text:
    STATE of Florida, Appellant, v. Elijah William HALL, Jr., Appellee.
    No. 83-140.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Jim Smith, Atty. Gen., Tallahassee, M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Michael E. Raiden, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Waters, 436 So.2d 66 (Fla.1983).

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


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    A.B., A child, Appellant, v. STATE of Florida, Appellee.
    No. 83-315.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

This case involves application of the reasonable suspicion standard to a search by a school official of a student at a public school. Appellant, a juvenile, appeals an order denying her motion to suppress marijuana found when a school official searched appellant’s purse. We reverse.

A teacher at appellant’s high school overheard part of a conversation in the school hallway. The statement heard was “[Appellant] has got something.” The teacher related what he had overheard to another teacher, who apparently worked with appellant’s grade level. The second teacher took appellant to the dean’s office, looked in appellant’s purse and found some marijuana.

A petition for adjudication of delinquency was filed charging appellant with possession of less than 20 grams of cannabis. Appellant filed a motion to suppress the seized contraband, alleging that the search of the purse was illegal. The motion was denied.

In Nelson v. State, 319 So.2d 154 (Fla. 2d DCA 1975), this court adopted the reasonable suspicion standard to be applied to searches and seizures by school officials at a public school. In State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983), the First District Court of Appeal outlined a number of factors which can be considered in determining whether a reasonable suspicion to search exists under those circumstances. The First District listed the following factors:

(a) consideration of the child’s age, history and record in school;
(b) the prevalence and seriousness of the problem in the school to which the search was directed;
(c) the exigencies in making a search without delay and further investigation;
(d) the probative value and reliability of the information used as a justification for the search; and
(e) the particular teacher or school official’s experience with the student.

As noted in D.T.W., this list is merely a starting point in determining whether reasonable suspicion to search exists and is not a complete and exhaustive list of all possible considerations. We would add to the list: experience of the involved school officials with the type of problem to which the search was directed.

In the case before us, the record contains virtually no information bearing upon the foregoing factors. In particular, the reliability of the information used to justify the search cannot be determined. The identity of the participants in the overheard conversation was unknown, and there is no evidence as to the existence or prevalence of a drug problem at the school or as to the experience of either teacher in dealing with such a problem. There is little or no probative value to a statement that a student “has got something,” heard out of context and with no background information. The “something” could be anything from a class assignment to a disease.

The only evidence offered to show that the teacher who heard the statement had a basis for a suspicion was his testimony that he had been a teacher for a long time, and “sometimes you hear certain things and you just know. I felt something was wrong.” We find the record in this case insufficient to show that the school officials had a reasonable suspicion allowing them to search appellant’s purse. Appellant’s motion to suppress should have been granted.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


author: GRIMES, Judge.

text:
    Edward BEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-807.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Edward Ben appeals his conviction and sentence for robbery after the trial court denied his motion to withdraw his nolo con-tendere plea.

Pursuant to a plea bargain, Ben pled nolo contendere to a charge of robbery, reserving his right to appeal a motion to dismiss. At that time his counsel represented to the court that Ben’s only prior conviction had been for a traffic violation. The plea bargain contemplated that Ben could receive any sentence from probation up to two years in prison. The court withheld adjudication of guilt, and then ordered a presen-tence investigation.

The subsequent PSI revealed that Ben was also known as Edward Lee Gallon and that he had a prior felony conviction under the Gallon name. At sentencing his counsel stated that he had not previously been aware of Ben’s second identity or record. Nevertheless, counsel requested that the court either abide by its original disposition of the case or else permit Ben to withdraw his plea. The court denied the motion on the basis that Ben had attempted to perpetrate a fraud upon the court. The court then sentenced Ben to ten years imprisonment as an habitual offender.

This case is controlled by our decision in Coleman v. State, 433 So.2d 627 (Fla. 2d DCA 1983), which requires the court to permit even a fraudulent defendant to withdraw his plea if it determines not to follow the plea bargain. In Coleman we did suggest two alternatives for dealing with the problem of material misrepresentations by a defendant or his counsel in a plea bargain situation. Although we do not condone Ben’s behavior in any manner, he should have been given the opportunity to withdraw his plea.

In light of our disposition on point I, we need not reach Ben’s other issue.

REVERSED and REMANDED with directions to offer Ben the opportunity to withdraw his plea.

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


author: CAMPBELL, Judge.

text:
    STATE of Florida, Petitioner, v. Donald McSWAIN, Respondent.
    No. 83-1765.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and David S. Bergdoll, Asst. Atty. Gen., Bartow, for petitioner.
    Jack T. Edmund and Richard D. Mars, Bartow, for respondent.
   CAMPBELL, Judge.

The state has filed its petition for writ of certiorari asking that this court exercise its jurisdiction to reverse an order of the trial judge which denied the state’s motion to compel testimony after an offer of immunity pursuant to section 914.04, Florida Statutes (1982). The respondent had been convicted of trafficking in cannabis and criminal conspiracy to traffic in cannabis. On appeal, his convictions were affirmed. The state then subpoenaed respondent for investigations of other individuals who might have been involved in the offense for which he had been convicted. He refused to answer questions concerning the names of other individuals who might have been involved, even though he was granted immunity pursuant to section 914.04. Respondent argued to the trial court that “use immunity,” provided by section 914.04, was not sufficient to protect his Fifth Amendment rights against self-incrimination. Apparently, relying on an erroneous interpretation of State ex rel. Hough v. Popper, 287 So.2d 282 (Fla.1973), respondent argued that if he revealed names of other individuals, it was possible that they, in turn, might furnish the state with other independent information that might implicate respondent in other offenses from which he would not be immune from prosecution. The state argues to the contrary, citing in support the “derivative use” immunity discussed by Professor Wigmore, Evidence § 2283 (McNaughton rev. 1961), and approved by the Ohio Supreme Court when construing their immunity statute in State v. Sinito, 43 Ohio St.2d 98, 330 N.E.2d 896 (1975).

The United States Supreme Court has also, at length, discussed the scope of immunity granted by a number of federal statutes, most notably in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Albertson v. Subversive Activities Control Board, 382 U.S. 70, 80 S.Ct. 194, 15 L.Ed.2d 165 (1965); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

The issue to be determined in each instance is whether the immunity granted by statute is coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination. It seems clear to us that had the Florida statute been the subject of scrutiny by the United States Supreme Court in the eases cited above, it would have been held not to grant “derivative use” immunity and, therefore, not equal in scope with the Fifth Amendment. The wording of the section 914.04, in regard to the immunity granted, is virtually the same as that disapproved in Counselman v. Hitchcock, and not as broad as that approved by the Ohio Supreme Court in State v. Sinito.

Ohio’s statute in granting immunity refers to “any prosecution based on his testimony” in regard to the immunity that is extended to a witness. Section 914.04 refers to “testimony so given or evidence so produced.” We are urged to construe the “evidence so produced” in section 914.04 as being as broad as that in Ohio’s statute and as interpreted by the Ohio Supreme Court. The “evidence so produced” in section 914.-04, to us, clearly refers to the earlier provision in the statute providing that a witness is not excused from “producing any book, paper, or other document” and has nothing to do with derivative information from which “derivative immunity” could be inferred.

However, we are not required to strictly construe section 914.04 as apparently would the United States Supreme Court, or even perhaps the Ohio Supreme Court. Regardless of the narrowness of the words employed in section 914.04, the Florida Supreme Court has already, as well it could, broadly construed that language to grant “derivative use” immunity in Popper. In 1973, when Popper was decided, section 914.04 provided for both “transactional immunity” and “use immunity.” By chapter 82-393, Laws of Florida (1982), the Florida legislature amended section 914.04 to delete “transactional immunity.” Except for that deletion, chapter 82-393 made no changes in section 914.04, and it remained exactly the same insofar as it provided for “use immunity.”

Our supreme court in Popper said in regard to the “use immunity” provision of section 914.04, Florida Statutes (1973):

For this separate offense, the witness may be prosecuted; the statute, however, forbids the use of his compelled testimony in this prosecution even to establish the fact (innocent in and of itself) of ownership of the vehicle. It is the function of the use immunity in such a situation to provide the immunity necessary to safeguard the constitutional privilege against self-incrimination as to separate facts of an independent criminal transaction. The testimony given as to such incidental facts may not be used against the witness, but he may be prosecuted for this independent criminal transaction if it can be proved without the use of the compelled testimony. This is where the State’s contended “independent source” of proof comes in. Such proof, however, must be of the separate, independent transaction.

Thus, our supreme court in Popper has declared section 914.04 to grant “derivative use” immunity and we, therefore, adhere to that precedent. The Third District Court of Appeal has reached the same conclusion in Novo v. Scott, 438 So.2d 477 (Fla.3d DCA 1983); Cf. Alford v. Cornelius, 380 So.2d 1183 (Fla. 5th DCA 1980).

Thus, if respondent’s compelled testimony leads to evidence that he committed another crime, he could not be prosecuted for that crime unless the prosecution could affirmatively “prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665.

Accordingly, the petition for writ of cer-tiorari is granted and the order of the trial judge is quashed.

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

      . 914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him. — No person who has been duly served with a subpoena or subpoena duces tecum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against him upon any criminal investigation or proceeding.

      . R.C. 2945.44 states:
      Whenever the testimony or other evidence in possession of a person is necessary to a full and complete investigation of any criminal conduct, or to secure or successfully maintain and conclude a prosecution, and when in such case it appears in the interests of justice to do so, a judge of the court of common pleas or court of appeals, or a justice of the supreme court may grant to such person immunity from any prosecution based on his testimony or other evidence given by him, other than a prosecution for perjury or tampering with evidence.


author: ROBERT P. SMITH, Jr., Judge. WENTWORTH, Judge,

text:
    Willie WATTS, Appellant, v. STATE of Florida, Appellee.
    No. AN-15.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.
    Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, Tallahasee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Watts, a Union Correctional Institution inmate, was charged and tried on two counts of introducing into, or possessing, or attempting to take from the institution a contraband weapon, sec. 944.47(l)(a), (c), Fla.Stat. (1981). On evidence that he was found simultaneously in possession of two prisonmade knives, Watts was adjudged guilty and concurrently sentenced on two counts of possession. On appeal he complains that two convictions are one too many. We agree.

This issue is purely one of statutory interpretation. Since Watts’ possession of knife a was an element of proof separable from his possession of knife b, there is no question of his having twice been placed in jeopardy for the same offense. Neither the fifth amendment of the United States Constitution nor article I, section 9 of the Florida Constitution forbids a double prosecution for conduct that is conceptually divisible into two offenses, each distinguished by a fact or element not present in the other. Albernaz v. State, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Bell v. State, 437 So.2d 1057 (Fla.1983); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983). Albernaz went so far as to say that finding a legislative purpose to make two offenses out of divisible elements in the defendant’s conduct — a purpose typically but not necessarily evidenced by two separate statutes— concludes the constitutional inquiry. Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145, 67 L.Ed.2d at 285:

Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.

Our Supreme Court’s recent Bell decision demonstrates that double jeopardy vocabulary is yet necessary to explain why the legislature may not require, even by two statutes distinctively numbered or titled, two judgments for offenses one of which is necessarily included in the other. “[Mjerely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical.” 437 So.2d at 1058. But we are not concerned here with two statutes or, indeed, with two differently-named offenses, such as were the subject of Bell’s illuminating discussion. Possessing one knife obviously does not include possessing another. Our present task is to determine whether this single statute makes one offense or two out of the defendant’s simultaneous possession, shown by coterminous proof, of two contraband knives. The appropriate question is not whether the legislature may constitutionally require the imposition of two judgments, but whether the legislature has done so.

Nor is the question how many sentences may be imposed upon two lawful judgments in consequence of the Florida legislature having rescinded, save for lesser included offenses, the single transaction rule. That judicial rule previously allowed sentencing for only the most serious of adjudicated offenses committed in a single transaction. Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). Section 775.021(4), Florida Statutes (1981), has now “abrogated the single transaction rule,” Borges, 415 So.2d at 1266, and requires separate sentences upon properly adjudicated offenses within “one criminal transaction or episode” if the judgments are based on “two or more criminal statutes.” Even absent Bell’s double jeopardy questions, determining the appropriateness of two or more sentences can be difficult when the properly adjudicated offenses are catalogued in subsections of a single statute. See Thomas v. State, 405 So.2d 1015 (Fla. 1st DCA 1981), and Getz v. State, 428 So.2d 254 (Fla. 1st DCA 1982). But the convictions here, for Watts’ simultaneous possession of two prisonmade knives, are unambiguously founded upon the same criminal statute, section 944.47(l)(c). For two reasons, therefore, section 775.021(4) cannot control whether Watts’ conduct should be considered twice a violation of section 944.47(l)(c): first, because section 775.021(4) does not come into, play unless judgments are properly entered “for violation of two or more criminal statutes”; and second, because section 775.021(4) does not say, except by excluding sentences for lesser included offenses, how many judgments are to be entered for conduct that may be conceived, but need not be, as violating the same statute twice.

The question here, similar to that in Hearn v. State, 55 So.2d 559 (Fla.1951), and identical to that in State v. Grappin, 427 So.2d 760, 761, n. 3 (Fla. 2d DCA 1982), is whether the substantive statute, section 944.47(l)(c), must be interpreted as making Watts’ simultaneous possession of two contraband knives two units of prosecution despite the absence of time or space differences in his possession, or in its proof, that in common understanding would distinguish his possession of one knife from his possession of the other. We say “must be interpreted” advisedly. A strict reading of the statute is required both by “the well-recognized principle of lenity,” which in doubtful cases avoids “turning a single transaction into multiple offenses,” and by the rule of statutory construction enacted by section 775.021(1):

The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

In defining certain other offenses the legislature has satisfactorily dealt with this issue by graduating the severity of the offense, conceived as one, according to the number of articles unlawfully possessed, §§ 831.08, .13, .15, .16, Fla.Stat. (1981) (10 or more forged bank bills or notes, etc., five or more uncurrent bank bills or notes, 10 or more, or less than 10, counterfeit coins); or according to the aggregated value of the affected property, §§ 812.012(9)(c), .014(2) (theft); or according to the weight of the contraband substance, §§ 893.13, .135 (possession of or trafficking in controlled substances). The legislature enacted no similar quantity-conscious element in the conduct proscribed by section 944.47(l)(c), but simply made it “unlawful for any inmate . .. to be in actual or constructive possession,” without authorization, of “[a]ny firearm or weapon of any kind or any explosive substance.” Supra, n. 1.

To this problem of statutory interpretation the courts have brought various analy-ses. Hearn, considering the defendant’s simultaneous larceny of 10 cows and two calves, held there was one larceny though one cow was Adkinson’s property and the other animals were Ganey’s. Conceiving of. the issue as one of double jeopardy rather than one of statutory interpretation— Hearn long antedated the United States Supreme Court decision in Albernaz — the court held that Hearn could not be prosecuted for stealing Ganey’s cattle after having been convicted for stealing Adkinson’s. There was but one offense “against the public,” the court stated, and it was inconsequential that the cattle of two owners were taken. Three justices dissented without writing, so indicating, apparently, their dissatisfaction with turning the decision on the perception that “the offense is the same whether the property stolen belongs to one person or several persons jointly or to several persons each owning separate parts thereof.” 55 So.2d at 561.

The Hearn court did not discuss the question more analogous to that presented here: whether Hearn’s simultaneous theft or twelve head of cattle constituted one or twelve offenses under a statute proscribing “larceny by stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer or calf, the property of another.” Sec. 811.11, Fla. Stat. (1955).

Decisions since Hearn, touching the issue before us, were gathered in Judge Cowart’s opinion for the court in Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981). They include Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974); Avilia v. State, 278 So.2d 298 (Fla. 4th DCA 1973), and Russell v. State, 107 So.2d 801 (Fla. 2d DCA 1958). In Hill the court agreed with appellant’s contention that two robbery counts “charged only a single offense” and that “one of the counts must be reversed,” although two victims were simultaneously put in fear in the supermarket holdup. Though apparently asked to do so, the court did not reverse one of the judgments, but “remanded for resen-tencing with directions to treat count one and two as only a single offense.” 293 So.2d at 80.

In Avilia, the court precisely addressed the separate judgments of guilt that were entered upon four counts of simultaneously receiving stolen property, divided by the information into “(Count 1) airline tickets of Hart Travel Agency, Inc., (Count 2) travelers checks of Travel Plans, Inc., (Count 3) checks of GAC Finance Corporation of Miami, and (Count 4) check of Atlantic Loan Company of North Dade.” The court found that “since there is only one offense there can be only one adjudication and one sentence,” 278 So.2d at 299, and remanded for that disposition.

Similarly in Russell, the court directed that “a judgment and sentence for the single offense of grand larceny” be entered for the defendant’s simultaneous theft, from the same person, of one briefcase containing unmounted diamonds and a second briefcase containing diamond mounted rings. And in Drakes the court found that the simultaneous theft of disparate property — unspecified items aggregating a value of $100 or more, and a firearm — constituted “a single theft offense,” though the defendant was found to have waived his “double jeopardy defense” by not moving to dismiss the information.

Each of these decisions on larceny and robbery elaborates Hearn’s concept that “the offense is the same whether the property stolen belongs to one person or several persons . .. . ” Hill applied the unitary larceny concept though two victims were robbed simultaneously; Avilia and Russell said that in a prosecution under a single statute for a simultaneous theft, the offense is not multiplied by the number of logically separable articles taken; and Drakes adhered to that concept though the property stolen was classified under two subsections, 1 and 3, of section 812.014(2)(b), proscribing larceny. The Drakes court, disposing of the case on another ground, did not discuss, as this court did later in Thomas, whether subsections 1 and 3 of section 812.014(2)(b) “each contain[s] a complete description of the offense, together with the applicable punishment,” so constituting “two or more criminal statutes” within the meaning and application of section 775.-021(4), supra n. 2, requiring separate sentences for “violation[s] of two or more criminal statutes.” Thomas, 405 So.2d at 1016, 1017.

On other occasions the courts have searched legislative history for a hidden purpose to make one or multiple offenses out of conduct having some plural nature or effect. That method of attributing purpose to a criminal statute, on such an issue as this, has not been particularly fruitful.

For example, in Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199, 203 (1958), the Supreme Court asked of a federal statute: “Did Congress mean that' the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act?” The Court found “[t]he history is scant, consisting largely of an Attorney General’s letter recommending the passage of legislation ....” 358 U.S. at 174-75, 79 S.Ct. at 212-13, 3 L.Ed.2d at 203.

The very text of 18 U.S.C. § 254 suggested that searching the legislative history would be inconclusive, for the text prohibited both resisting an officer in the performance of his duties and assaulting an officer with a deadly weapon. Though for sentencing purposes the statute differentiated between slamming a door against a pursuing officer and shooting him with a shotgun, in the matter of one or multiple judgments the text showed no sensitivity to the presumably greater offense of shooting several officers with one blast and the presumably lesser offense of slamming a door against several. The Court stated:

We cannot find clearly from the statute, even when read in the light of its legislative history, that the Congress intended that the person locking the door might commit as many crimes as there are officers denied entry. And if we cannot find this meaning in the supposed case, we cannot find that Congress intended that a single act of assault affecting two officers constitutes two offenses under the statute. [358 U.S. at 176, 79 S.Ct. at 213, 3 L.Ed.2d at 204.]

On other occasions courts have been more sanguine about the meaning of legislative history. In United States v. Davis, 656 F.2d 153 (5th Cir.1981), for example, the court considered “whether Congress intended to allow consecutive sentencing for a simultaneous possession of two types of drugs,” under 21 U.S.C. § 841(a)(1). In Florida, that precise question presumably would be answered by reference to section 775.021(4), supra n. 2, and in this court by the Thomas inquiry, 405 So.2d 1017, whether the offenses are proscribed by “two or more criminal statutes.” The problem of separate sentencing so discussed in Davis, absent a statute such as 775.021(4), is conceptually not different from the question here concerning the singularity or duality of offenses. In Davis the Fifth Circuit was persuaded by a House committee report that 21 U.S.C. § 841(a)(1) was “designed to deal in a comprehensive fashion with the growing menace of drug abuse in the United States,” giving “maximum flexibility to judges, permitting them to tailor the period of imprisonment, as well as the fine, to the circumstances involved in the individual case.” Davis, 656 F.2d at 159. On the strength of this document the court declared that a statute making it unlawful to “possess with intent to manufacture, distribute, or dispense, a controlled substance,” intended “to provide trial judges with maximum flexibility in sentencing, and therefore intended to permit separate punishment for possession of each controlled substance,” so making simultaneous possession of marijuana and quaaludes “two acts which violate one statute,” requiring separate sentences. 656 F.2d at 160.

In State v. Grappin, 427 So.2d 760 (Fla. 2d DCA 1983), our colleagues of the Second District held that the simultaneous theft of five firearms constituted five offenses under section 812.014(2)(b), Fla.Stat. (1979), describing second degree grand theft, a third degree felony. The court found decisive evidence of legislative purpose in the statute’s reference to “a” firearm, instead of to “any” firearm, in listing items the theft of which constitutes that particular offense. The statute enforced in Hearn, said Grappin n. 4, “prohibited the larceny of ‘any horse ... cow ... or calf,’ ” and so was distinguishable:

The article “any,” unlike the article “a,” does not necessarily exclude any part of plural activity. Thus, the article “any,” unlike the article “a,” does not clearly express the allowable unit of prosecution in singular terms....
We do not believe that the legislature inadvertently inserted different articles in parts 2 through 4 and 5 through 7 [of the statute quoted in Grappin, 427 So.2d at 761].... In other words, its use of different articles signifies its intent, with respect to simultaneously pilfered firearms (or testamentary instruments or motor vehicles), to treat separately each stick in the bundle. [427 So.2d at 763.]

Grappin went on to find elsewhere in Florida Statutes a comparative importance given to firearms, testamentary papers, and motor vehicles, the objects described in section 812.014(2)(b) with the article “a,” and relatively less importance attributed to cows, horses and fire extinguishers, described by the article “any.” Thus the court found that stealing five firearms simultaneously was stealing “a firearm” five times, producing five units of prosecution.

Grappin ⅛ analysis presumably would produce but one unit of prosecution for Watts’ simultaneous possession of two knives, for section 944.47, Fla.Stat. (1981), supra n. 1, prohibits the possession within a correctional institution of “any of the following articles,” including “Any firearm or weapon of any kind” and various other “any” items. We choose not to place our decision upon Grappin ⅛ rationale attributing decisive meaning to the choice of “a” or “any.”

Grappin, it would seem, is unduly confident about what legislation means by choosing “a” or “any.” Quite aside from the fact that the legislature’s first declaration in Florida Statutes is that “[the] singular includes the plural and vice versa,” § 1.01(1), Fla.Stat. (1981), there are other problems. If as Grappin says the importance given to firearm control elsewhere in Florida Statutes confirms that multiple units of prosecution in a single theft are intended by describing “a firearm” in 812.014(2)(b), how shall we account for that attributed importance in the single unit of prosecution yielded by “any firearm or weapon of any kind” in 944.47? Is it to be supposed that, through this choice of “any” over “a,” the legislature expressed less concern over the possession of multiple unauthorized firearms in a prison than over the theft of multiple firearms in society at large?

“Any” has variable uses in the language, as Grappin notes in withholding significance from its use in subsection 7 of 812.-014(2)(b), “Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.” As the court said, “it is factually impossible to commit simultaneous violations of part 7.” 427 So.2d at 763 n. 5. It is rather less clear why Grappin would deduce from “any” a single unit of prosecution in the simultaneous theft of several cows. The statute at hand did not speak of “any cow,” as did the statute in Hearn, see Grap-pin at n. 4, rather it spoke of “any member of the genus Bos (cattle) or ■ the genus Equus (horse), or any hybrid of the specified genera.” Sec. 812.014(2)(b)5. It is not altogether clear why reference to “any member” of the genus is not an equivalent reference, in Grappin ⅛ analysis, to “a cow,” “a steer,” or “a bull.” Other uses of “any,” arguably variant from Grappin ⅛ attribution of a single unit of prosecution, appear in sections 787.03(1) (interference with custody of “any child”), 790.05 (carrying “any pistol” without a license), 790.23(1) (a felon possessing “any firearm”), 806.01 (burning “any dwelling”), and so on.

Without detracting from the seriousness of Grappin ⅛ inquiry, we conclude that it is impossible to derive multiple units of prosecution, or single units, from the legislature’s choice of “a” or “any” in listing items in a criminal statute.

We think rather that Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981) takes the preferred approach, emphasizing “chronological and spatial relationships” in determining whether a multifaceted offense is a single prosecution unit, because simultaneous in time and space, or multiple, because not simultaneous. There the Fifth District emphasized how robbing a certain victim was committed simultaneously with stealing his auto, and so judged conceptually separable offenses as nevertheless a single prosecution unit.

Castleberry’s way with “chronological and spatial relationships” does not make all things simple; indeed, one might quarrel that Castleberry robbed his victims only of their car keys, not the car taken subsequently, and that the robbery was complete when the car was stolen even though “the victims remained restrained [by Castleberry’s ropes, not otherwise by Castleberry] and in far.” 402 So.2d at 1232. So to Castleberry’s analysis we would add only the further thought, developed earlier here, that distinguishing single from multiple units of prosecution is a matter for the legislature, not for adroit prosecutors or for wondering courts. Legislation defining crimes must therefore be read as strictly and as narrowly as reasonably possible, avoiding multiple charges for coterminous conduct unless the legislature’s contrary purpose is clear — clearer, say, than in Grap-pin. This skeptical view of multiple prosecutions merely reinforces traditional judicial attitudes toward the construction of criminal statutes. See, e.g., Earnest v. State, 351 So.2d 957 (Fla.1977); State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966); Whitehurst v. State, 105 Fla. 574, 141 So. 878 (1932); Ex parte Bailey, 39 Fla. 734, 23 So. 552 (1897).

Viewing Watts’ convictions in this light, his possession of two knives was simultaneous in time and essentially simultaneous in space. Whether Watts might have possessed the knives separately in some sense we cannot say without undue speculation, for the prosecutor’s proof of Watts’ double possession was coterminous in both time and space. ■ Watts was therefore subject to a single prosecution, and was vulnerable to but one judgment.

The judgment on count one is AFFIRMED; the judgment on count two is REVERSED.

ZEHMER, J., concurs.

WENTWORTH, J., concurs with opinion.

WENTWORTH, Judge,

concurring.

Although I agree with the logic and law on which our disposition of this case rests, I would emphasize that legislative attention to the cited statute is clearly in order. It should express unambiguously the intention that “possession of any ... weapon” means (as we here say it “must be construed”) the same as “possession of any ... weapon [or weapons].” Alternatively, some further distinction might be expressed if the intent is not that a prisoner’s possession of a hundred knives in a mattress at one time and place should be equated precisely with the possession of one such weapon, so far as concerns the number of offenses chargeable.

      . § 944.47, Fla.Stat. (1981) provides in relevant part:
      (l)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

      5. Any firearm or weapon of any kind or any explosive substance.

      (c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution. '
      (2) Whoever violates any provision of this section is guilty of a felony of the third degree ....

      . § 775.021(4), Fla.Stat. (1981), provides:
      (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

      . The multifaceted information filed against Watts serves to illustrate how the number of judgments may increase geometrically depending on whether each of Watts’ two knives is considered a separate unit of prosecution.
      Each of the two counts against Watts charged alternatively that he possessed a contraband knife, in violation of subsection (l)(c), or that he “did unlawfully introduce [a knife] into or upon ... or take or attempt to take [a knife] from the grounds” of the institution, in violation of (l)(a). Though here the proof was of simple possession only, other facts may have supported a prosecution both for possession of a knife, subsection (l)(c), and for attempting to take it, let us say through another’s cooperation, from the grounds, subsection (l)(a). If circumstances can be conceived that would make Watts’ possession of the knife independent of his attempt to smuggle it out of the prison, not a lesser included offense within the double jeopardy proscription expounded by Bell, then we might here be confronting not two but four judgments of conviction. We should then be required to determine both whether each knife represented an allowable unit of prosecution and whether the conduct in respect to that knife was singly or doubly proscribed by subsections (l)(a) and (l)(c). Though Thomas analyzed separate subsections of the same statute only to determine the propriety of two sentences, not that of two judgments, the analysis required would seem to be the same, absent double jeopardy considerations, on the question of two judgments in respect to each knife.

        .Bell, 437 So.2d at 1058:
      As we have stated before, the explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed. [Citing Borges v. State, 415 So.2d 1265, 1267 (Fla.1982).] (Emphasis added.)

      . The term “unit of prosecution” gained currency through Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905, 910 (1955) (finding, in respect to one interstate transportation of two women for prostitution, one violation of 18 U.S.C. § 2421: the statute did not “make each stick in a faggot a single criminal unit”); and it was introduced in Florida by State v. Grappin, supra, 427 So.2d at 672 (finding, in respect to one theft of five firearms, five violations of Florida’s § 812.014: the statute did “treat separately each stick in the bundle.”)

      . Grappin, supra, 427 So.2d at 762.

      . The statute, quoted in n. 1 of Justice Brennan’s opinion for the Court, does impose a greater sentence for using a deadly weapon, but that does not answer the question of whether two judgments and two aggravated sentences are appropriate when by a single shot two officers were wounded.


author: PER CURIAM.

text:
    John L. BLOOME, Appellant, v. STATE of Florida, Appellee.
    No. 82-1076.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Waters, 436 So.2d 66 (Fla.1983); State v. Rozier and State v. Young, 436 So.2d 73 (Fla.1983).

COBB, SHARP and COWART, JJ., concur.


text:
    Kevin P. QUIGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-490.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

DISMISSED. Robinson v. State, 373 So.2d 898 (Fla.1979).

COBB, SHARP and COWART, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    Joe Nathan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1731.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Channing E. Brackey of Brackey, Finkel-stein & Dallas, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr., Associate Judge.

In Williams v. State, 351 So.2d 433 (Fla. 4th DCA 1977), this court affirmed appellant’s conviction of sexual battery. Within the respective judicial systems of most civilized countries of the free world, that would have been the end of the matter. Here it was only the end of the first round.

The second round commenced on June 1, 1979, when Williams filed a petition for writ of habeas corpus with the Florida Supreme Court asserting 1) that he had been denied due process because his conviction was based on an unconstitutional statute, 2) that he was denied effective assistance of counsel on appeal, and 3) that he was denied the right to a direct appeal. The Florida Supreme Court, determining (over Williams’ objections) that the issues raised were matters within the jurisdiction of the circuit court, ordered the petition transferred to the circuit court and treated as a motion under Rule 3.850. Williams v. Wainwright, Case No. 56,990. The circuit court did treat the petition as a motion under Rule 3.850, but denied it without a hearing. This appeal is from that order.

Appellant correctly asserts that the trial court erred in denying his motion without a hearing since the order was not predicated upon the legal insufficiency of the motion and did not have attached a copy of that portion of the files and records which conclusively show that he was not entitled to relief. As the record before us now stands, all three issues raised in appellant’s “motion” require a hearing unless the files and record conclusively show that appellant is entitled to no relief. Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978).

True, two of the issues, denial of effective assistance of counsel on appeal and denial of right to appeal, would normally not be within the jurisdiction of a trial court to consider. Smith v. State, 400 So.2d 956 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981). Rather, the claims would properly be raised by a petition for writ of habeas corpus filed in an appellate tribunal. Knight v. State, supra; State v. Wooden, 246 So.2d 755 (Fla.1971). However, appellant filed such a writ in the Florida Supreme Court, and that court determined specifically that the issues were matters within the jurisdiction of the circuit court. The law of this case is that the circuit court has jurisdiction to decide these issues. Greene v. Massey, 384 So.2d 24 (Fla.1980). And so, on to the third round.

REVERSED AND REMANDED for further proceedings in accordance herewith.

HURLEY and DELL, JJ., concur.


text:
    Robert P. HINSON, Appellant, v. PALM BEACH COUNTY, Appellee.
    No. 82-1172.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Bruce J. Daniels of Lesser, Daniels & Shalloway, P.A., West Palm Beach, for appellant.
    Catherine M. Brunson, Asst. County Atty., Palm Beach County, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. United States, 628 F.2d 187 (D.C.Cir.1980).

GLICKSTEIN, HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


author: ANSTEAD, Chief Judge.

text:
    Roger GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-2223.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Geoffrey C. Fleck and Jeffrey S. Weiner of Weiner, Robbins, Tunkey & Ross, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Max Rudmann and Debra Mann, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from convictions for kidnapping and robbery with a firearm based upon jury verdicts which also acquitted the appellant of possession of a firearm during the commission of a felony.

Gonzalez challenges the sufficiency of the evidence and, since the verdict of acquittal suggests that the jury found that Gonzalez did not commit a felony or that he did not possess a firearm, Gonzalez also contends that the verdicts are inconsistent and his conviction of robbery with a firearm cannot stand. We believe the evidence presented was sufficient to sustain both convictions. The inconsistent verdicts issue is more difficult to resolve.

The Federal courts permit inconsistent verdicts. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Such verdicts have included those which found a defendant guilty of conspiracy while acquitting him of the substantive act and those which found a defendant guilty of some counts and innocent of others when all the evidence was provided by a single witness. True inconsistent verdicts, those in which an acquittal on one count negates a necessary element for conviction on another count, are rare, but even those have been upheld by Federal courts. Dunn; United States v. Dudley, 581 F.2d 1193 (5th Cir. 1978).

While many states adhere to the federal rule, a substantial minority of states make an exception for “true” inconsistent verdicts. See People v. Bullis, 30 A.D.2d 470, 294 N.Y.S.2d 331 (N.Y.App.1968), which attempts to distinguish “true” inconsistent verdicts from others; DeSacia v. State, 469 P.2d 369 (Alaska 1970); People v. Pearson, 16 Ill.App.3d 543, 306 N.E.2d 539 (1973); People v. Goodchild, 68 Mich.App. 226, 242 N.W.2d 465 (1976); People v. Dercole, 72 A.D.2d 318, 424 N.Y.S.2d 459 (N.Y.App.1980); Cochran v. State, 136 Ga.App. 125, 220 S.E.2d 477 (1975).

After initially adopting the federal rule in Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946), the Florida Supreme Court apparently recognized the “true” inconsistent verdict exception to the rule in Mahaun v. State, 377 So.2d 1158 (Fla.1979). Mahaun held that a conviction of felony murder must be vacated if the jury acquits the defendant of the underlying felony charge because the acquittal constitutes a specific finding of the non-existence of the felony. Subsequently, in Redondo v. State, 403 So.2d 954 (Fla.1981), the court vacated a conviction for the possession of a firearm during the commission of a felony after the jury acquitted Redondo of aggravated battery and attempted aggravated battery charges. The import of these decisions was recently clarified by the Supreme Court in Eaton v. State, 438 So.2d 822 (Fla.1983) wherein the court stated in rejecting a claim of inconsistency:

The distinction between these cases and the case at bar is obvious. In the cited cases the underlying felony was a part of the crime charged — without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.

In Thomas v. State, 430 So.2d 616 (Fla. 4th DCA 1983), this court followed Redondo in an identical situation, as did the Third District in Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981) and Palacio v. State, 402 So.2d 500 (Fla. 3d DCA 1981). In Ayrado v. State, 431 So.2d 320 (Fla. 3d DCA 1983), the court reversed a conviction for the use of a firearm during a felony because the jury found Ayrado not guilty by reason of insanity of charges of first degree murder and attempted first degree murder. In each case the jury’s acquittal on one count appeared to negate a specific element necessary for conviction on the other count.

Several Florida cases have acknowledged the Mahaun rule but have refused to vacate allegedly inconsistent verdicts. Pitts v. State, 425 So.2d 542 (Fla.1983); McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), aff’d, 425 So.2d 1 (Fla.1983); Marshall v. State, 421 So.2d 714 (Fla. 3d DCA 1982). In each of these cases, an attempt was made to reconcile verdicts which convicted the defendants of the possession of firearms during the commission of felonies while acquitting them of the underlying felonies. In Pitts and McCray, while the defendants were acquitted of felony charges, the juries were not instructed on attempted felony charges. Thus, the court reasoned, the defendants were not acquitted of attempted felonies. Because a possession conviction may be based on the attempted commission of a felony, the possession convictions in these cases were allowed to stand. In Marshall, an acquittal on a possession charge did not invalidate a felony murder conviction because there was evidence that a co-defendant evidently carried the gun. Also see Eaton v. State, supra.

In the present case, Gonzalez was acquitted of possession of a firearm during the commission of a felony, but convicted of robbery with a firearm and kidnapping. We, of course, cannot determine the basis upon which the jury acted in acquitting Gonzalez of a charge that is essentially the mirror image of the robbery with a firearm charge. The robbery conviction is a felony and includes, as a necessary element, possession of a firearm. Actually, under current Florida law on double jeopardy, a defendant cannot be lawfully convicted of such closely related charges. Spencer v. State, 438 So.2d 864 (Fla. 1st DCA 1983). In this instance, it appears that a lay jury may have been quicker to recognize a problem than the judicial system and, having done so, dealt with it by acquitting Gonzalez of the related charge which sought to punish the defendant twice for essentially the same act.

However, having received the benefit of the jury’s action, we do not believe Gonzalez is entitled to use that action as a means for setting aside the finding of guilt on the robbery charge. Unlike the cases relied on by Gonzalez and discussed above, possession of a firearm during the commission of a felony is not a necessary element of the crime of robbery with a firearm. While it may be true that one cannot be convicted of possession of a firearm during the commission of a felony if it has been legally established that no felony took place, the converse is not true, at least in our view. Cf. Eaton v. State, supra.

We concede our tendency to agree with the federal decisions on this point recognizing no exception to the rule that apparent inconsistent verdicts are permissible. In our view, since juries have the inherent authority to acquit a defendant of all or any of the charges, it is impossible to determine whether verdicts convicting a defendant of some charges and acquitting him of others are “truly” inconsistent. Cf. Eaton v. State, supra. In any case, we do not believe the present ease falls within the exception recognized by the Florida Supreme Court, an exception we would of course be obligated to follow, if applicable.

Accordingly, the convictions and sentences are affirmed.

HURLEY, J., and WESSEL, JOHN D., Associate Judge, concur.


author: BERANEK, Judge.

text:
    ASSOCIATED DISTRIBUTORS, INC., d/b/a West Building Materials, Appellant, v. Mary Delaney MIX, etc., et al., Appellees.
    No. 82-2630.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Tracy R. Sharpe and Michael A. Viscomi of Farish, Farish & Romani, West Palm Beach, for appellant.
    J. Terence McManus of Ingalsbe, McMa-nus, Wiitala & Contóle, P.A., North Palm Beach, for appellee, Mix.
   BERANEK, Judge.

The plaintiff appeals in an action to foreclose a mechanic’s lien. We affirm.

This case commenced when Associated Distributors (Associated) sued Mary Mix (Mix), Kahle-McCleese, Inc., Lance Kahle, and Lloyd McCleese to foreclose a mechanic’s lien on the Mix property. Kahle-McCleese had built a home for Mix using materials allegedly furnished by Associated. When Associated failed to receive payments due from Kahle-McCleese pursuant to a credit agreement, it filed a mechanic’s lien on the Mix property. The lien was in the amount of $9,337.66.

After a bench trial, it was determined that the amount due Associated was $5,310.00 and that it was owed by Kahle-McCleese. The court further found that the plaintiff was not entitled to any lien on the Mix property, that the lien actually filed was a “fraudulent” lien and that Mix was entitled to damages from Associated in the following amounts: compensatory damages in the amount of $1.00, punitive damages in the amount of $9,337.66, attorneys’ fees in the amount of $6,000.00, and costs.

On appeal, Associated alleges that the court erred in ruling it was not a material-man and thus not entitled to the protections of the Mechanic’s Lien Law. Section 713.-01(11), Florida Statutes (1981), defines a materialman:

(11) “Materialman” means any person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement or for specially fabricated materials off the site of the improvement for the particular improvement, and who performs no labor in the installation thereof.

There was conflicting evidence presented at trial as to the nature of the activities of Associated. Competent evidence supported the view that Associated merely supplied the contractor with bulk order materials such as appliances which were in turn used by the contractor at its discretion in various different construction projects. The trial court’s conclusion, based on conflicting evidence, must be accepted by this court. Thus, the trial court did not err in finding that plaintiff was not a materialman as prescribed by statute.

We have reviewed the other issues raised on appeal and find no reversible error.

AFFIRMED.

DOWNEY and HERSEY, JJ., concur.


text:
    Larstin HAND, Appellant, v. James HUSTAD, Appellee.
    No. 83-8.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Gregory Scott of Craft, Craft & Scott, West Palm Beach, for appellant.
    Sidney A. Stubbs, Jr. of Jones and Foster- and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

This appeal challenges the propriety of a directed verdict in favor of the defendant in a legal malpractice case. The issue is whether the plaintiff adduced sufficient proof as to the collectibility of a lien to withstand the defendant’s motion for directed verdict. We resolve this question by employing the general rule that “[w]hen a judgment based on a directed verdict is appealed, this court must read the evidence in a light most favorable to the party against whom the verdict is directed, resolving every conflict and inference for that party.” McDonald v. McGowan, 402 So.2d 1197, 1199 (Fla. 5th DCA 1981). Here the record reflects that the plaintiff offered closing statements and other documentary evidence which, viewed in the light most favorable to the plaintiff, were sufficient to establish the collectibility of the lien. Thus, we hold that the trial court erred in granting the motion for a directed verdict and, accordingly, the judgment is reversed and the cause is remanded for a new trial.

REVERSED & REMANDED.

GLICKSTEIN and HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


author: LETTS, Judge.

text:
    James N. WEATHERLY, Jr., Appellant, v. NORTH AMERICAN VAN LINES, INC., Appellee.
    No. 83-165.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellant. No appearance for appellee.
   LETTS, Judge.

Appellant argues that since the cause of action in question was removed to Federal Court, the lower State Court had no jurisdiction to enter its order of dismissal, and even if it did, it erred in entering a dismissal which acts as an adjudication on the merits. Apparently the “Motion Notice and Judgment of Dismissal” was filed as a Final Judgment and it states:

Plaintiff, James M. Weatherly, shall take nothing by this action and Defendant, North American Van Lines, Inc. shall go hence without day.

The judgment of dismissal appears to act as an adjudication on the merits making all matters in this case res judicata. At the very least, this language was inappropriate since dismissals for lack of prosecution are to be “without prejudice” for purposes of res judicata. Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980), Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981). The Federal removal statute 28 U.S.C. 1441 does not expressly prohibit (nor does it address) such an action. However, 76 C.J.S. Removal of Causes § 221 at 1088 states:

If, on the other hand, on the face of the petition for removal and the record the cause appeared to be removable, and a sufficient bond was filed, where that was requisite, it was the duty of the state court to recognize the removal and proceed no further but to yield jurisdiction to the federal court, the state court having no discretion in the matter; subsequent proceedings therein, or a judgment entered, or a subsequent order made or refused by it, except the order of removal, was void and it should not resume consideration of the cause unless and until it should finally be decided in the courts of the United States that the cause was not removable.

Accordingly, we reverse and remand this cause for the entry of a stay.

REVERSE and REMAND.

GLICKSTEIN and WALDEN, JJ., concur.


text:
    Johnny James RICE, Appellant, v. STATE of Florida, Appellee.
    No. 83-182.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order denying appellant’s motion for release under Rule 3.218 of the Florida Rules of Criminal Procedure, noting, however, that application for relief under Rule 3.219, Florida Rules of Criminal Procedure, is not precluded by the trial court’s holding or by this court’s affirmance.

AFFIRMED.

ANSTEAD, C.J., and HERSEY and DELL, JJ., concur.


text:
    In re Forfeiture of 1981 HONDA MOTORCYCLE VIN: 2SC0103BM001578 Florida Tag: 4444333.
    No. 83-271.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Joseph Jordan, West Palm Beach, for appellant Jeff Valley.
    James H. Hicks of McKeown & Gamot, P.A., Palm Beach, for appellee Richard P. Wille, as Sheriff of Palm Beach County, Fla.
   PER CURIAM.

AFFIRMED on authority of In Re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982).

DOWNEY, HERSEY and BERANEK, JJ., concur.


author: WALDEN, Judge.

text:
    John Anthony KIRILUK, Appellant, v. STATE of Florida, Appellee.
    No. 83-296.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    E. Ross Zimmerman of Weinstein & Zimmerman, P.A. of Fort Lauderdale, for appellant.
    Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPON MOTION TO DISMISS

WALDEN, Judge.

The State has moved to dismiss Kiri-luk’s appeal on the ground that, since Kiri-luk pled guilty to possession of cannabis, he may not now appeal from the judgment entered thereon. The State is correct. Florida Rule of Appellate Procedure 9.140(b) specifically provides that, “A defendant (in a criminal case) may not appeal from a judgment entered upon a plea of guilty.”

A review of the plea hearing reveals that all concerned were proceeding under a misapprehension of law. The colloquy reflects that, with the approval of the court, Kiriluk pled guilty on the specific condition that he be allowed to appeal as concerns the legality of the search and seizure in his case. We hazard that the parties confused the effect of a guilty plea with that of a plea of nolo contendré where a defendant can appeal upon making an express reservation of the right of appeal with specificity. See Fla.R. App.P. 9.140(b) and Taylor v. State, 355 So.2d 180 (Fla. 3rd DCA 1978).

However, Kiriluk is not without a remedy. While he has no right to a direct appeal, he can obtain review by means of collateral attack. Bryant v. State, 360 So.2d 146 (Fla. 2d DCA 1978); Honeycutt, Jr., v. State, 359 So.2d 503 (Fla. 2d DCA 1978). He could, at least, apply to the court to set aside his plea on the ground that it was given involuntarily. Fla.R.Crim.P. 3.850.

This appeal is

DISMISED.

GLICKSTEIN and DELL, JJ., concur.


text:
    Casey HARRINGTON and Ryan Harrington, minors, by and through their father and next friend, Patrick HARRINGTON, and Patrick Harrington, individually, Appellants, v. Beltran J. PAGES, Appellee.
    No. 83-375.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Edward F. O’Connor of O’Connor, Baylor, Callas & Elliott, Palm Beach Gardens, for appellants.
    Robert M. Klein of Stephens, Lynn Cher-nay & Klein, Miami, and Debra Levy Nei-mark of Stephens, Lynn, Chernay & Klein, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We specifically reject appellants’ claim that the legislature, by enacting section 458.329, Florida Statutes (1981), barring sexual misconduct by physicians, intended an exception to the statute barring claims for alienation of affection. We affirm the trial court’s order dismissing appellants’ complaint and do so for substantially the same reasons set out in the trial judge’s written order:

Accepting the viability of such a cause of action does not, however, give solace to the Plaintiffs in this case for three separate and distinct reasons, any one of which standing alone is sufficient to preclude the Complaint in this case from alleging a valid cause of action.
In the first place, the conduct alleged to be extreme and outrageous was directed toward and against the person of LYNN HARRINGTON only. In Habelow v. Travelers Insurance Company, 389 So.2d 218 (Fla. 5th DCA, 1980), the court stated, at Page 220:
“In all cases we have found in Florida recognizing the tort of intentional infliction of emotional distress, the Plaintiff was the recipient of insult or abuse, or the message was clearly directed at the Plaintiff through a third person. See Ford Motor Credit Company v. Sheehan, 373 So.2d 956 (Fla. 1st DCA, 1979).”
But LYNN HARRINGTON who could have complained of the alleged outrageous conduct has not done so. Had she done so, Plaintiff PATRICK HARRINGTON at most would have had a spousal derivative claim. See Food Fair, Inc. v. Anderson, [382 So.2d 150 (Fla. 5th DCA 1980)].
In the second place, the conduct of the Defendant alleged to be outrageous, and the extreme emotional distress which Plaintiffs alleged to have incurred as a result of that conduct, are the direct result of the deterioration and ultimate dissolution of the marriage. Thus, the Plaintiff’s Complaint, because of the relationship between LYNN HARRINGTON and the Plaintiff, PÁTRICK HARRINGTON, as spouse (and between LYNN HARRINGTON and the minor Plaintiffs as parent), essentially seeks to allege, under the guise of “intentional infliction of emotional distress”, a cause of action which has been expressly barred by Section 771.01, Florida Statutes (1981):
771.01 Certain tort actions abolished — The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished.
Extreme emotional distress which results from dissolution of marriage or break up of the family relationship is necessarily barred by the cited statute.
Finally, the alleged conduct of the Defendant, although qualifying as sexual misconduct prohibited by Section 458.329, Florida Statutes (1981), does not, as a matter of law, arise to the level as described by the court in Food Fair, Inc. v. Anderson, supra, at Page 153:
“Liability has been found only where the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “outrageous!”
Defendant’s alleged conduct is not condoned and, indeed, justifies condemnation; but given current community standards, sexual intercourse between two consenting adults cannot be regarded as atrocious and utterly intolerable in a civilized community.

ANSTEAD, C.J., and HERSEY and DELL, JJ., concur.


text:
    Osman TOKAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-477.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the denial of a 3.850 motion after a hearing. We have carefully reviewed the record in this case and find no reversible error. We note that defendant does not raise the issue of incompetency of counsel.

AFFIRMED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Urban C. BALBIER and Marion A. Balbier, his wife, Appellants, v. CITY OF DEERFIELD BEACH, et al., Appellees.
    No. 83-480.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.
    Peter A. Portley, of Portley & Sullivan, Pompano Beach, for appellants.
    Andrew S. Maurodis, City Atty., of Michelson, Young & Maurodis, P.A., Deerfield Beach, for appellee-City of Deerfield Beach.
   PER CURIAM.

Following this court’s decision in Balbier v. City of Deerfield Beach, 408 So.2d 764 (Fla. 4th DCA 1982), the trial court on remand determined that appellants had no interest in the property. We affirm, holding they had no compensable interest and that they have failed to persuade this court, as in the trial court, that appellee had abandoned the right-of-way in question. See Section 177.101, Florida Statutes (1981) and Langston v. City of Miami Beach, 242 So.2d 481 (Fla. 3d DCA 1971).

GLICKSTEIN and HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


text:
    F. Gary GIESEKE, Appellant, v. Haydee GIESEKE, Appellee.
    No. 83-768.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Lerner & Harris and Allan M. Lerner, Fort Lauderdale, for appellant.
    No appearance, for appellee.
    Before BASKIN and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

A trial court is without authority to modify an agreement providing for child support absent (1) a pleading directed to the subject, (2) an appropriate proceeding conducted after notice, (3) a finding of changed circumstances, and (4) in a case where increased child support payments are sought, a record finding of respondent’s ability to pay. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Flynn v. Flynn, 433 So.2d 1037 (Fla. 4th DCA 1983); Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980).

That provision of the amended order which awards $10,200 for the child’s psychiatric fees is REVERSED and the cause is remanded for further proceedings.


author: SHIVERS, Judge.

text:
    Hamby McCASKILL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AR-4.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

McCaskill, convicted of evidence tampering, appeals his enhanced sentence as a habitual offender pursuant to section 775.-084, Florida Statutes (1981). Appellant argues that the findings of the trial court are insufficient as a matter of law to support sentencing as a habitual offender. We agree.

At the sentencing hearing, the trial court took judicial notice of the fact that McCas-kill had been convicted for robbery in 1981 and sentenced to four years in prison. Additionally, testimony from three law enforcement officers was presented at the hearing. The officers’ testimony related to incidents of threats and verbal abuse directed at the officers by appellant. No other evidence was presented. At the conclusion of the hearing, the trial court sentenced appellant as a habitual felony offender, stating:

Well, the court is going to find that the State has carried its burden and the preponderance of the evidence will reflect that the defendant has a defiance toward law enforcement officers and it will be necessary for the protection of the public from further criminal activity of the defendant that he be sentenced as a habitual felony offender.

Before a felon may be sentenced as a habitual felony offender under section 775.084, Florida Statutes, the trial court must, inter alia, find that the imposition of sentence under section 775.084 is necessary for the protection of the public from further criminal activity by the defendant. Section 775.084(3)(d) requires that the trial court make findings of fact that show on their face that an extended term is necessary to protect the public from defendant’s further criminal conduct. Eutsey v. State, 383 So.2d 219 (Fla.1980); Adams v. State, 376 So.2d 47 (Fla.1st DCA 1979). In the instant case, the only finding made by the trial court was that “the defendant has a defiance towards law enforcement officers We think that this finding of fact, which relates merely to appellant’s subjective attitude, is insufficient to support a conclusion that an enhanced sentence is necessary for the protection of the public from further criminal activity. The trial court did not find, nor does the record contain evidence to support a finding, that appellant attempted to carry out his threats or exhibited non-verbal behavior which necessitated the protection of the public. Accordingly, appellant’s sentence is vacated, and this cause is remanded for resentencing not inconsistent with this opinion.

MILLS and ZEHMER, JJ., concur.


author: JOANOS, Judge.

text:
    Thaddeus L. HOOPER, Appellant, v. STATE of Florida, Appellee.
    No. AR-348.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Clyde M. Collins, Jr., Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

Hooper was convicted of grand theft of property. He appeals the denial of his motions to suppress evidence, and to exclude identification testimony of a police officer based on a stop of a vehicle in which he was a passenger. We affirm.

At 12:34 a.m. Officer Gaff received a call from Mrs. Frederick, who is 70 years old and lives in a secluded area north of Amelia Island Plantation. On her property is a closed luncheonette and there are woods across the street and no residences in the area. She reported that she had heard a male voice outside her building and then observed a vehicle parked outside. This vehicle drove off before Gaff arrived, however, while Mrs. Frederick and Gaff were talking, the vehicle again drove past her building. Gaff pursued the vehicle, stopped it, and obtained identification from the driver and passenger. He did not issue a traffic citation or make an arrest. Later that morning, Gaff learned there had been a theft from the Honeydripper liquor and package store, located near the area of the stop, in which a blue overnight bag and about $40,000 had been reported taken. He recalled seeing a blue overnight bag in the vehicle he had stopped following Mrs. Frederick’s call. Having obtained identification at the time of the stop Gaff was' able to locate Everett Campbell, the driver of the car, obtain arrest and search warrants for Campbell, and recover $20,000 from Campbell’s home. Campbell testified for the state at trial. The information also led him to obtain an arrest warrant for Hooper. The subject of the objection and motion contending the stop was illegal was Gaff’s testimony at trial identifying Hooper as the passenger in the car he had stopped after Mrs. Frederick’s call.

In order to justify the stop of the vehicle in which Hooper was a passenger, the officer must have had a founded suspicion that the occupants were about to commit or had committed a crime, that is, “a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge. ‘Mere’ or ‘bare’ suspicion, on the other hand, cannot support detention.... Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.” State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). Some of the factors to be considered in deciding whether there was a founded suspicion are the time, day of the week, location, physical appearance of the suspect, behavior of the suspect, appearance and manner of operation of any vehicle involved, anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge. Id. At the hearing, the possibility of an attempted burglary or trespass was mentioned as the subject of the founded suspicion.

In the present case, the officer was justified in stopping the vehicle. He had been called to a secluded area early in the morning to investigate an unfamiliar vehicle which was parked on what was apparently private property, at least it was not a downtown business area, and the luncheonette apparently had been closed for years. In addition, as Officer Gaff stood talking to the caller, Mrs. Frederick, the same car drove past again, adding to the suspicious circumstances. In Codie v. State, 406 So.2d 117 (Fla.2d DCA 1981), the court found the fact that the vehicles in question were parked on private property, the dimly lit side parking lot of a closed gas station, as opposed to being in a public parking lot during business hours, to be a compelling circumstance, although in Codie there also had been numerous reports of criminal activity in the area to support the officer’s suspicion. See also Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980). Cf. Lower v. State, 348 So.2d 410 (Fla.2d DCA 1977). Some guidance may also be drawn from Lightbourne v. State, 438 So.2d 380 (Fla.1983). Although we recognize in that case there had been no stop and thus no founded suspicion was necessary, the court thought it significant in determining the reasonableness of a detention that the officers were responding to a call from a citizen to investigate a suspicious automobile, thus “they were not acting on their own ‘hunch’ as in ‘roving patrol’ cases.” In the present case Officer Gaff also was responding to a call from a concerned citizen, rather than acting upon his own hunch. Because of the circumstances we have determined that the trial court could properly conclude that Officer Gaff had a founded suspicion which justified his stop of the auto, thus the motion to exclude his testimony identifying Hooper as the person he had stopped was correctly denied.

Hooper also contends that a brown money wrapper found during a search of his residence should have been suppressed, however, the trial court properly concluded, having made a credibility determination in favor of the officers’ testimony, that the officers had obtained consent to search the residence.

AFFIRMED.

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


text:
    Jerry Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AT-187.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Southard v. State, 363 So.2d 178 (Fla. 4th DCA 1978).

ERVIN, Chief Judge, JOANOS, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: LEMMON, J.,

text:
    Thelma Elizabeth FIELDS v. WESTERN PREFERRED CASUALTY COMPANY and Herbert E. Munholland, Jr.
    No. 83-C-1967.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re: Herbert E. Munholland, Jr., applying for Certiorari, or Writ of Review to the Court of Appeal, Second Circuit, No. 15,-528-CA, 437 So.2d 344, Fourth Judicial District Court, Parish of Ouachita, No. 82-1072.

Denied.

LEMMON, J.,

concurs, not necessarily agreeing with the language regarding the reimbursement to the insurer by the insured, which is pure dicta in reversing a summary judgment in favor of the insurer.

DENNIS, J., would grant the writ.


author: GULOTTA, Judge.

text:
    Leroy MOORE, Jr. v. Charles C. FOTI, Jr., et al.
    No. CA-0644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Freeman R. Matthews, Ignatz G. Kiefer, New Orleans, for appellant.
    Bruce C. Waltzer, James E. Swayngim, Ernest Lee Caulfield, New Orleans, for ap-pellees.
    Before GULOTTA, WARD and BYRNES, JJ.
   GULOTTA, Judge.

Charles C. Foti, Jr., Criminal Sheriff of Orleans Parish, appeals from a $193,059.00 judgment in favor of plaintiff, Leroy Moore, Jr., a former inmate of the Orleans Parish Prison, for injuries sustained during his incarceration, when two fellow prisoners burned him with flammable liquid spray deodorant. We reverse.

Moore sued Foti, (individually and in his capacity as the official responsible for operation of the prison), Foti’s liability insurers, and the two inmates, Gerard Edwards and Roger Turner. After default judgments were rendered against the inmates, the claims against Foti were tried on the merits.

In awarding judgment in Moore’s favor, the trial judge concluded that Foti had breached his duty to use reasonable care to protect Moore against assaults by other prisoners by negligently distributing the flammable deodorant to the inmates through the prison commissary and allowing them to “hoard” it in their cells, when Foti “knew or should have known that prisoners have demonstrated great ingenuity in creating weapons to perpetrate acts of violence against fellow prisoners.”

Appealing, Foti contends the trial court erred: 1) in finding him negligent; 2) in failing to find plaintiff was contributorily negligent or had assumed the risk of the attack; and 3) in awarding plaintiff an excessive verdict where he had failed to mitigate his damages by seeking proper medical attention and following the advice of his physicians. The inmates Edwards and Turner have not appealed, and the default judgment against them is now final.

The attack on Moore occurred on Tier B-l of the parish prison, a “medium security” area that was described by Sheriff Foti as “one of the more closely supervised tiers.” ' It contained “a general cross section” of the prison population. Moore, who was serving time for issuing worthless checks, had recently been transferred to Tier B-l after being held on a disciplinary tier for violating rules of a restitution program.

Gerard Edwards,, a convicted murderer also housed on the tier, suspected Moore of stealing $5 from him. In retaliation, Edwards and his cellmate, Roger Turner, poured into an ice cream carton some Ban Basic liquid deodorant purchased from the prison commissary. Edwards and Turner then doused a sleeping Moore with the deodorant and set him afire with a burning newspaper.

At the time of his injury, Moore was an “assistant tier representative” whose duties included reporting to authorities trouble among the inmates. On the day before the attack, Moore testified that Edwards had complained to him that $5 had been taken from his cell. Moore offered to have the tier “shaken down” or searched, but Edwards replied that he “would take care of it himself” and that “some black S.O.B. was going to burn.” Moore then reported to the deputy on the tier that some of Edwards money had been taken or was missing, but did not tell him of Edwards’ threat, since he considered it to be “idle”.

After the incident, Edwards told investigating officers that he and Moore had an argument over the $5 and that Moore had threatened to burn him. Plaintiff denied these allegations.

Gordon Goldman, a chemist, testified that the deodorant is a mixture of 80% ethylnol and 20% water that can ignite from burning paper. The actual container(s) of deodorant used in the attack on Moore was not available at trial. According to Goldman, the product has had the same content for several years and has a warning on the packaging that it is “flammable”.

Sheriff Foti testified that the deodorant had been sold through the prison canteen and used by inmates without incident for five years before the attack on Moore. According to Foti, items sold to the general public, such as this deodorant, were made available to prisoners unless they were misused. Foti testified that inmates can turn “anything” into some kind of a weapon. Prisoners were allowed to have cigarettes, matches and lighters.

C. Paul Phelps, Jr., an expert in the operations and management of penal institutions, also recognized the “ingenuity” of prisoners in making weapons, but stated that prison authorities do not know how a product is going to be misused until after the fact. During his tenure as Director of the Department of Corrections for the State of Louisiana, Phelps had distributed flammable deodorant in his prison commissary. He testified that a “test” was not run on products selected by his prisoners, although he had “learned the hard way that things that were designated for one purpose ... can be used for something else.” Phelps testified that it is “impossible to keep flammables out of a prison.”

Louis A. Heyd, another expert in prison management, likewise recognized that innovative prisoners can make an innocent product into a weapon. He testified that inmates should not be given flammable fluids and that items labeled “flammable” should not be sold in prison canteens. During his testimony, Heyd cited the American Manual of Correctional Standards, which states that poisons such as denatured alcohol should never be in prisoners’ possession without constant supervision. Although Heyd stated that something less dangerous such as “stick deodorant” should be substituted, the evidence indicated flammable aerosol deodorant had been sold in the prison during his tenure as criminal sheriff, and he acknowledged that stick deodorant alcohol could be a weapon.

The settled rule, cited by the trial judge, is that a penal institution is not an insurer of an inmate against attacks by his fellow prisoners. The applicable standard is reasonable or ordinary care. To hold penal authorities liable for inmate attacks, they must know or have reason to anticipate that harm will .ensue and fail to use reasonable care to prevent it. See Parker v. State, 282 So.2d 483 (La.1983); McGee v. State Through Dept. of Corrections, 417 So.2d 416 (La.App. 1st Cir.1982), writ denied 420 So.2d 981 (La.1982).

The evidence considered, we conclude the trial court erred, as a matter of law, in finding Sheriff Foti negligent under the circumstances of this case.

Applying the Parker rule, we note, at the outset, that there is no proof that Foti knew or had reason to anticipate that harm would ensue to plaintiff because of an attack by his fellow inmate Edwards. Prison authorities had no inkling of Edwards’ intent to burn someone on the tier over his missing $5. Moore himself interpreted Edwards’ threat as “an idle threat that would be made all day long in the prison” or “barfighting” that had never before resulted in a “physical altercation.” Moore told the prison guard of Edwards’ missing money but did not mention his threat.- Under these circumstances, Sheriff Foti cannot be held liable for failure to anticipate the attack, or to separate Edwards from plaintiff prior to the incident.

Further, we find no breach of Sheriff Foti’s duty in distributing the deodorant to his prisoners. Foti and the two prison experts all recognized the ingenuity of prisoners in turning innocent products into dangerous weapons. However, recognition of this does not mean that prison authorities must deprive all inmates of essential commodities such as deodorant simply because of the ever-present danger that some devious prisoner may pervert or misuse this normally safe product to harm someone. Indeed, Foti had distributed flammable deodorant to prisoners in the jail without incident for many years before this unfortunate attack. Moreover, there was no evidence that non-flammable deodorant was even commercially available for distribution to prisoners.

Significantly, in Jones v. State, Through Dept. of Institutions, 346 So.2d 807 (La.App. 1st Cir.1977), writ refused 350 So.2d 671 (La.1977), our brothers on the First Circuit dismissed a damage suit against the State by an inmate burned in an attack by a fellow prisoner with a flaming mixture of deodorant and lighter fluid. Relying on the Parker rule, the Jones court concluded that the correctional officers had no reasonable cause to anticipate any difficulty or attack between Jones and his aggressor and found no evidence of individual negligence of the persons immediately responsible for their supervision and custody.

Similarly, Shields v. State Through Dept. of Corrections, 380 So.2d 123 (La.App. 1st Cir.1979), writ denied 382 So.2d 164 (La.1980), also affirmed a dismissal of an inmate’s suit against penal authorities for injuries sustained when a fellow inmate threw a caustic chemical on the victim. The evidence in Shields clearly established that the prison authorities had no warning that the victim was in danger and had no reason to anticipate the attack on him. The Shields court noted that a wide range of contraband items invariably falls into the hands of prison inmates and that possession of the acid, alone, did not make out a prima facie case of negligence against the prison authorities. A fortiori, in our case, the distribution of a normally safe deodorant to the prison population without incident for many years does not make Sheriff Foti liable for harm that ensues when one inmate misuses that product to harm another.

We distinguish Hampton v. State, Through Dept. of Corrections, 361 So.2d 257 (La.App. 1st Cir.1978), relied on by plaintiff. Hampton involved an inmate attack with plumber’s acid where there had been no evidence of any prior trouble between plaintiff and his aggressor. Although concluding that there was no negligence in the manner in which the State protected the plaintiff, the First Circuit stated in dicta: “However, we are of the opinion if the State, in fact, distributed acid to inmates without supervising them closely, in the use thereof, that it was guilty of negligence.” The First Circuit remanded the matter to the trial court for a possible finding “as to whether the State was negligent in its handling of acid.”

The dicta in the original Hampton opinion, and its successor, Hampton v. State, 376 So.2d 980 (La.App. 1st Cir.1979), writ denied 378 So.2d 432 (La.1979), are not persuasive of a different result in our case. Moreover, distribution of caustic acid to inmates is factually dissimilar from distribution of personal toiletries such as deodorant. The Hampton case is simply inapposite to the instant ease.

Accordingly, we conclude the evidence was insufficient to prove that Sheriff Foti should have anticipated the attack in our case or that he was negligent in distributing the deodorant used in it. The judgment in favor of plaintiff is therefore reversed and set aside. Judgment is now rendered dismissing plaintiffs suit at his cost.

REVERSED AND RENDERED.