the trial court’s finding that the defendant violated his probation by committing a theft. We reverse and remand with directions to vacate the trial court’s findings that the defendant failed to file monthly reports and to pay the costs of supervision. The defendant need not be present for this proceeding.

Affirmed in part, reversed in part and remanded with directions.


text:
    Curtis Lovett RAINES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2616.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Bennett H. Brummer, Public Defender, and Carin Kahgan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Clark v. State, 363 So.2d 331 (Fla.1978); Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981), reversed on other grounds, 420 So.2d 877 (Fla.1982); Rhome v. State, 222 So.2d 431 (Fla.3d DCA 1969).


author: NESBITT, Judge.

text:
    James Harris SANDERS, Appellant, v. INVERSIONES VARIAS, S.A., (INVASA), Appellee.
    No. 82-2628.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Hyman & Kaplan and Andrew Kaplan, Miami, for appellant.
    Mark V. Silverio, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

Inversiones Varias, S.A. (INVASA) sued Sanders in the Eleventh Judicial Circuit for damages pursuant to a lease agreement concerning commercial properties in Managua, Nicaragua. Sanders, the lessee, raised the affirmative defense of impossibility of performance due to revolutionary hostilities in Managua. The trial court found this defense insufficient as a matter of law and granted summary judgment of liability in favor of INVASA. This appeal was taken after final judgment in the cause.

Both parties are in agreement that the lease in suit is governed by Nicaraguan law. There is no indication in the record, however, that the trial court applied Nicaraguan law. Counsel for INVASA maintains that this is irrelevant because predecessor counsel for Sanders stipulated in open court that Florida law and Nicaraguan law are identical as concerns the defense of impossibility of performance. Although we have no reason to doubt this representation, we simply are not permitted to rely upon it. Stipulations concerning the practice or procedure in a cause may be made orally before the court, but are of no force unless made a part of the record or incorporated in the stenographic notes of the proceedings. Fla.R.Jud.Admin. 2.060(g). This was not done here.

Of course, the trial court could have taken judicial notice of Nicaraguan law pursuant to Section 90.202(4), Florida Statutes (1981), but only by following the procedure set out in either Section 90.203 or Section 90.204, Florida Statutes (1981). R.A. v. State, 400 So.2d 1059, 1060-61 (Fla. 3d DCA) (Pearson, Daniel, J., concurring specially), pet. for review denied, 407 So.2d 1105 (Fla.1981). Again, the record does not indicate that either procedure was followed. Thus, INVASA, proceeding as it was under Nicaraguan law, has failed to demonstrate that it was entitled to a judgment of liability as a matter of law.

This disposition renders discussion of the other points on appeal unnecessary.

Reversed and remanded.

      . In its “WHEREFORE” clause, plaintiffs complaint demanded judgment against Sanders “for damages, plus interest, cost of suit, reasonable attorneys’ fees, other charges and damages allowable under Nicaraguan law-” (emphasis supplied)


text:
    Thelma W. WECHSLER, Appellant, v. Irving A. WECHSLER, Appellee.
    No. 82-2642.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Baskin & Sears and Paula S. Gold and Frederick N. Frank, Pittsburgh, for appellant.
    Eleanor Levingston Schockett and Jennifer Armstrong West, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

After the wife’s attorney discovered he had not been served with an order denying his client’s exceptions to a general master’s report, as required by Florida Rule of Civil Procedure 1.080(h), he filed a motion for relief of the order pursuant to Florida Rule of Civil Procedure 1.540(b) asserting that as a result of the foregoing, the wife was denied her right to appellate review of the order. Because the husband’s response thereto conceded the truth of the allegation, the trial court should have concluded upon the pleadings that the wife was entitled to be relieved from the undiscovered effects of the order. Rogers v. First National Bank v. Winter Park, 232 So.2d 377 (Fla.1970); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980).

Accordingly, we reverse and vacate the trial court order and remand this cause to the trial court for entry of an order which will provide the appellant with an avenue for a direct appeal. See Gibson, supra, at 351.

Reversed and remanded.