author: ORFINGER, Judge.

text:
    Carolyn HIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 84-113.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a sentence wherein the trial court departed from the sentencing guidelines. We affirm.

Appellant pled guilty to grand theft in the second degree (a third degree felony) and elected to be sentenced under the sentencing guidelines. Despite one prior felony conviction, numerous prior misdemeanor convictions, and the fact that the instant crime had been committed while appellant was on probation, under the guidelines appellant still qualified for “any non-state prison sanction.” The trial court sentenced her to twenty-four months in state prison, and she appeals.

As required by Rule 3.701(b)(6), the court made the following written statement listing the reasons for departing from the recommended guideline sentence:

(1) Defendant’s previous 4 misdemeanor and 1 Felony theft convictions demonstrate she is an habitual thief (2) She has used an alias for no valid reason (3) she has maintained only sporadic employment (4) while she has received county jail time and supervised probation w/condition of 180 days county jail in past cases, this has failed to rehabilitate her (5) She received 24 mon. DOC sentence in Case # 80-900 this date and in view of this, a guideline sentence of 364 days would seem meaningless.

The twenty-four-month sentence referred to in the statement of reasons was the sentence appellant had received that same morning when her earlier probation was revoked because of the crime for which she was being sentenced here.

Appellant argues that the reasons for departure, either standing alone or together, are not enough to warrant such departure as occurred here. We agree on points two and three, but disagree on the others.

Appellant’s use of an alias does not appear in and of itself to constitute a clear and convincing reason for departure. Neither should appellant’s sporadic employment be grounds from departing from the guidelines. A sentence should not be aggravated simply on the basis of an individual’s employment status. We find, however, that grounds (1), (4) and (5) as stated by the trial court are sufficiently “clear and convincing reasons” for departure from the guidelines.

Among the principles embodied in Rule 3.701(b) we find the following:

2. The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerations continue to be desired goals of the criminal justice system but must assume a subordinate role.
6. While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made only for clear and convincing reasons.

If, as this rule indicates, judicial discretion still plays a part in the sentencing process, an appellate court should not reverse a sentence which departs from those guidelines absent a showing of an abuse of that discretion, which we believe to be the standard for appellate review. The rules do not articulate an exclusive list of specific reasons to which a court must adhere in order to depart from the recommended guidelines sentence; rather, they require only that in making such departure, a court must give written reasons which are “clear and convincing.” This omission of a “laundry list” of aggravating or mitigating circumstances appears to be a deliberate decision of the Study Commission rather than an oversight.

We have previously held that a trial judge may depart from the guidelines based on a defendant’s prior record of criminal convictions. Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). Additionally, the defendant had previously been given county jail time and supervised probation with county jail time for previous crimes, but had committed other crimes notwithstanding. She committed the instant crime while on probation for the commission of an earlier felony. We can understand the trial court’s frustration in concluding that these earlier efforts had failed to rehabilitate the defendant and had obviously failed to punish her sufficiently so as to deter further criminal activity, and that a “guideline sentence of 364 days (in county jail) would be meaningless.” He was correct in concluding that something more than a “non-state prison sanction” was required to appropriately punish defendant and be meaningful. We do not find an abuse of the court’s sentencing discretion in sentencing her to a twenty-four month term to be served concurrently with the same sentence given her for the probation violation, so the sentence is

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Florida Rule of Criminal Procedure 3.701.

      . "The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 A.M., October 1, 1983, and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.” In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

      . The trial judges were cautioned that at no time should sentencing guidelines be viewed as the final word in the sentencing process. The factors delineated were selected to ensure that similarly situated offenders convicted of similar crimes receive similar sentences. Because a factor was not expressly delineated on the score sheet did not mean that it could not be used in the sentence decision-making process. The specific circumstances of the offense could be used to either aggravate or mitigate the sentence within the guideline range or, if the offense and offender characteristics were sufficiently compelling, used as a basis for imposing a sentence outside of the guidelines. The only requirement was that the judge indicate the additional factors considered.
      Sundberg, Plante and Braziel. Florida’s Initial Experience With Sentencing Guidelines, 11 Fla. St.U.L.Rev., 125, 142 (1983).


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    John RALPH and Ina Ralph, his wife, Appellants, v. ENVOY POINT CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 83-2542.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Rehearing Denied Sept. 7, 1984.
    Richard A. Zacur of Mensh, Zacur & Graham, P.A., St. Petersburg, for appellant.
    Zala L. Forizs of Blasingame, Forizs & Smiljanich, P.A., St. Petersburg, for appel-lee.
   LEHAN, Judge.

We affirm the trial court’s judgment holding that the board of directors of a condominium association was authorized to construct a vertical seawall extension without the necessity of a vote of the condominium unit owners and that the assessment against the owners for that purpose was not invalid.

The issue here is very similar to that in Tiffany Plaza v. Spencer, 416 So.2d 823 (Fla.2d DCA 1982), and may be stated as follows: If work providing an improvement or alteration to condominium common elements is necessary in order to maintain the common elements, and approval of condominium unit owners is required by the condominium documents for alterations or improvements whereas only board approval is required by the documents for maintenance, should the work be treated as an alteration /improvement or as maintenance for the purpose of determining the necessary authority for the work? The trial court’s judgment in this case resolved that issue consistent with the holding of Tiffany under facts similar to those in Tiffany.

In Tiffany a condominium association board of directors had authorized an assessment for a rock revetment on the beach in front of the condominium to protect condominium common elements from erosion.. Here the condominium association board authorized an assessment for a vertical 42 inch extension to the seawall fronting the condominium in order to protect the common elements from erosion and storm damage. In Tiffany, under condominium documents not materially dissimilar to those here, plaintiff-unit owner contended that the work, and an assessment therefor, should have been put to an owners’ vote.

The trial court in Tiffany agreed, but this court, on appeal, reversed, saying

Construing the declaration, bylaws and statutes as a whole, we conclude that... the declaration [requiring an owners’ vote] is not intended to relieve an objecting unit owner of the pro rata assessment for the cost of an alteration or improvement when it is reasonably necessary for the maintenance, repair or replacement of a common element.

The fact that in Tiffany this court remanded for a determination of whether the revetment was necessary does not distinguish Tiffany in a determinative way. Tiffany held that if work was necessary, board authority was sufficient. Here, there was competent evidence on the basis of which it could be determined that the work was necessary to protect the condominium common elements. Therefore, the trial court’s holding that the board authorization for the work was sufficient was supported by competent evidence. Simply because necessary work for maintenance may also constitute alterations or improvements does not nullify a condominium board’s authority and duty to maintain the condominium common elements.

See also Cottrell v. Thornton, 449 So.2d 1291 (Fla.2d DCA 1984), holding that whether work authorized by a condominium board of directors was for necessary repairs and replacement or constituted material alterations calling for vote of unit owners was a question of fact for the trial court.

We also note that in this case 201 of 210 owners, including appellant, had paid the assessment. The trial court found that appellants had paid the assessment without protest.

Although appellants raise a further issue on appeal that the assessment was invalid for various reasons involving requirements of the condominium documents as to the levying of assessments, they did not pray in their complaint for invalidation of the assessment and do not argue that the issue was tried by implied consent. They only prayed for an injunction to prevent construction of the seawall extension. We, therefore, affirm on this issue also. See Lee County Oil Co. v. Marshall, 98 So.2d 510, 512 (Fla.lst DCA 1957).

We call attention to the advice of this court in Cottrell as to possible consideration being given by condominium associations to amending their condominium documents. If the underlying concern in a situation like this is with substantial amounts of money being expended without owners’ approval and it is desired that there be dollar limitations on board authorized alterations or improvements for the purpose of maintenance, the documents could be amended to that effect.

AFFIRMED.

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


author: RYDER, Chief Judge.

text:
    BOARD OF COUNTY COMMISSIONERS OF CHARLOTTE COUNTY, Appellant, v. RAMPART UTILITIES, INC., a Florida corporation, Appellee.
    No. 84-632.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Clarification Denied Sept. 11, 1984.

      George L. Dorsett, Asst. County Atty., Port Charlotte, for appellant.
    Ben E. Girtman of Madigan, Parker, Gat-lin, Swedmark & Skelding, Tallahassee, for appellee.
   RYDER, Chief Judge.

The Board of County Commissioners of Charlotte County appeals a temporary injunction issued pursuant to Rampart Utilities, Inc.’s petition. We reverse.

Rampart Utilities, Inc. (Rampart) is a privately owned utility which provides water and sewer services to customers in an unincorporated area of Charlotte County. Rampart petitioned the Board of County Commissioners (Board) for a rate increase. The Board set interim rates at a higher level than the previous rates then, two months later and after hearings, set final rates and ordered Rampart to refund the portion of the interim rates collected which was in excess of the final rates.

Rampart appealed the Board’s ruling to the circuit court for Charlotte County and, thereafter, filed a complaint against the Board seeking a temporary injunction. The court entered the injunction pending the outcome of Rampart’s appeal. The injunction allowed Rampart to collect rates in the amount initially requested and prohibited the Board from enforcing its final rate order. The rates sanctioned by the injunction were in excess of both the interim and final rates set by the Board. The court consolidated the appeal and injunction actions.

We hold that the temporary injunction issued in this case was improper because therein the circuit judge usurped a legislative function, the setting of rates for a public utility. Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438 (1943). A court’s power is confined to determining whether an existing rate is reasonable and striking down rates which are clearly unreasonable and unjust. Miami Bridge Co. Here, the judge made no determination as to the reasonableness of the final rates set by the Board.

We vacate and set aside the temporary injunction with instructions that the circuit court proceed to determine whether the final rates set by the Board are reasonable and conduct such other proceedings consistent with this opinion, including the resolution of Rampart’s pending appeal.

REVERSED and REMANDED.

OTT and DANAHY, JJ., concur.


author: SMITH, Judge.

text:
    Jerry KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AW-240.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    As Revised on Denial of Rehearing Sept. 10, 1984.
    Glenna Joyce Reeves, Tallahassee, for appellant.
    Barbara Ann Butler, Tallahassee, for ap-pellee.
   SMITH, Judge.

This is an appeal from the trial court’s refusal to apply the new sentencing guidelines to a criminal defendant sentenced subsequent to October 1, 1983, the effective date of the guidelines. See Rule 3.701, F.R.Crim.P. We reverse and remand for resentencing.

Appellant was convicted of two counts of aggravated assault. Sentencing was deferred until July 9, 1983, at which time appellant failed to appear for sentencing and a capias was issued. Appellant turned himself in on November 7, 1983, and sentencing was reset for November 17, 1983. Appellant’s counsel requested that appellant be sentenced pursuant to the guidelines. The trial court found that appellant was not entitled to the benefits of the sentencing guidelines because he failed to appear for his original sentencing hearing. Appellant was then sentenced to two five year terms of imprisonment, to run concurrently. The trial judge stated that should the appellate court construe the sentence given as a deviation from the guidelines, that he had reasons for departing from the guidelines, and he placed those reasons in the record both orally and in writing.

We held in Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), that Section 921.-001(4)(a), Florida Statutes (1983) requires that a criminal defendant sentenced after October 1, 1983, if he so elects, must be sentenced in accordance with the guidelines. There are no exceptions except those provided for by law, none of which are applicable to appellant. Admittedly, but for appellant’s failure to appear for sentencing on July 8,1983, appellant would not have been entitled to elect sentencing under the new guidelines. However, the law provides a specific remedy for appellant’s misconduct which is for the State to charge him with failure to appear pursuant to Section 843.15(l)(a), Florida Statutes (1983). The law clearly does not condition the defendant’s statutory right to elect to be sentenced in accordance with the guidelines upon the circumstance, fortuitous or contrived, that he should or could have been, but was not, sentenced prior to the guidelines’ effective date. While we can fully appreciate the trial court’s frustration over what appears on its face to be a blatant manipulation of the system by appellant, we are of the opinion that any attempt to fashion a rule whereby the trial court may deny the defendant’s statutory right to elect because of some dilatory action 6n the defendant’s part would be nonproductive.

This leads us to an observation concerning the guidelines which we feel some members of the bench and bar may have overlooked. The sentencing guidelines were not promulgated for the purpose of benefiting criminal defendants, but to promote uniformity in the punishment meted out to those convicted of the same offense, whose prior conviction records and other relevant factors are comparable. The point apparently disregarded by many is that those defendants choosing to be sentenced in accordance with the sentencing guidelines are required to serve the entire term of their sentences, reduced only by gain time, and are not eligible for parole. On the other hand, those who are not sentenced under the guidelines, although their sentences may initially be for a longer term, will be eligible for parole and may in fact receive an earlier release date than if sentenced under the guidelines.

We reverse appellant’s sentences, and remand him to the trial court for resentenc-ing pursuant to the guidelines in accordance with his election. Upon application of the guidelines, if the trial court deems the presumptive sentence inappropriate a sentence outside the guidelines may be imposed, provided clear and convincing reasons for the departure are articulated in writing as the rule requires.

REVERSED and REMANDED.

JOANOS and ZEHMER, JJ., concur.


author: BARKDULL, Judge. BASKIN, Judge

text:
    The CITY OF HIALEAH, a municipal corporation, Detective Martin J. Farraher, and Officer Barry G. Krane, Appellants, v. Stephen Arthur REHM, Kenneth Rehm and Isabel Rehm, Appellees.
    No. 83-1816.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Goodwin, Ryskamp, Welcher & Carrier and Fulvia A. Morris, Miami, for appellants.
    Nathan & Williams and Martin L. Nathan, Miami, for appellees.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   BARKDULL, Judge.

Appellants seek review of an adverse money judgment in the amount of $25,000 entered by the trial court pursuant to a directed verdict on the issue of liability and a jury verdict on the issue of damages. The plaintiffs original action in the trial court sought damages for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress.

Pursuant to a request by Burdines Management of the Westland Mall in Hialeah, the city assigned a tactical police team to monitor the restrooms in Burdines store for individuals who would mill about the restrooms observing other patrons and would engage in either acts of exposure or engage in sexual conduct with other individuals in the restroom. On the day in question, Stephen Rehm, a 14 year old, entered the men’s restroom on at least four different occasions in a one-hour period during which time he did not use any of the facilities but rather wandered around looking at whoever was at the urinals and looking into the stalls through the crack in the doors. On each occasion he would stay five to ten minutes. On one occasion he did enter a stall but there was no indication he had in fact used the facility. Finally the officers being of the opinion that he was guilty of loitering decided to get a field interview card on the plaintiff and explain to him the restroom was not a place to hang out. One of the officers followed the plaintiff out of the restroom and when he attempted to stop him, the boy ran. He was caught, arrested and charged with loitering and prowling. The charge was ultimately dismissed and dropped without prosecution. Thereupon, the plaintiffs brought the instant action seeking by their third amended complaint, damages for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress. At the conclusion of the entire case the plaintiffs moved for a directed verdict on the premise that there was no testimony that the boy was about to approach anyone else or do anything that would cause the police to be concerned for the safety of others. The trial court granted the motions and directed a verdict for the plaintiffs on the issue of liability. This appeal is taken from the judgment entered pursuant to the jury verdict on the issue of damages.

We hold that the trial court erred in directing a verdict for the plaintiffs. The evidence raised an issue as to whether the officers had justifiable reason to believe the minor plaintiff was guilty of loitering in a semipublic place contrary to usual behavior. Reasonable men could reach different conclusions as to the minor plaintiffs conduct, therefore, that issue should have been submitted to the jury for its determination. Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Budgen v. Brady, 103 So.2d 672, (Fla. 1st DCA 1958).

It is axiomatic that directed verdicts should not be entered if the evidence is conflicting and permits different, reasonable inferences. Riccio v. Allstate Insurance Company, 357 So.2d 420 (Fla. 3d DCA 1978); Sparks v. Ober, 216 So.2d 483 (Fla. 3d DCA 1968). A motion for directed verdict should be granted only when the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party (defendants in the case sub judice) concludes that the jury could not reasonably differ as to the existence of a material fact or inference and that the movant is entitled to judgment as a matter of law. Gates v. Chrysler Corporation, 397 So.2d 1187 (Fla. 4th DCA 1981); Kilbum v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973). Where there is any evidence upon which a jury could lawfully find for the movant’s adversary, a verdict should not be directed. Newsome v. St. Paul Fire & Marine Insurance Company, 350 So.2d 825 (Fla. 2d DCA 1977). The ultimate question then is whether there was any evidence upon which a jury could have lawfully found a verdict for defendants. Martin v. Thompson, 124 So.2d 744 (Fla. 3d DCA 1960).

The record reveals testimony concerning the officers’ belief that the elements of the offense of loitering and prowling had been met by the activities of Stephen Rehm. The loitering and prowling statute, Section 856.021, Florida Statutes (1977) provides as follows:

“(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree ...”

The officers agreed the elements of the offense had been met by the minor plaintiff visiting the men’s room four times in one hour looking at individuals using the facilities, peering into occupied stalls, when there were vacant stalls available, etc. They also agreed Farraher would afford plaintiff a reasonable opportunity to dispel their concern. After Farraher identified himself as a police officer, plaintiff “broke and ran” whereupon he was arrested.

“A police officer making an arrest for an alleged commission of a misdemeanor in his presence is not liable for false arrest if he has probable cause (or substantial reason) to believe the arrested person was committing a misdemeanor in his presence.” Toomey v. Tolin, 311 So.2d 678, 681 (Fla. 4th DCA 1975). In determining the legality of the arrest in this cause, the determining factor is not whether the person charged was actually guilty, but whether or not the officer had substantial reason to believe that plaintiff was committing a misdemeanor. If substantial reason exists, the court cannot second guess the officer in the performance of his duty. City of Miami v. Albro, 120 So.2d 23 (Fla. 3d DCA 1960).

The jury could have concluded that the officers reasonably believed the misdemeanor of loitering and prowling had been committed in their presence. An arrest would have then been justified. State v. Outten, 206 So.2d 392 (Fla.1968); City of Miami v. Albro, supra at 26.

A review of the record reveals that jury issues were presented both as to a) whether, when he placed Stephen Rehm under arrest, Detective Farraher in fact himself believed that the offense of loitering and prowling had been committed, [see Spicy v. City of Miami, 280 So.2d 419 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974) ]; and b) whether, if so, there was a reasonable basis for that belief in the circumstances he observed. Spicy v. City of Miami, supra.

As to false arrest and false imprisonment, plaintiff was required to show that defendants, in procuring his arrest, exercised unlawful restraint and detained him against his will. Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981). The record in this case presents two distinct versions of the facts surrounding plaintiff’s arrest. Under these circumstances, an issue of fact was presented as to whether probable cause existed upon which plaintiff should have been arrested.

The record contains conflicting evidence as to probable cause to arrest. This issue should have been properly submitted to the jury. Carson v. Brookshire, 440 So.2d 614 (Fla. 1st DCA 1983). The circumstances of the present case require the resolution of conflicting evidence, and the plaintiff’s motion for directed verdict at the close of the evidence was therefore improperly granted.

The record discloses the existence of issues of fact and reasonable evidence upon which the jury could legally predicate a verdict in favor of the non-moving parties, Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3rd DCA 1977), therefore the cause is reversed and remanded for a new trial.

Reversed and remanded.

BASKIN, Judge

(dissenting).

Because the trial court properly found that upon the undisputed testimony no probable cause to arrest existed as a matter of law, I respectfully dissent. The City of Hialeah saw fit to expend a substantial amount of public monies by assigning a team of police to monitor restrooms at Bur-dines after receiving complaints that individuals were milling about observing other patrons, exposing themselves, or engaging in sexual conduct. The evidence shows that, at most, appellee entered a men’s restroom four times within an hour, stayed five to ten minutes, looked into the stalls, and observed persons at the urinal. He neither approached any other patron nor exposed himself. One time he entered an empty stall and left without flushing. When appellee, a 14 year old juvenile, left the restroom, he was followed by an unidentified undercover police officer. He ran. His conduct was not unreasonable for a youth being pursued by a man after both had just left a restroom.

Nothing in appellee’s behavior meets the judicial construction of the loitering and prowling statute of State v. Ecker, 311 So.2d 104 (Fla.1975), necessary to save the statute from being declared unconstitutionally vague and overbroad. Ecker requires that

“the police officer ... be able to point to specific and articulable facts which, taken together with rational inferences from those facts [would] reasonably warrant” a finding that a breach of the peace is imminent or the public safety is threatened.

Id. at 109.

Here, the facts simply do not support a rational inference that a breach of the peace was imminent or that the public safety was threatened. The statute may not be used as a “catchall” criminal charge. Id. at 111. Milling around a restroom and observing other patrons by itself does not constitute a criminal offense, and is an insufficient basis for an arrest for loitering and prowling. Because the undisputed facts disclose an absence of probable cause for arrest as a matter of law, I would affirm the judgment in favor of appellee in his action to recover damages for false arrest and related claims.

      . Defendants in the trial court were the City of Hialeah (employer of the arresting officers); Officers Barry G. Krane and Detective Martin J. Farraher (the arresting officers); and Federated Stores d/b/a Burdines (which was granted a favorable final summary judgment and is not a party to this appeal).

      . The plaintiffs in the trial court were Stephen Arthur Rehm (the minor plaintiff); Stephen Arthur Rehm (father of the minor plaintiff) and; Isabel Rehm (mother of the minor plaintiff).


author: PER CURIAM.

text:
    Fred FINBERG, Appellant, v. HERALD FIRE INSURANCE COMPANY, Appellee.
    No. 83-1850.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 17, 1984.
    Kwitney, Kroop & Scheinberg and Richard I. Kroop, Miami Beach, for appellant.

      Jorden, Melrose & Schuette and Robert J. Schaffer and Mark D. Greenberg, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This is an appeal by plaintiff Finberg from a final summary judgment entered in favor of defendant Herald Fire Insurance Co.

Finberg filed a complaint for declaratory relief after Herald Fire Insurance Co. denied coverage for a motorcycle and a Porsche automobile which were destroyed in a fire when a gas clothes dryer located in Finberg’s garage burst into flames. Herald Fire admitted it issued a homeowner’s policy but denied coverage on the basis that the fire loss was excluded under Coverage C — Personal Property; that exclusion states that the company does not cover motorized land vehicles, except those used to service an insured’s residence, which are not licensed for road use. Finberg responded by pointing to Definition 5 in the policy, which states in relevant part that a motorized land vehicle in dead storage on an insured location is not a motor vehicle.

The cause was heard on Herald Fire’s motion for summary judgment. For purposes of the motion, the parties agreed that the vehicles were not used to service Fin-berg’s residence. They further agreed that the vehicles were in dead storage.

The trial court found that the vehicles were excluded under Coverage C — Personal Property. The court additionally found that the definition [5] of “motor vehicle” in the policy was not applicable to the exclusion under Coverage C. Based upon these findings, the insurance company was granted a final summary judgment.

It is appellant’s contention on appeal that the trial court erred in granting a summary judgment where there was ambiguity within the terms of the policy sufficient to create a question of fact.

The ambiguous language used in Coverage C and Definition 5 of the policy creates doubt as to when a motor vehicle is or is not a motor vehicle. It is fundamental that doubtful language in a contract should be interpreted most strongly against the party who selected that language. Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla.1980); Clermont Builders Supply, Inc. v. General Construction & Design, Inc., 423 So.2d 518, 520 n. 3 (Fla. 5th DCA 1982); Century National Bank v. Williams, 422 So.2d 1065 (Fla. 1st DCA 1982); Jennings Country Club Homes, Inc. v. General Capital Corp., 419 So.2d 1105 (Fla. 3d DCA 1982); MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla. 3d DCA 1977).

The final summary judgment appealed is reversed. We find, however, that since Definition 5 of the policy states that a motorized vehicle in dead storage is not a motor vehicle and since, for purposes of the hearing on the motion for summary judgment appellee stipulated that the vehicles were in dead storage, there are no longer any disputed issues of fact and appellant is entitled to a final summary judgment as a matter of law. We remand for entry of final summary judgment in appellant’s favor.

Reversed and remanded.


author: BASKIN, Judge.

text:
    Miguel MURCIANO, Appellant, v. Jose Antonio URROZ, a/k/a Jose Urroz Mayorga, Appellee.
    No. 83-2022.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 17, 1984.

      Armstrong & Mejer and Timothy Armstrong, Coral Gables, for appellant.
    Steven R. Berger, Pomeroy, Betts & Miller, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

This is an action based upon fraud, conspiracy to defraud, and conspiracy to convert property. The trial court entered judgment against appellant Murciano in accordance with the jury verdict awarding appellee Urroz compensatory and punitive damages. We reverse the damage award.

The basic facts involve a thwarted attempt by Urroz to purchase an aircraft to start a crop dusting business. Based upon representations made by Murciano that his employer, Nigel Winfield, could deliver an aircraft to Urroz within three months, Ur-roz gave Murciano a $10,000 deposit. However, the airplane was never delivered and the deposit was never returned.

We are compelled to reverse the damage portion of the final judgment because of the trial court’s error in instructing the jury that Urroz was entitled to recover lost profits. It is axiomatic that to establish lost profits, a litigant must prove that his business has earned profits for a reasonable time anterior, to the breach. New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1936); A & P Bakery Supply & Equipment Co. v. Hawatmeh, 388 So.2d 1071 (Fla. 3d DCA 1980); Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla. 3d DCA), cert. denied, 322 So.2d 913 (Fla.1975). The record in the present case reveals that appellee Urroz had not started his crop dusting business at the time of the breach which occurred when the aircraft he sought to purchase was not delivered. Accordingly, he was not entitled to an award of lost profits. New Amsterdam Casualty Co.; A & P Bakery Supply & Equipment Co.

Reversed and remanded for a new trial as to damages. The trial court should insure that the issue of lost profits is not submitted to the jury.


text:
    S. MURRAY, Murray Silvern and Allied Builders Corp., Appellants, v. Ainslee R. FERDIE and Dade County Bar Association, Appellees.
    No. 83-2872.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 17, 1984.

      Evan J. Langbein, Miami, for appellants.
    Ferdie & Gouz, Coral Gables, Joe N. Un-ger, Barranco & Kellough, Miami, Lisa Bennett, Coral Gables, for appellees.
    Before HUBBART and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr. (Associate Judge)
   PER CURIAM.

The former clients [S. Murray, et al.] of an attorney [Ainslee Ferdie] appeal an adverse final judgment confirming an arbitration award of the Dade County Bar Association entered in favor of the attorney in a dispute between the parties over legal fees. The former clients claim that the evidence adduced in the non-jury trial held below was insufficient to support the final judgment. We disagree and affirm.

In a prior appearance of this case, we reversed a summary judgment entered in favor of the attorney and remanded the cause for a trial “as to the claim that the agreement to arbitrate herein was null and void because the appellants’ consent to said agreement was induced through oral misrepresentations.” Murray v. Ferdie, 431 So.2d 724, 725 (Fla. 3d DCA 1983). Upon remand, the trial court conducted a full trial on this claim and found in the final judgment that the oral misrepresentations claimed by the former clients did not, as a matter of fact, take place. There was competent, substantial evidence in the record to support this finding of fact, and, accordingly the final judgment must be affirmed. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

Affirmed.


text:
    FAST FREIGHT TRANSFER, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 84-472.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 19, 1984.
    Richard B. Austin, Miami, for appellant.
    Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Jr., Miami, for appellee.
    Before HUBBART and JORGENSON, JJ., and WILLIAM A. NORRIS, Jr., Associate Judge.
   PER CURIAM.

We affirm the summary judgment under review upon a holding that the undisputed facts establish a breach of the locked vehicle warranty which was part of the contract of insurance involved in this litigation.

Affirmed.


text:
    Bernard SCHONINGER and Howard Schoninger, as partners d/b/a Schoninger Enterprises, f/k/a Casto Developers, Appellants, v. Isabella NOEL, Appellee.
    No. 84-981.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 17, 1984.
    Cohen, Brown, Reed, Ivans & Schwartz, and Allen P. Reed, Miami, for appellants.
    Burton B. Loebl, North Miami Beach, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Finding that venue properly lies in Dade County where the cause of action in this case accrued, § 47.011, Fla.Stat. (1983); Itel-Pas, Inc. v. Jones, 389 So.2d 1085 (Fla. 3d DCA 1980), we reverse the trial court’s order transferring venue to Lake County.

Reversed and remanded.


author: WENTWORTH, Judge.

text:
    DODGEN INDUSTRIES, INC., Appellant, v. Calvin COOK, Appellee.
    No. AV-338.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.
    Rehearing Denied Sept. 10, 1984.
    Nicholas Yonclas, Geoffrey B. Schwartz, of Akerman, Senterfitt & Eidson, Tallahassee, for appellant.
    Andrew J. Decker, III, of Airth, Sellers, Lewis & Decker, Live Oak, for appellee.
   WENTWORTH, Judge.

Appellant seeks review, of an order awarding appellee indemnification after appellant’s motion to dismiss for lack of personal jurisdiction was denied. We find that the trial court properly denied appellant’s motion to dismiss, and we affirm the order appealed.

Appellant is a foreign corporation which manufactures feed processing equipment, and which initiated contact with appellee by personal mail solicitation within Florida. After the parties exchanged further correspondence appellee traveled to Iowa where he entered into a purchase contract for a feed pelletizer. Although the sale was made F.O.B. Iowa, appellant effected delivery of the pelletizer to appellee in Florida. Appellant thereafter sent various repair parts by mail to appellee in Florida, and on one occasion appellant’s representative personally contacted appellee in Florida in an attempt to resolve problems with the machine’s performance. Appellee eventually filed a third party action against appellant, alleging a breach of warranty, and appellant moved to dismiss for lack of personal jurisdiction.

Section 48.181(1), Florida Statutes, provides for substituted service of process and the attachment of jurisdiction with regard to nonresident defendants upon:

The acceptance by ... foreign corporations ... of the privilege extended by law to non-residents and others to operate, conduct, engage in, or carry on a business or business venture in the state

In applying § 48.181(1) the courts have routinely focused on whether there exists a general course of business activity for pecuniary gain within the state. See e.g., Dinsmore v. Martin Blumenthal Assoc. Inc., 314 So.2d 561 (Fla.1975); DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969); Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973). But § 48.181(1) also expressly applies to foreign corporations which “engage in ... a ... business venture in the state,” and as the Florida Supreme Court has indicated, in State v. Register, 67 So.2d 619 (Fla.1953):

There is a vast difference between the words ‘a business’ and the words ‘business venture’ .... One may engage in a ‘business venture’ without operating, conducting, engaging in, or carrying on ‘a business.’

In Register the court found that the purchase and subsequent listing for sale of a Florida citrus grove was a “business venture” which conferred personal jurisdiction over the nonresident defendant. Compare Woodring v. Crown Engineering Co., 141 So.2d 816 (Fla. 2d DCA 1962). The present case likewise contains sufficient factors so as to establish a “business venture” in Florida within the purview of § 48.181(1). The jurisdictional requirements of § 48.-181(1) being thus satisfied, the trial court did not err in determining that personal jurisdiction was established and accordingly denying appellant’s motion to dismiss. The order appealed is affirmed.

ERVIN and BOOTH, JJ., concur.

      . While § 48.193(l)(f)2, Florida Statutes, provides for jurisdiction over nonresident manufacturers of products which are used and result in injury within Florida, this statute has been held to require personal service of process. See e.g., National League for Nursing v. Bluestone, 388 So.2d 1090 (Fla. 3d DCA 1980); Bradford White Corp. v. Aetna Ins. Co., 372 So.2d 994 (Fla. 3d DCA 1979). In the present case the parties rely solely upon § 48.181(1).


author: GLICKSTEIN, Judge. HURLEY, Judge,

text:
    CITY OF POMPANO BEACH, Petitioner, v. Richard Maynard CAPALBO, Respondent.
    No. 82-2496.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 26, 1984.
    Philip J. Montante, Jr., City Prosecutor, Pompano Beach, for petitioner.
    Dorothy V. Maier of Wagner & Kollra, P.A., Fort Lauderdale, for respondent.
    James R. Wolf, Tallahassee, as amicus curiae by Florida League of Cities, Inc., on behalf of petitioner.
    James K. Green of Green, Eisenberg & Cohen, West Palm Beach, as amicus curiae by American Civil Liberties Union of Florida on behalf of respondent.
   GLICKSTEIN, Judge.

On September 12, 1981, at approximately 2:55 a.m. a City of Pompano Beach police officer saw respondent Richard M. Capalbo sleeping in his automobile, which was parked in a city parking lot. Respondent was arrested and charged by information with violating City of Pompano Beach Municipal Code Section 31.66. This ordinance provides as follows:

It shall be unlawful for any person to lodge or sleep in, on, or about any automobile, truck, camping or recreational vehicle or similar vehicle in any public street, public way, right of way, parking lot or other public property, within the limits of the city.

Prior to trial, respondent moved to dismiss on the grounds the subject ordinance was facially vague and overbroad and opened the door to arbitrary enforcement. The Broward County Court granted respondent’s motion, holding the ordinance unconstitutional, and the circuit court affirmed. The circuit court held that while the ordinance was “not overly vague or ambiguous” it placed “too great a burden on our law enforcement officers and our citizens alike for uniform enforcement.” Thereafter, the city petitioned this court for writ of certiorari.

Having considered the submissions of the parties, amicus curiae briefs of the Florida League of Cities and American Civil Liberties Union, and case authorities, we conclude the circuit court did not depart from the essential requirements of law in affirming the county court’s decision. Section 31.66 is both unconstitutionally vague and overbroad.

Because a municipal council, like the legislature, would not knowingly enact an unconstitutional measure, appellate courts will indulge every reasonable presumption in favor of an ordinance’s constitutionality. Kass v. Lewin, 104 So.2d 572 (Fla.1958). We would like, if we could, to accept the reasoning of our learned colleague’s dissent, but we cannot. We agree with him that the subject ordinance would probably be constitutional if it proscribed only lodging in, on or about motor vehicles as further described in the ordinance. But the ordinance also proscribes sleeping in, on or about motor vehicles, employing the disjunctive “or.” This language is the source of the ordinance’s constitutional infirmity, as we adumbrate below. A maxim that carries as much weight as the presumption of an enactment’s constitutionality cautions us that operative language may not be regarded as surplusage. Here we cannot disregard inclusion of the words “or sleeping” in the ordinance’s statement of the acts it proscribes, and appellant was arrested for sleeping, not lodging, in his motor vehicle. A court is not a super-legislature that second guesses what a legislature really meant to say; the legislated language speaks for itself.

There is great similarity between the City of Pompano Beach sleep-in-a-vehicle ordinance and the St. Petersburg ordinance struck down in State v. Penley, 276 So.2d 180 (Fla. 2d DCA), cert. denied, 281 So.2d 504 (Fla.1973). The St. Petersburg ordinance provided that “[N]o person shall sleep upon or in any street, park, wharf or other public place.” Id. at 180. The Pen-ley court likened the St. Petersburg ordinance to vagrancy laws that draw no distinctions between conduct calculated to harm and conduct that is essentially innocent, id. at 181, and held the ordinance void for vagueness because, (1) in the words of United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954), it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” 276 So.2d at 181; and (2) “the ordinance, as written, may result in arbitrary and erratic arrest and convictions. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.” 276 So.2d at 181.

In striking down an ordinance which prohibited loitering if it impeded or tended to impede passage, a sister court stated the constitutional criteria as follows:

It is well settled that a law denies due process guaranteed by the Fourteenth Amendment of the United States Constitution if (1) it is so vague that a person of ordinary intelligence is not put on notice of the conduct which is prohibited, State v. Buchanan, Fla. 1966, 191 So.2d 33, 34; Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, or (2) if the law is so over-broad that it makes common conduct criminal and provides the police with unfettered discretion to arrest. Headley v. Selkowitz, Fla.1965,171 So.2d 368; State v. Penley, Fla.App. 1973, 276 So.2d 180, 181; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618 [619], 83 L.Ed. 888.

Ciccarelli v. City of Key West, 321 So.2d 472, 473 (Fla. 3d DCA 1975). The United States Supreme Court has summed up the void-for-vagueness doctrine in similar language:

It is settled that, as a matter of due process, a criminal statute that “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), is void for vagueness. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). This appears to be especially true where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights. Id., at 109, 92 S.Ct., at 2299; 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 87 S.Ct. 675, 683-684, 17 L.Ed.2d 629 (1967).

Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683, 58 L.Ed.2d 596, 606 (1979). Moreover, in the recent case of Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903, 909-910 (1983), the Supreme Court has indicated that a statute that lends itself to arbitrary enforcement can be void for vagueness even if it gives fair notice of what conduct it prohibits:

Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, supra, 415 U.S. at 574, 94 S.Ct., at 1247-1248. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Id., at 575, 94 S.Ct., at 1248. [Footnote omitted.]

The Kolender Court found unconstitutionally vague a California statute that failed to make clear what would constitute “credible and reliable” identification of persons stopped for loitering on the streets by a police officer who had articulable suspicion. Id. at 353, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. This defect left the decision of whether or not to arrest to “the whim of any police officer.” Id. 358, 103 S.Ct. at 1859, 75 L.Ed.2d at 910. The Court stated its holding “rests on our concern for arbitrary law enforcement and not on the concern for lack of actual notice.” 461 U.S. at 358, 103 S.Ct. at 1859, 75 L.Ed.2d at 910.

In the instant case, the subject ordinance gives ample notice of the conduct that is proscribed, yet is void for vagueness because it leaves in the unbridled discretion of the police officer whether or not to arrest one asleep in a motor vehicle on a public street or way or in a parking lot. A wide range of persons may violate the sleep-in-the-vehiele statute, from the tired child asleep in his car-seat while a parent drives or while the car is parked, to the alternate long-distance driver asleep in the bunk of a moving or parked tractor-trailer, to the tired or inebriated driver who has taken widely disseminated good counsel and chosen to go to sleep in his parked car rather than take his life or others’ lives in his hands, to the latterday Okie who has made his jalopy his home. The officer encountering these varied situations is left free to decide for himself whether to enforce the ordinance.

On the basis of not dissimilar reasoning the ordinance is also unconstitutionally overbroad. By its language the ordinance criminalizes conduct which is beyond the reach of the city’s police power inasmuchas conduct “in no way impinges on the rights or interests of others.” Lazarus v. Faircloth, 301 F.Supp. 266, 272 (S.D.Fla. 1969). Effective law enforcement does not require that citizens be at the “mercy of the officers’ whim or caprice,” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949); and the just concerns of the public regarding crime must take rational expression and not become a mindless fear that erodes the rights of a free people, Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974, 980 (Okla.Crim.App.1971). A penal statute that brings within its sweep conduct that cannot conceivably be criminal in purpose or effect cannot stand. Absent a showing of a compelling subordinating societal interest, the City may not thus invade the right of persons, “as against the government ... to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Griswold v. Connecticut, 381 U.S. 479, 494, 85 S.Ct. 1678, 1687, 14 L.Ed.2d 510, 521 (1965), Goldberg, J., concurring (citing Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (1928), Brandeis, J., dissenting). Surely the City could tailor an ordinance that fits more snugly the health, safety or aesthetic concerns it may have intended to address in enacting Section 31.-66.

Certiorari is denied.

HERSEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I have a fundamental disagreement with the majority’s approach to this case. It is axiomatic that courts are obliged to avoid constitutional rulings where a statutory ruling would suffice. See Whalen v. United States, 445 U.S. 684, 702,100 S.Ct. 1432, 1443, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting); Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Since there is an alternate and wholly satisfactory method for resolving the case at hand, I would not resort to constitutional adjudication.

The city council of Pompano Beach enacted ordinance 31.66 making it unlawful “for any person to lodge or sleep in ... any automobile, truck, camping or recreational vehicle ... in any public street, ... parking lot or other public property, within the limits of the city.” The majority opinion, focusing on the word “sleep,” suggests a host of harsh, absurd consequences that will result from a literal application of the ordinance. Although this spotlight approach produces a dramatic effect, I do not think it justifies the majority’s resort to constitutional adjudication. The better approach, it seems to me, lies in the application of traditional principles of statutory construction.

The ordinance, like any other legislative enactment, enjoys a presumption of validity. State v. Sawyer, 346 So.2d 1071 (Fla. 3d DCA), cert. denied, 353 So.2d 678 (Fla.1977), cert. denied, 436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 414 (1978); see State v. McDonald, 357 So.2d 405 (Fla.1978). Where a literal interpretation of a statute leads to an absurd result, the strict letter of the law should yield to the obvious intent of the legislature. Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951); State ex rel. Register v. Safer, 368 So.2d 620 624 (Fla. 1st DCA 1979). The latter rule is grounded in the maxim that “courts will not ascribe to the Legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred.” City of St. Petersburg v. Siebold, 48 So.2d 291, 294 (Fla.1950). Finally, to determine legislative intent, a court should read the entire statute. State v. Rodriquez, 365 So.2d 157,159 (Fla.1978).

After reading the ordinance as a whole, one notes that the city council used the term “lodge,” albeit in the disjunctive, with the term “sleep.” This juxtaposition is significant for it provides a key to the council's intent. “Lodge” intimates a purposeful decision to establish living quarters. The encampment need not be permanent, but its duration is longer than that required for a casual nap, or a stop to relieve fatigue, sickness or other incapacitation. The term “lodge” also suggests the problem sought to be regulated by the ordinance. Most vehicles do not contain basic amenities or sanitation facilities. Unquestionably, municipalities have the right to exercise the police power to prevent people from residing in such “structures.” See e.g., Dennis v. City of Key West, 381 So.2d 312 (Fla. 3d DCA), petition for rev. dismissed, 389 So.2d 1108 (Fla.1980). Thus, I would limit the ordinance’s application to parked vehicles. Furthermore, I would construe the ordinance to prohibit people, whether awake or asleep, from using their vehicle as a dwelling. To fall within this prohibition there must be evidence indicating an intent to reside in the vehicle.

As construed, the ordinance is neither vague nor overbroad. Thus, I would grant the petition for writ of certiorari, reverse the decisions of the circuit court, sitting in its appellate capacity, and the county court and would remand for further proceedings consistent with this opinion.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

In moving for rehearing of City of Pompano Beach v. Capalbo, 455 So.2d 468 (Fla. 4th DCA 1984), the City correctly observes that wherever possible the court should, in preference to invalidating a loosely written statute or ordinance, look to the legislative intent of the enactment and construe the enactment so as to bring it within constitutional bounds. However, a court should not distill legislative intent from pure surmise. Thus, in Parker v. State, 406 So.2d 1089 (Fla.1981) — a case cited by the City — the very language of the statute, and, more particularly, the title of the act under scrutiny, made the legislature’s intentions clear. Another aid to construction of an enactment is often legislative history. In the instant case, however, source material from which the legislative intent of the subject ordinance could be reliably derived does not appear in the record.

The City contends that “or” in the ordinance’s phrase “lodge or sleep” should be read in the conjunctive even though that preposition is ordinarily disjunctive. Then, reasoning from the fact Webster’s Collegiate Dictionary states “sleep” is a synonym of “lodge,” the City suggests use of the word “sleep” did nothing to the operative language of the ordinance, but is mere surplusage.

Concededly, there are circumstances in which legislative intent or context clues make clear that the conjunctive rather than the disjunctive was intended when “or” was used. No such indication was available here. As to the City’s lexicographic argument, it is clearly mistaken. First, the City does not seem to realize that when Webster, in defining an entered word, prints a word in upper case (e.g., “SLEEP” in the entry for “lodge”), the word printed in upper case is a synonym rather than a definition. It is not necessary to dwell at length on the truism that synonyms are not frequently identical in meaning. We can attribute the English language’s remarkable expressiveness in large measure to the fact that it contains great numbers of words that are similar in meaning, but each having its unique shading or nuance. Such words are synonyms.

Regardless of the definition the City quotes, “to lodge” denotes taking up temporary living quarters, which probably entails, but is by no means entirely congruent with, doing some sleeping; whereas “to sleep,” when unqualified by modifiers or context, refers to being in the condition of physiological dormancy animals periodically experience. The dictionary thus furnishes no basis for doubting that use of the entire phrase “lodge or sleep” in the ordinance was quite intentional.

In the instant case, appellee was sleeping in his car, but he was not lodging there. Yet as the officer read the ordinance, Ca-palbo was in violation of it. Nor is there any available information to support the City’s claim that the ordinance applies only to parked conveyances and not to moving ones.

The circuit court’s determination that the City’s ordinance is unconstitutional is not a departure from the essential requirements of law. Neither does the holding work any genuine hardship on the City, which can rehabilitate the ordinance by excising the words “or sleep,” inserting the word “parked” where appropriate, and adequately specifying what conduct is prohibited. The latter may entail defining the word “lodge.” A preamble expressing what interests the City seeks to protect by outlawing the stated conduct would enhance the ordinance’s capacity to resist constitutional attack. By mentioning these possible changes we do not mean to imply making them would guarantee against constitutional infirmity.

To show that proscription of sleeping on or about public property is a valid governmental regulation, the City calls attention to the recent United States Supreme Court decision in Clark v. Community For Creative Non-Violence, — U.S. —, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). In that opinion the Supreme Court held that governmental proscription of camping in temporary shelters erected on public park land adjacent to the White House did not violate freedom of expression under the First Amendment, but fell within the rubric of permissible regulation of time, place or manner. The subject matter of the instant case, both factually and legally, is hardly similar.

This court has not said the City of Pompano Beach may not by proscriptive ordinance prevent “latter day Okies” from camping on public ways, in parking lots, and the like. A problem with the ordinance that figured in this case was that it was written so loosely it reasonably could be read, and was read, as applying to a man napping in his automobile, who was not camping and is obviously not a latter day Okie.

The City has not brought to the court’s attention pertinent law this court has overlooked or misapprehended. Additionally, because the holding in the instant case does not directly conflict with other holdings of this District Court, en banc consideration is unwarranted. Rehearing is denied.

HERSEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge, dissenting.

I dissent for the reasons set forth in my dissent to the initial opinion.


author: ORFINGER, Judge. SHARP, Judge,

text:
    Ormand Bernard GALLON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1622.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 14, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Gallon argues that he was denied a fair trial because of improper comments made by the prosecutor during closing argument. We disagree and affirm.

Gallon was convicted of delivering hashish. The charge against Gallon grew out of an undercover operation by the Orange County Sheriff’s Department and Gallon’s former employer, Hubbard Construction Company, to combat a drug problem inside the company.

Agents Burns and Stevens posed as laborers to make contact with other workers. Agent Burns testified that while posing as a construction worker, he made contact with defendant, an employee on the construction site, who offered to sell Burns a pound of marijuana. Defendant called a phone number at which Burns said he could be reached, and talked with Agent Stevens, who answered when Burns was not there. Stevens and defendant had seven or eight subsequent telephone conversations, the last of which Stevens recorded. Stevens recounted the conversations and the tape of this last conversation was introduced into evidence and played for the jury. In this tape-recorded conversation, defendant and Stevens discussed the arrangements by which the drug buy was to be set up. Agent Stevens corroborated Burns’ testimony and gave details of the drug buy he made from defendant.

Gallon testified that he was set up by the Orange County agents. He claimed he never intended to sell them any drugs and merely called Stevens to satisfy his curiosity. Gallon-further testified that he never provided Stevens with a sample of hashish.

During closing argument the prosecutor made the following statements:

Mr. Leitch [defense counsel] is going to get up there and tell you all that the evidence in the case supports Mr. Gallon’s story. What do you expect him to tell you, he’s Mr. Gallon’s attorney, not going to come in and say, ‘the state proved their case on this one send my client to jail.’
If Mr. Leitch expects you to believe the defense in this case, he expects you to believe in the Easter Bunny.

At this point defense counsel objected and moved for a mistrial, which was denied by the trial court. The trial court agreed that the statement was improper and admonished the prosecutor. Defendant did not request a curative instruction and none was given. This comment is the basis for defendant’s contention that a new trial is warranted.

Clearly the case involved more than a “swearing match” between Agent Stevens and the defendant. The jury had the testimony of Agent Burns and defendant’s own tape recorded conversation. Even if we agree that the prosecutor let himself get carried away when he made the complained of remark, it is clear that he was trying to convey the idea that the defense was incredible in the light of the substantial evidence presented by the State. A prosecutor generally is allowed a considerable degree of latitude in closing argument. Breedlove v. State, 413 So.2d 1 (Fla.1982); Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982); Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980). The control of comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of such discretion is shown. Breedlove at 8.

More recently, in State v. Murray, 443 So.2d 955 (Fla.1984) the defendant claimed reversible error in a statement made by the prosecutor who in closing argument attacked defendant’s credibility with this argument:

I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.

Id. at 956.

That argument appears to be far more inflammatory than the argument made here, yet the supreme court found it to be harmless in the light of the totality of the circumstances. The court held that:

Nevertheless, prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb [v. State] 376 So.2d [230] at 232 [(Fla.1979)]. The appropriate test for whether the error is prejudicial is the “harmless error” rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny. We agree with the recent analysis of the Court in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The supervisory power of the appellate court to reverse a conviction is inappropriate as a remedy when the error is harmless; prosecutorial misconduct or indifference to judicial admonitions is the proper subject of bar disciplinary action. Reversal of the conviction is a separate matter; it is the duty of appellate courts to consider the record as a whole and to ignore harmless error, including most constitutional violations.

In denying defendant’s motion for mistrial based on the alleged impropriety of the prosecutor’s comment, the trial judge commented that defendant was receiving a fair trial. We find nothing in the record to persuade us to the contrary.

The judgment is AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Gallon’s defense was that he was set up by the Orange County undercover agents. He never intended to sell them any drugs, and he merely called Stevens or Burns to satisfy his curiosity. He testified he did not give Stevens a sample of hashish while they were alone together in his house. The linchpin of the case was Gallon’s credibility as opposed to Stevens’.

During closing argument the prosecutor made the following statements:

Mr. Leitch is going to get up there and tell you all that the evidence in the case supports Mr. Gallon’s story. What do you expect him to tell you, he’s Mr. Gallon’s attorney, not going to come in and say, ‘the state proved their case on this one send my client to jail.’
If Mr. Leitch expects you to believe the defense in this case, he expects you to believe in the Easter Bunny.

At this point defense counsel objected and moved for a mistrial, which was denied by the trial court.

Although wide latitude is accorded the prosecutor during closing argument, it is improper for him to express his personal belief as to the credibility of a witness. In this case the prosecutor’s comments also disparaged the integrity of opposing counsel, which may also be grounds for reversal.

Not all improper comments automatically result in reversal. As stated recently by the Florida Supreme Court,

prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless.... The appropriate test for whether the error is prejudicial is the ‘harmless error’ rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny.

State v. Murray, 443 So.2d 955, 956 (Fla.1984). In Chapman, the United States Supreme Court stated that the test for determining whether harmful or reversible error has occurred is “ ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” 386 U.S. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)). The test as explained in the majority opinion is far too stringent. Only the rarest of cases would merit reversal if it were literally applied.

Chapman is consistent with the traditional rule evolved by Florida courts that unless the reviewing court can determine from the record that the improper remarks of the prosecutor did not prejudice the accused, the judgment must be reversed. Pait v. State, 112 So.2d 380 (Fla.1959); see Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The effect of a prosecutor’s remarks must be considered in context with the other circumstances appearing in the record. Coleman v. State, 420 So.2d 354 (Fla. 5th DCA 1982); see also Bayshore v. State, 437 So.2d 198 (Fla. 3d DCA 1983); Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983).

In this case, Gallon’s credibility as opposed to Stevens’ was the key factor. There was no other direct evidence against Gallon. Under these circumstances, the prosecutor’s belittling of defense counsel and his statement which implied that Gallon’s defense was incredible may have influenced the jury’s verdict. In any event, I cannot say beyond a reasonable possibility that the prosecutor’s comments did not contribute to Gallon’s conviction. Coleman. I would reverse.

      . § 893.13(l)(a), Fla.Stat. (1983).

      . Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

      . Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984); see also United States v. Rodriguez, 585 F.2d 1234 (5th Cir.1978), aff'd sub. nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982); Fla.Bar Code Prof.Resp., D.R. 7-106(c)(4).

        .See Adams v. State, 192 So.2d 762 (Fla.1966) (defense counsel "has no business being a lawyer if he hadn’t talked with her”); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982) (“would you buy a used car from this guy?”); Carter v. State, 356 So.2d 67 (Fla. 1st DCA 1978) (“it’s almost criminal sometimes the extent these people go ... to represent these criminals’’); Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977) ("one of the favorite tricks of a defense lawyer”).


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

text:
    Jack GALE, Appellant/Cross Appellee, v. Christiana ROSE, etc., Appellee/Cross Appellant.
    No. 83-542.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 10, 1984.

      Simeon S. Tyler and Ronald R. Findell, Orlando, for appellant/cross-appellee.
    Leon M. Boyajan, II, of Law Offices of J. Russell Hornsby, P.A., Orlando, for appel-lee/cross-appellant.
   FRANK D. UPCHURCH, Jr., Judge.

Jack Gale appeals from an order modifying a final divorce decree. Christiana Rose, the former Mrs. Gale, cross-appeals from the same order.

The divorce judgment was based, in part, on a separation and settlement agreement. Provision 6 of the agreement originally provided:

For the support of the Wife, Husband shall pay alimony in the amount of $800.00 per month. Said $800.00 having been agreed upon the basis of the Husband’s net salary claiming one dependent $1,959.23 per month. In addition to said $800.00 per month alimony, the Wife shall receive 20% of the Husband’s net salary after claiming one dependent which is in excess of $1,959.23 per month. Said alimony shall be payable on the first day of each and every month hereafter beginning the month subsequent to the execution hereof and continuing until the Wife dies, remarries, or otherwise takes up cohabitation, (emphasis added)

The underlined portion was subsequently changed to: “or is otherwise domiciled with a member of the opposite sex.” This change was initialed by both parties. The final judgment of dissolution of marriage, rendered September 1, 1976, basically adopted this provision of the separation and settlement agreement in paragraph 4. This paragraph provides in pertinent part:

The Respondent, JACK GALE, shall pay to the Clerk of the Circuit Court, Orange County, Florida, the sum of $800.00 per month for alimony to the Petitioner; such payments shall commence on the first day of October, 1976, and continue thereafter each month until the Petitioner dies, remarries, or is otherwise domiciled with a member of the opposite sex. (emphasis added)

Paragraph 5 of the final judgment incorporates the separation and settlement agreement.

On September 3, 1982, Rose filed a petition for rule to show cause alleging that Gale had failed to pay alimony and, as of August 18, 1982, was $30,000 in arrears. Gale answered alleging the following:

That the Respondent denies the allegations contained in paragraph two, and alleges that any obligation for the payment of periodic alimony as required by the Final Judgment of Dissolution of Marriage has been discharged because the Petitioner, CHRISTIANA ROSE, formerly TINA PLATT GALE, was domiciled, with a member of the opposite sex, to-wit: CLIFFORD WOLFSEHR at 751 Glenwood, Ashland, Oregon 97502, for a period of time beginning on or about January of 1980, and continuing until on or about May of 1980, and that during this period of time, petitioner’s previous residence, Route 1, Box 56A, Markham Woods Road, Longwood, Florida, was listed for sale and was vacant. The Respondent further alleges that subsequent to the entry of the Final Judgment for Dissolution of Marriage, his net salary after the claim of one dependent, has never exceeded One Thousand Nine Hundred Fifty-Nine Dollars . and Twenty-three cents ($1,959.23) per month.

At the hearing, the parties stipulated that the alimony payments were made up until March, 1980. In its final order, the trial court found that “based on all of the testimony and evidence presented in the hearing that the wife was, in fact, domiciled with a member of the opposite sex under the meaning of the final judgment of dissolution of marriage. The said domicile with member of the opposite sex started in December of 1979.” The court further found that “as a matter of law, the husband was required to make a motion for modification of final judgment in order to be relieved of the alimony payments in this case.” Thus, the court found the husband obligated to pay the wife $24,000.00. The court terminated the husband’s obligation to pay alimony as of September 29, 1982.

Gale contends that the termination of alimony was automatic when any of the conditions specified in the agreement and final judgment occur. While Rose concedes that a judicial determination is not necessary to determine when remarriage, death, or the age of majority of children occurs, she argues that judicial determination is necessary when the event, such as here, is not easily definable. She relies upon Adams v. Adams, 423 So.2d 596 (Fla. 3d DCA 1982), wherein the ex-husband was obligated to support his four children until they reached twenty-one or by further order of the court. The issue before the court was “whether, without filing a motion to modify, [the ex-husband] could unilaterally terminate those payments for two of the children on the ground that they had become self-supporting and emancipated before their twenty-first birthdays.” Id. at 597. The court found that a modification proceeding was indispensable.

Had Gale stopped making alimony payments to Rose based on a condition other than one set out in the final judgment, we would agree that the holding in Adams is applicable. However, Adams is clearly distinguishable. There, the duty of support terminated only upon the occurrence of one of two events: 1) when the children reached the age of twenty-one or 2) by court order. The husband had no right to unilaterally terminate support based on another reason. Here, the alimony payments automatically terminated upon the occurrence of any one of three events: 1) death of the wife; 2) remarriage of the wife; or 3) the wife being domiciled with a member of the opposite sex. Here, the trial court found that Rose had become domiciled with a member of the opposite sex in December of 1979. By operation of the final judgment, Rose’s right to alimony had clearly terminated at that time.

REVERSED.

ORFINGER, J., concurs.

SHARP, J., dissents in part, and concurs in part with opinion.

SHARP, Judge,

dissenting in part; concurring in part.

The provision that alimony would cease if the former wife became “domiciled” with a member of the opposite sex is not the typical terminology used in separation agreements and dissolution decrees. I question whether either party knew what the term meant. Domicile involves the resolution of conflicting facts in tax cases and cases determining personal jurisdiction. Not infrequently a person is found to have had two domiciles for purposes of imposing state taxes. See Peringer v. Franchise Tax Board, 105 Cal.App. 3d 514, 164 Cal. Rptr. 465 (1980); Whittell v. Franchise Tax Board, 231 Cal.App. 2d 278, 41 Cal Rptr. 673 (1964). Whatever domicile means in the post-dissolution context, we are bound by the trial court’s determination that it occurred in this case.

However, I think Judge Schwartz’ opinion in Adams v. Adams, 423 So.2d 596 (Fla.3d DCA 1982), is controlling on whether the alimony payments should be retroactively terminated back to the date the trial judge found the domiciling commenced. The determination in Adams that the two children had become self-supporting and emancipated, thereby ending their father’s obligation to pay child support, was not applied retroactively. As in this case, the event which triggered the termination was not something that one party could easily determine for himself, such as becoming eighteen or remarrying. Determining domicile, like emancipation, is a fact question, and it can only be determined by a court proceeding.

A party under court order to pay alimony or support should not be encouraged to cavalierly ignore the judgment, and, as it were, take the law into his own hands by making the determination that there is a legal reason to depart from the terms of the order. Only the court can make such a ruling, and it may do so only upon the filing of an appropriate pleading and then only prospectively .... to achieve the high purpose of upholding the authority of an existing order of court, it is not too much to require that the issue be submitted for prior judicial determination.

Adams at 598.


author: COBB, Chief Judge. SHARP, Judge,

text:
    Clinton SHEPHARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-774.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Aug. 22, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

The defendant, Shephard, was charged by information with battery upon a law enforcement officer. The information, in pertinent part, reads:

[The State Attorney] CHARGES that CLINTON SHEPHARD, on the 21st day of December, 1982 ... did, in violation of Florida Statutes 784.03 and 784.07, knowingly commit a battery upon a law enforcement officer, CALVIN LEE WACKER, a corrections officer for the Orange County Sheriff’s Department, and in the furtherance thereof, did actually and intentionally touch or strike CALVIN LEE WACKER, against the will of the said CALVIN LEE WACKER, while said officer was engaged in the lawful performance of his duties.

At the trial, there was evidence adduced that Shephard, while in custodial confinement, took a swing at Wacker and missed him. A brief scuffle ensued, resulting in a mild abrasion to Wacker. There was testimony that Wacker saw Shephard leap up and attempt to strike him. Assault is not a necessarily included offense of battery and, in this case, was not alleged so as to be a category two included offense under the Schedule in the Florida Standard Jury Instructions in Criminal Cases. Nevertheless, Shephard was convicted of assault on a law enforcement officer.

The defendant failed to make timely objection to the instructions by the court on assault as a lesser included offense. Therefore, we affirm on authority of Ray v. State, 403 So.2d 956 (Fla.1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Florida Rule of Criminal Procedure 3.390 provides:

(d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

The appellant concedes that his record objection was made after the jury retired. The transcript indicates that the objection was in response to the trial court’s inquiry as to “any objections to the Court’s charge as read.” (Emphasis added.) This does not imply an opportunity afforded to record prior objections; rather, it is a routine question to inquire as to whether either party believes the trial judge has misread the settled instructions. Nothing in the record before this court shows that trial counsel was prevented by the trial judge from registering a timely objection. The burden is on the appellant to preserve his record. Wright v. Coca-Cola Bottling Co. of Miami, 256 So.2d 56 (Fla. 4th DCA 1971).

AFFIRMED.

FRANK D. UPCHURCH, Jr. J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Statutory assault is not a necessarily included offense of statutory battery. Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980). Assault requires proof of “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Battery does not require proof of such an act or threat and well-founded fear, but instead requires proof of the unlawful touching or striking of another person.

In this case, Shephard was charged solely with battery and the information failed to allege any of the required elements of assault. However, the trial judge charged on, and Shephard was convicted of, assault, based upon the judge’s misapprehension that assault is a lesser included offense of battery. Instructing the jury on an offense erroneously thought to be a lesser included of the offense charged is reversible error, provided defense counsel timely objects. Ray v. State, 403 So.2d 956 (Fla.1981); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

I think in this case the objection was timely made, although the record is not as clear as it could be. Defense counsel claimed he objected at the pretrial conference, but the court said it would allow counsel to make their objections later on the record. Immediately after the closing arguments the court gave its instructions and had the jury retire. It then asked counsel, “[N]ow, gentlemen, are there any objections to the Court’s charge as read?” Defense counsel objected to the assault charge and was overruled.

At a later hearing, the court said it often followed the practice of putting objections on the record later, although it did not recall defense counsel’s earlier objection at the instruction conference. However, the fact that the court asked counsel for their objections after the jury retired lends substance to defense counsel’s position. Based on similar facts, other courts have held objections made after the jury retires were timely, Boston v. State, 411 So.2d 1345 (Fla. 1st DCA), petition for review denied, 418 So.2d 1278 (Fla.1982), despite Florida Rule of Criminal Procedure 3.390(d).

I would reverse the judgment against Shephard on due process grounds.

      . The dissent cites Boston v. State, 411 So.2d 1345 (Fla. 1st DCA), review denied, 418 So.2d 1278 (Fla.1982). There, the trial court, after the jury retired, allowed the defendant counsel to place on the record his previous objection to the court’s denial of a requested instruction.

      . § 784.011, Fla.Stat. (1983).

      . § 784.03, Fla.Stat. (1983).


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

text:
    James Dennis ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-930.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 7, 1984.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

James D. Robinson appeals from his conviction for grand theft of a motor vehicle. At issue is whether a statement given by a witness during a police interrogation, which is inconsistent with the witness’ trial testimony, may be introduced at trial as substantive evidence.

At Robinson’s trial, Tim Dolanski testified that he was awakened by his mother at about 2:00 a.m. on the morning of September 2, 1982, and observed two men trying to steal his motorcycle from the sidewalk in front of his house. Dolanski yelled at the men and they took off, one on foot and the other in a truck. The man on foot headed for a cul de sac at the end of the street which was surrounded by water and wetlands. After a few minutes, Dolanski’s mother saw the man walk back past the house toward the other end of the street.

The police were notified and Robinson was stopped while walking down a nearby residential street. Dolanski and his mother, upon viewing Robinson, stated that they thought he was one of the thieves.

William Lesiak was stopped a short time later while driving a truck which matched a description of the one involved in the incident. He was questioned and gave a sworn statement to the police, implicating himself and Robinson in the crime. However, at trial, he testified that while he and Robinson were in the neighborhood when the crime occurred, they did not try to steal the motorcycle. The state, over Robinson’s objection, introduced Lesiak’s sworn statement as substantive evidence.

Section 90.801, Florida Statutes (1983), provides in relevant part as follows:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

Prior inconsistent statements which meet the requirements of this section are now excluded from the definition of hearsay and are admissible as substantive evidence. Diamond v. State, 436 So.2d 364 (Fla. 3d DCA 1983); Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983); State v. Moore, 424 So.2d 920 (Fla. 4th DCA 1983), approved, Moore v. State, 452 So.2d 559 (Fla.1984). The question here is whether Lesiak’s prior inconsistent statement was “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Lesiak did testify at trial and was subject to cross-examination concerning the statement, thus satisfying the first part of the statute.

A statement not given under oath is inadmissible under section 90.801(2)(a) as substantive evidence. Mazzara v. State, 437 So.2d 716 (Fla. 1st DCA 1983) (statement given to FBI agents during interrogation); Starchk v. Wittenberg, 411 So.2d 1000 (Fla. 5th DCA 1982) (statement given during administrative investigation). In the present case, the statement given by Lesiak to the police was sworn to by him and notarized. It was therefore given under oath and Lesiak was subject to the penalty of perjury under section 837.012, Florida Statutes (1983). See generally Schramm v. State, 374 So.2d 1043 (Fla.3d DCA 1979). The remaining question is whether a police interrogation, which is not “a trial, hearing, or ... deposition” comes within the phrase “other proceeding” as used in section 90.801(2)(a).

It is well established that under the statute, “other proceeding” includes grand jury proceedings. Webb v. State; Moore v. State. In addition, in Diamond v. State, the Third District, without specifically addressing this point, held that an inconsistent statement given under oath to a state attorney was admissible as substantive evidence under the statute. Be that as it may, there are no cases in Florida dealing with whether a police interrogation may qualify as an “other proceeding.” However, since the wording of section 90.-801(2)(a) is virtually identical to Federal Rule of Evidence 801(d)(1)(A), reference may be made to cases decided under that rule to assist on this point. See Webb v. State, 426 So.2d at 1034-35.

One of the few cases even remotely on point is United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir.1976). There, the Ninth Circuit held that a tape recorded statement made under oath in an immigration interrogation was admissible as substantive evidence. The court found that an immigration interrogation was an “other proceeding” under the federal rule. Its conclusion derived from the fact that Congress intended the term “other proceeding” to be open-ended and not restricted to grand jury proceedings and that immigration interrogations bear many similarities to grand jury proceedings. The court did note, however, that “[w]e do not hold, as the question is not before us, that every sworn statement given during a police station interrogation would be admissible.” 537 F.2d at 1058.

Recently, the supreme court of the state of Washington, in State v. Smith, 97 Wash.2d 856, 651 P.2d 207 (1982), addressed the issue of admissibility of prior inconsistent statements which are given to the police. That case involved a written statement given by an assault victim to the police wherein she implicated the defendant as her assailant. The statement was signed under oath with penalty of perjury before a notary. At trial, however, the victim claimed that her assailant was someone else. The supreme court held that the written statement was admissible as substantive evidence to identify the perpetrator of the assault. In considering whether the statement was given “at a trial, hearing, or other proceeding”, the court declared:

We likewise decline to answer the issue broadly. We do not interpret the rule to always exclude or always admit such affidavits. The purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key. In many cases, the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness. One commentator has addressed the question of admissibility as follows:
Inquiry into what other statements are encompassed by the Rule should be informed by the two purposes Congress had in mind in narrowing the provision originally proposed by the Court. The first was to remove doubt as to the making of the prior statement. ... The second purpose was to provide at least the minimal guarantees of truthfulness which an oath and the circumstance of a formalized proceeding tend to assure. Clearly, however, the prior statement need not have been subject to cross-examination at the time made, for Congress was satisfied to rely upon delayed cross-examination of the declarant at trial to expose error or falsehood in the statement.
(Footnotes omitted.) D. Louisell & C.
Muller, supra § 419, at 169-71.
651 P.2d at 210 [footnotes omitted].

In considering the issue of reliability, the court found that there was no question that the statement was made since the victim admitted at trial to making it and that minimal guarantees of truthfulness existed since the statement was attested to before a notary, under oath and subject to penalty for perjury. In addition, the court noted that the victim wrote out the statement in her own words.

Unlike a trial, hearing, grand jury proceeding or even immigration interrogation, a formalized proceeding is not presented in a police interrogation context and it is this, along with the oath, which tends to assure the trustworthiness of the statement. It is difficult to believe that Congress, in enacting Rule 801(d)(1)(A) or our legislature, in passing section 90.-801(2)(a) intended police questioning, such as occurred here, to be equated with a trial or grand jury proceeding.

While under some circumstances, as in State v. Smith, a police interrogation may qualify as an “other proceeding”, such circumstances are not present here. Lesiak was detained by the police for questioning, was apparently promised leniency and then gave his statement implicating Robinson. The record reveals that a police officer helped Lesiak write the statement and Les-iak claimed at trial that the contents of the statement were dictated to him.

Given the setting under which the statement was made and its questionable reliability, we conclude that the prior inconsistent statement did not comply with section 90.801(2)(a) and hence was not admissible as substantive evidence. We therefore reverse and remand for a new trial.

REVERSED and REMANDED for new trial.

COBB, C.J., and ORFINGER, J., concur.

      . Section 837.012(1) entitled "Perjury when not in an official proceeding" provides as follows:

        Whoever makes a false statement, which he does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s.775.082, s.775083, or s.775084.

      .It should be noted that in Diamond v. State, the prior statement was one which exculpated rather than inculpated the defendant who tried unsuccessfully at trial to have it admitted as substantive evidence.

      . The court noted that both immigration and grand jury proceedings are investigatory, ex parte, inquisitive, sworn, held before an officer other than the arresting officer, recorded, and held in circumstances of some legal formality. 537 F.2d at 1058.

      . Washington’s rule regarding admissibility of prior inconsistent statements was taken verbatim from Federal Rule of Evidence 801(d)(1)(A) and hence is virtually identical to section 90.-801(2)(a).


author: PER CURIAM. COWART, Judge,

text:
    Gary Lee GRUNEWALD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1143.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 14, 1984.
    Andrew W. Graham and Karen B. McLendon, of Reinman, Harrell, Silber-horn, Moule & Graham, P.A., Melbourne, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Tried on an information charging only the minimal facts alleging an aggravated battery (§ 784.045(l)(b), Fla.Stat.), Grüne-wald was convicted of the supposed lesser included offense of improper exhibition of a dangerous weapon or firearm, a violation of section 790.10, Florida Statutes. The improper exhibition offense was apparently assumed to be, and treated as, a lesser included offense of the aggravated battery charge because the schedule of lesser included offense adopted by the Supreme Court shows the improper exhibition offense as a Category Two lesser included offense of aggravated battery. The charging document in this case did not allege that (1) the defendant did “exhibit” a firearm, or (2) that the defendant exhibited a firearm “in a rude, careless, angry or threatening manner,” or (3) that the defendant exhibited the firearm “in the presence of one or more persons,” all three allegations being essential to allege a violation of section 790.10, Florida Statutes.

I dissent because I continue to believe that it is a violation of constitutional due process to convict a defendant of a crime not charged and that such a violation constitutes a fundamental error not subject to implied waiver as a result of the failure of defense counsel to effectively assert the right or object to the violation before the trial court. See the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), and in W.J.W. v. State, 446 So.2d 248 (Fla. 5th DCA 1984). As to the problem with the schedule of permissible lesser included offenses, see note 39 to the dissent in Baker v. State, 425 So.2d 36, at 57 (Fla. 5th DCA 1982), and note 3 to Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983), and the dissenting opinion to State v. Baker, Baker v. State, 456 So.2d 419 (Fla.1984).

      . See In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 599 (Fla.1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).