author: DANIEL S. PEARSON, Judge. JORGENSON, Judge,

text:
    Jerome LANIER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-793.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 27, 1984.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The question presented on this appeal is whether having consensual sexual intercourse with an unchaste twelve-year-old girl constitutes the offense of handling or fondling in a lewd, lascivious or indecent manner or the offense of making an assault in a lewd, lascivious or indecent manner, both proscribed by Section 800.04, Florida Statutes (1981).

The defendant was charged by an information alleging that he, between certain specified dates,

“did unlawfully handle, fondle or make an assault upon [S] by engaging in sexual intercourse, but without the intent to commit Involuntary Sexual Battery, in violation of 800.04 ... that [S] is under the age of 14; and that the aforementioned acts were committed by Jerome Lanier in a lewd and lascivious manner.”

The defendant filed a sworn motion to dismiss the information setting forth the facts of the matter, the truth of which the State did not dispute by a traverse and, indeed, expressly admits. The facts set forth in the motion are as follows.

The defendant first met S while they were riding a bus on October 28, 1981. S told defendant that she was fourteen years of age and that she was running away from home, and defendant “asked her if she would like to go to a motel.” S replied that she would and “went with the defendant because she wanted to be with him.”

The defendant rented a motel room and left S there for several hours, returning that evening. He and S slept in the same bed that night and had consensual sexual intercourse. Approximately three or four months earlier, S had twice engaged in intercourse with her boyfriend. On the morning of October 29, the defendant left the motel and went to work; S remained at the motel. The defendant returned that evening, and he and S slept together, but did not have sexual intercourse. The next morning, the defendant went to work. He returned in the evening with dinner, after which he and S had consensual sexual intercourse.

On the next morning, October 31, the defendant again left the motel, and S again remained; “she was not getting tired of staying at the motel all day everyday and ... loved it.” The defendant had not forced his attentions upon her, and S “was getting close to the defendant and [had] started liking him.” S and the defendant had dinner together that night, and he left the motel after dinner and did not return until after S had gone to sleep. By the following day, the defendant had “recommended a few times that [S] go home, but ... she didn’t feel like leaving at that time.”

On the morning of November 1, defendant left the motel to do the laundry, and S remained in the room watching television. The defendant returned that afternoon and then left for work, returning to the motel that evening for dinner. He again told S that “he thought it would be a good idea if she went home,” and S became upset “because she didn’t want to go home but rather wanted to stay at the motel” with him. That night they slept together, but did not have intercourse.

Their last day together was November 2. As usual S stayed at the motel, and the defendant went to work. The defendant returned that evening, and they slept together, although “they did not have sex because she didn’t want to.” S left the motel on the following morning, leaving the defendant a note in which “she told him she liked him.” The charges against the defendant were filed on the following day.

The trial court denied the defendant’s motion to dismiss, and the defendant entered a plea of nolo contendere, specifically reserving his right to appeal the denial of his motion.

At the outset, the defendant makes clear that he does not attempt to defend his conduct; indeed, he freely acknowledges that it is reprehensible. What he does defend is his right to be charged under a statute which embraces such conduct. Thus, while he suggests that he may have been prosecuted for lewd cohabitation, § 798.02, Fla.Stat. (1981); prostitution, § 796.07, Fla.Stat. (1981); see Tatzel v. State, 356 So.2d 787 (Fla.1978) (holding constitutional the defining of licentious sexual intercourse, without consideration, as prostitution under Section 796.07); or contributing to the delinquency of a minor, § 827.04(3), Fla.Stat. (1981), he insists that Section 800.04 is inapplicable to his conduct.

We also make clear that the defendant does not contend that Section 800.-04, Florida Statutes (1981), an essential element of which is that the accused’s acts be done “without the intent to commit sexual battery,” see State v. Sumner, 157 Fla. 371, 26 So.2d 336 (1946) (affirming trial court order quashing information charging offense under former Section 800.04 where allegation that defendant acted without intent to commit rape omitted); cf. Bass v. State, 263 So.2d 611 (Fla. 4th DCA), cert. denied, 271 So.2d 142 (Fla.1972), is inapplicable to his conduct despite the fact that he indisputably acted with the intent to have sexual intercourse. While it is true that “sexual battery,” undefined in Section 800.-04, is elsewhere defined in Section 794.-011(l)(f), Florida Statutes (1981), as “oral, anal or vaginal penetration by, or union with, the sexual organ of another ...” without any requirement that the penetration or union be involuntary or accomplished by force, and thus an intent to have consensual sexual intercourse is ostensibly equated with an intent to commit a sexual battery, we think it clear, and the defendant agrees, that the term “sexual battery” as used in Section 800.04 refers not to the definition in Section 794.011(l)(f), but rather to the panoply of sexual battery crimes enumerated in Section 794.011, that is, the non-consensual, coercive or forcible sexual intercourse or union described in Sections 794.011(2), (3), (4) and (5), Florida Statutes. Thus, we conclude that when it is said in a prosecution under Section 800.04 that the defendant acted “without the intent to commit sexual battery,” what is meant is that the defendant did not intend to commit an act prohibited by Sections 794.011(2) through (5). We believe this conclusion is compelled by the history of Section 800.04.

Before Section 794.011 was promulgated, Section 800.04, Florida Statutes (1973) prohibited the very same acts as the 1981 version of the statute when such acts were committed “without the intent to commit rape.” The word “rape” as formerly used in the statute was interpreted to mean forcible rape only. See Baines v. State, 221 So.2d 3, 4 (Fla. 2d DCA 1969). When Section 794.011 was enacted in 1974, see Ch. 74-121, Laws of Florida, Section 800.04 was redrafted to bar the recited lewd acts perpetrated “without the intent to commit involuntary sexual battery,” § 800.04, Fla.Stat. (1975), thus manifesting the same legislative intent as the predecessor statute. The deletion of the word “involuntary” from the current version of Section 800.04 was not intended to bring about a substantive change, but rather was done to “conform the name of the crime to the terminology of § 794.011.” See Ch. 79-400, § 290 et seq., Laws of Florida.

Our conclusion is not only compelled by this legislative history, but is supported by the analysis of Section 794.011(l)(f) found, albeit in dictum, in Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), rev. denied, 413 So.2d 877 (Fla.1982), where the court stated:

“Since the acts described in the statutory definition of ‘sexual battery’ are not illegal per se and are, therefore, conduct essentially innocent, the crux, gist or gravamen of the offense of sexual battery, and, oddly, in criminal law, the one fact which characterizes the accused’s acts as being, or not being, criminal, is not an act or intent of the accused, but the mental assent of the ‘victim.’ ” 403 So.2d at 1377-78 (emphasis supplied).

Since sexual intercourse with an unchaste assenting twelve-year-old is not a sexual battery crime under Section 794.011, a person, as the defendant, who acts with the intent to have consensual sexual intercourse with an unchaste twelve-year-old acts “without the intent to commit a sexual battery,” and that essential element of Section 800.04 is satisfied here.

We turn then to the heart of the defendant’s argument, that is, apart from showing that his conduct was lewd and lascivious and done without the intent to commit sexual battery, the undisputed facts cannot sustain a finding that either the crime of assault or handling and fondling occurred.

•, /We have little difficulty agreeing that the undisputed facts are wholly insufficient to sustain the charge of assault. The “assault” crime proscribed by Section 800.04 includes the elements of assault and battery, whether defined at common law or by statute. Carver v. State, 344 So.2d 1328 (Fla. 1st DCA), cert. denied, 352 So.2d 174 (Fla.1977). Neither assault, § 784.011, Fla. Stat. (1981), nor battery, § 784.03, Fla.Stat. (1981), specific intent crimes, State v. Horvatch, 413 So.2d 469 (Fla. 4th DCA 1982); State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979); J.M.C. v. State, 331 So.2d 366 (Fla. 3d DCA 1976), embrace the consensual, non-violent conduct which occurred in the present case. Therefore, the instant prosecution of the defendant under Section 800.04 is sustainable only if the alleged consensual sexual intercourse with an unchaste child under the age of fourteen can constitute the offense of handling or fondling within the statute.

The information herein charged the defendant with handling and fondling by engaging in sexual intercourse. Such an allegation does not, in our view, set forth a crime contemplated by Section 800.04. Fundamental rules of statutory eonstruction require that “[w]ords used by the legislature are to be construed in their plain and ordinary sense.” Reino v. State, 352 So.2d 853, 860 (Fla.1977). “Handle” is commonly defined as “to touch, feel, hold,;' take up, move, or otherwise affect with the' hand” or to “use the hands upon.” Webster’s Third International Dictionary 1027 (1961). See also Black’s Law Dictionary 843 (rev. 4th ed. 1968). “Fondle” is a synonym for “caress,” and the pertinent definition is “to handle tenderly,” Webster’s, swpra at 883, again implying the use of one’s hands. “Sexual intercourse,” on the other hand, “means actual contact of the sexual organs” of two persons and penetration of the body of. another. Williams v. State, 92 Fla. 125, 127, 109 So. 305, 306 (1926) (citation omitted). Since the Legislature specifically used words of distinct and clear meaning in Section 800.04, the courts “may not invade the province of the legislature and add words which change the plain meaning of the statute.” Metropolitan Dade County v. Bridges, 402 So.2d 411, 414 (Fla.1981) (citation omitted). Therefore, reading “handle” or “fondle” as the trial court did in this case to include sexual intercourse is erroneous. See Lair v. Commonwealth, 330 S.W.2d 938 (Ky.1960) (statute making criminal carnal knowledge of a child and statute protecting infants against indecent and immoral practices each speak to different social problems and constitute separate and distinct offenses); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, cert. denied, 279 N.C. 512, 183 S.E.2d 688 (1971) (taking indecent liberties with a child not lesser-included offense of committing sodomy on a child); State v. Flath, 59 N.D. 121, 228 N.W. 847 (1929), rev’d on other grounds, 61 N.D. 342, 237 N.W. 792 (1931) (sex-related crimes enumerated in separate statutes, e.g., rape, are not punishable under indecent liberties statute); State v. Brammer, 304 N.W.2d 111 (S.D.1981) (statute criminalizing sexual contact, and defining sexual contact as not including the act of statutory rape or rape, inapplicable to a touching incidental to the rape).

Our conclusion that the Legislature did not intend to prohibit consensual sexual intercourse with an unchaste twelve-year-old under the rubric of handling and fondling is buttressed when, as is required, Section 800.04 is construed in pari mate-ria with other Florida statutes governing similar conduct so that “effect may be given to all the provisions of each.... ” State v. Hayles, 240 So.2d 1, 3 (Fla.1978). Section 794.011(2), Florida Statutes (1981), punishes as a capital or life felony (depending on the age of the offender) sexual intercourse with a child eleven years of age or younger, without regard to whether the victim consented or whether the victim was chaste. Section 794.05, Florida Statutes (1981), punishes as a felony of the second degree “unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years,” regardless of consent. See, e.g., Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944); Griffin v. State, 322 So.2d 587 (Fla. 4th DCA 1975). Thus, sexual intercourse with a child eleven years of age or younger is always a crime, but sexual intercourse with a child between the ages of twelve and eighteen is a crime only if the unmarried “victim” is of previous chaste character. If, then, the offense created by Section 800.04 — which, as the offense created by Section 794.05, is a second-degree felony— were read to include consensual intercourse with an unchaste child under the age of fourteen, the chastity requirement of Section 794.05 would be rendered meaningless in the case of consensual sexual intercourse with children between the ages of twelve and fourteen years. Simply stated, the conduct of consensual sexual intercourse with a child between the ages of twelve and fourteen would be identically punishable as a second-degree felony whether the child were chaste or unchaste. While we concede that it is within the legislative prerogative to condemn consensual sexual intercourse with a child under fourteen without regard to the child’s previous chaste character, legislative prerogative and legislative intent are two different things. We discern that the Legislature did not intend to punish equally consensual sexual intercourse with chaste and unchaste children between the ages of twelve and fourteen years in the absence of clear statutory provisions. Cf. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950) (legislative intent must be ascertained and effectuated); Haworth v. Chapman, 113 Fla. 591, 152 So. 663 (1934) (same); State v. Hoag, 419 So.2d 416, 417 (Fla. 3d DCA 1982) (“If a statute is to make sense, it must be read in light of some assumed purpose.”).

Section 794.05, as first enacted in Florida, was propounded “for the purpose of protecting the virginity of young maidens.” Simmons v. State, 151 Fla. 778, 783, 10 So.2d 436, 438 (1942). See also State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). The statute was amended to be gender-neutral in 1921, but was held to retain the same underlying purpose:

“Thus the statute, as it now reads, is designed to protect the youth of this state of both sexes from the initial violation of their actual previous condition of sexual chastity rather than from the consequences of their subsequent voluntary indulgence in immorality, or the promiscuous engaging in sexual intercourse on the part of those persons under eighteen years of age who by reason of an already acquired sexual promiscuity are no longer of previous chaste character within the statutory definition of the crime
Deas v. State, 119 Fla. 839, 842, 161 So. 729, 730 (1935).

The continued reenactment of Section 794.05 after this construction is deemed an adoption thereof by the Legislature. See, e.g., Williams v. Jones, 326 So.2d 425 (Fla.1975), appeal dismissed, 429 U.S. 803, 97 S.Ct. 34, 50 L.Ed.2d 63 (1976); Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964); Meehan v. The Celotex Corporation (Fla. 3d DCA 1983) (Case No. 82-122, opinion filed November 15, 1983). If the Legislature had intended the chastity requirement embodied in Section 794.05 to be inapplicable to children between the ages of twelve and fourteen, it would have said so. Thus, we think it evident that the Legislature intended to give the fullest protection to those eleven years old or younger, but protect other minors from consensual sexual intercourse only where they are of previous chaste character.

In summary, the undisputed facts reveal that the defendant’s acts were unquestionably lewd and lascivious and done without the intent to commit a sexual battery, that is, without the intent to commit one of the crimes enumerated in Section 794.011(2) through (5). However, because the acts were indisputably consensual, no assault occurred. Nor could the defendant be prosecuted under Section 800.04 for handling and fondling where the information describes or the undisputed facts show the handling and fondling to be an act of sexual intercourse, since consensual sexual intercourse with an unchaste child between the ages of twelve and fourteen is not a crime under Section 800.04.

Accordingly, the judgment below is reversed with directions to dismiss the information and discharge the defendant.

JORGENSON, Judge,

dissenting.

I respectfully dissent. The issues of consent and chastity, present in terms of chapter 794, Florida Statutes (1981), are not relevant to section 800.04, Florida Statutes (1981). The fact that a sexual battery did not occur (consent and chastity there being issues) does not, in my view, preclude prosecution under section 800.04.

The language in section 800.04, “any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner” (emphasis added), was unquestionably satisfied in the instant case. Indeed, the majority acknowledges in note 5 that the conduct of this defendant was lewd and lascivious within the meaning of the statute.

The intent of the legislature is determined by looking to the plain language of the statute. S.R.G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla.1978); Thayer v. State, 335 So.2d 815 (Fla.1976). The only conclusion that can be reached by looking to the plain language of section 800.04 is that the legislature intended to proscribe all lewd and lascivious conduct upon any child under the age of fourteen. This certainly would include the acts of the present defendant.

That the legislature has also enacted a chapter on the subject of sexual battery should be of no aid to the defendant in attacking his conviction under chapter 800. It is the prerogative of the legislature to enact separate laws concerning sexual battery and lewd and lascivious behavior. Though it may not be wise to enact laws which partly overlap, we are not free to alter the course the legislature has chosen. The array of charging alternatives given the prosecutor is not relevant to the crime charged. I would affirm.

      . In Purvis v. State, 377 So.2d 674 (Fla.1979), the court invalidated the fornication statute, Section 798.03, Florida Statutes (1977), on equal protection grounds, based upon gender discrimination. The defendants in that case had also been charged under Section 827.04(3), and the court also reversed that conviction because a portion of the delinquency charge was based upon violations of Section 798.03. However, nothing in Purvis holds or suggests that other sexual crimes cannot provide a basis for a charge under Section 827.04(3). Courts in other jurisdictions have uniformly held that conduct such as was engaged in by defendant in the present case provides a basis for a charge of contributing to the delinquency of a minor. See People v. Lew, 78 Cal.App.2d 175, 177 P.2d 60 (1947); People v. Lowell, 77 Cal.App.2d 341, 175 P.2d 846 (1946); People v. McDougal, 74 Cal. App. 666, 241 P. 598 (1925); Edwards v. State, 491 S.W.2d 87 (Tenn.Cr.App.1972), cert. denied, (Tenn.1973).

      . Section 800.04, Florida Statutes (1981), provides:
      "Any person who shall handle, fondle or make an assault upon any child under the age of 14 years-in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery, shall be guilty of a felony of the second degree_” (emphasis supplied).

      . Of course, "a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery.” Matava v. State, 358 So.2d 1116 (Fla. 3d DCA), cert. denied, 364 So.2d 888 (Fla.1978). See also Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1373 (Fla.1979); Dunson v. State, 194 So.2d 68 (Fla. 1st DCA 1967). This holding is in complete accord with the general rule that a defendant may not interpose as a defense to a lesser crime that he is guilty of a greater crime. See, e.g., Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). But here the defendant’s claim is not that he intended to commit sexual battery, but that he intended to commit no crime under Section 800.04. As will be seen, infra, consensual sexual intercourse with an unchaste twelve-year-old female is not a crime under that section.

      . At the same time and for the same reason, the language of the felony murder statute, § 782.04, Fla.Stat., was changed from "involuntary sexual battery" to “sexual battery." It would be shocking indeed to learn that one could be convicted of felony murder for a death occurring during the commission of “oral, anal or vaginal penetration by, or union with, the sexual organ of another.” Yet that would be precisely the result if the definition of sexual battery found in Section 794.011(l)(f) were imported into Section 782.04. Thus, "sexual battery” in the felony murder statute must also refer to the panoply of crimes enumerated in Section 794.011(2) through (5).

      . There can be little doubt that the conduct of the defendant and S was lewd and lascivious as those terms are defined in Florida law. See Chesebrough v. State, 255 So.2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972). Cf. Boles v. State, 158 Fla. 220, 27 So.2d 293 (1946).

      .The State contends that this very question was decided adversely to Lanier in Dunson v. State, 194 So.2d 68. We disagree. In Dunson, as in Matara v. State, 358 So.2d 1116, and Knox v. State, 361 So.2d 799, the accused defended against an assault charge under Section 800.04 by arguing that if the prosecution had proved any offense, it had proved a completed forcible rape. See n. 3, supra. Reviewing the evidence in a light most favorable to the State, the court found that the victim had consented to sexual intercourse with the defendant, and accordingly rejected the defendant’s claim. 194 So.2d at 69. Thus, the issue presented in the present case was neither raised nor ruled upon in Dunson and is one of first impression in this state.

      . Whether a defendant could be charged under Section 800.04 with handling and fondling in a lewd and lascivious manner where, although the information specifies a touching with the hands, the touching is indisputably incidental to an act of consensual sexual intercourse with a person not of previous chaste character or where the touching is antecedent to and independent of such act, are questions we need not decide. But see State v. Brammer, 304 N.W.2d 111 (S.D. 1981). However, it would appear to be anomalous that the Legislature would condemn the consensual touching of an unchaste person while not condemning the more serious act of consensual sexual intercourse with the same person. The anomaly disappears only by holding that Section 800.04 condemns the sexual intercourse as well, a holding which we find to be inconsistent with the legislative intent, or by holding that the reach of the handling and fondling provision of Section 800.04 is limited to non-consensual handling and fondling which does not amount to assault and where the victim’s prior chastity is irrelevant. Under the latter — and, we believe, correct — interpretation, a child who is eleven years old or younger is protected from a "consensual” handling and fondling even as such child is protected from “consensual” sexual battery. See § 794.011(2), Fla.Stat. (1981). "[T]he law presumes that a child of such immature age is incapable of either consenting to or protesting against the act.” Schang v. State, 43 Fla. 561, 564, 31 So. 346, 347 (1901). See Wright v. State, 199 So.2d 321 (Fla. 1st DCA 1967). Accord, Stevens v. State, 231 Ark. 734, 332 S.W.2d 482 (1960) (“eleven-year-old child so young consent was legally impossible”); Hill v. State, 246 Ga. 402, 271 S.E.2d 802, 806 (1980) (“The victim’s age in this case [twelve] indicates that, as a matter of law, the intercourse was nonconsensual and ‘against her will.’ ”); Drake v. State, 239 Ga. 232, 236 S.E.2d 748, 750 (1977) ("A female under fourteen years of age is legally incapable of giving consent.”); People v. Riley, 84 Ill.App.2d 296, 228 N.E.2d 190, 192 (1967) (seven-year-old female incapable of consenting or resisting). This same incapability or legal impossibility exists in respect to any sexual advance, not merely the act of intercourse. See Schang v. State, 31 So. 346 (a child can no more consent to attempted carnal intercourse than she can to the completed act). Accord, Buttram v. State, 269 Ind. 598, 382 N.E.2d 166 (1978) (a child of tender years is legally incapable of consenting to a sexual assault not amounting to attempted carnal intercourse); Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957) (same); People v. Gibson, 232 N.Y. 458, 134 N.E. 531 (1922) (same); Carter v. State, 121 Tex.Cr. 493, 51 S.W.2d 316 (1932) (same). See also R. Perkins, Perkins on Criminal Law 961 (2d ed. 1969):
      "[T]he sound view is that [a girl under the age of consent] is just as incapable of giving a legally-recognized permission to an indecent fondling of her person as she is of giving such license to the act of intercourse itself, and hence, her consent to such liberties is no defense.” (footnote omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Larry HOLCOMB, Appellant, v. The STATE of Florida, Appellee.
    No. 82-863.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Pox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that the substance of the improperly admitted criminal convictions of the defendant herein had already been properly placed before the jury upon the state’s cross-examination of the defendant’s character witnesses herein. As such, we think the evidence error here was harmless under the circumstances of this case. Culberson v. State, 210 So.2d 248 (Fla. 2d DCA 1968), cert. denied, 218 So.2d 171 (Fla. 1968). §§ 59.041, 924.33, Fla.Stat. (1981); see also Cornelius v. State, 49 So.2d 332 (Fla.1950); Sias v. State, 416 So.2d 1213, 1217-18 (Fla. 3d DCA 1982), pet. for rev. den., 424 So.2d 763 (Fla.1982).


author: HENDRY, Judge.

text:
    Milton JAY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1362.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 27, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Milton Jay, defendant below, appeals from his conviction of grand theft, second degree and carrying a concealed firearm. We reverse on the basis of the violation of Rule 3.191(d)(3), Florida Rules of Criminal Procedure.

Appellant was arrested on March 6,1981, and charged by information with carrying a concealed firearm and unlawful possession of a firearm by a convicted felon. On May 26, 1981, appellant announced ready for trial but the trial court, on its own motion, continued the trial because appellant only recently retained private counsel and because the name of a defense witness was given to the State only that day. The trial court, over defense objections, charged the continuance to the appellant. On July 6, 1981, the State filed a nolle prosequi on the charges against appellant and then filed the instant charges on December 3, 1981. The instant charges were grounded on the same conduct or criminal episode as the earlier charges. On February 8, 1982, appellant moved for a discharge pursuant to Rule 3.191(d)(1), Florida Rules of Criminal Procedure, which motion was denied. The trial was then set for March 23, 1982. On that date, the trial was once again continued because the State wanted this case reset with another, separate case pending against appellant. Appellant again moved for discharge, this time pursuant to Rule 3.191(d)(3), on May 11, 1982, which was the 91st day after the denial of the earlier motion for discharge. The motion was denied and appellant went on to trial. The jury found him guilty on both counts.

The language of Rule 3.191(d)(3), Florida Rules of Criminal Procedure, is absolutely clear: when a pending motion for discharge is denied, trial shall be scheduled and commenced within 90 days of a written or recorded order of denial. Because the language of the rule is clear, so is the law in this area. In Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), the Florida Supreme Court held that:

In the event a defendant believes he has been denied his right to [a] speedy trial within a reasonable time and files a motion for discharge, a denial of that motion requires that the defendant be brought to trial within 90 days of the denial of defendant’s motion pursuant to Rule 3.191(d)(3).

Id. at 970 (e.s.). See also State v. Lazarus, 433 So.2d 1314 (Fla. 2d DCA 1983); State v. McCrery, 429 So.2d 739 (Fla. 1st DCA 1983); Brownlee v. State, 427 So.2d 1106 (Fla. 3d DCA 1983); State v. Freeman, 412 So.2d 452 (Fla. 5th DCA 1982); Rogers v. Keating, 411 So.2d 231 (Fla. 5th DCA), rev. denied, 419 So.2d 1200 (Fla.1982).

The record is clear that appellant was ready to go to trial on these charges on February 8, 1982 and that appellant made no requests for continuances between the dates of February 8 and May 11, 1982. Trial should have commenced on or before May 10, 1982. The fact that the State moved, on March 23, 1982, to reset this trial with another pending case against appellant is immaterial. Crimes not involving the “same conduct or criminal episode” have separate speedy trial periods which run from the date the defendant is taken into custody on each of the charges. State v. Deratany, 410 So.2d 977 (Fla. 5th DCA 1982); State v. Van Winkle, 407 So.2d 1059 (Fla. 5th DCA 1981). Additionally, the State may not use its prosecuting procedures to unlawfully extend a speedy trial period. State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981).

Because we find that appellant’s May 11, 1982 motion for discharge should have been granted, the other issues appellant raises on appeal are now moot.

Denial of appellant’s motion for discharge is reversed and appellant is discharged as to this cause only.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Harold William WARWICK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1415.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Warwick appeals a conviction of manslaughter and the resulting sentence.

On October 14, 1976, Warwick was charged with first degree murder. On November 16, 1976, Warwick filed a notice of intent to rely on a defense of insanity. On February 23, 1977, Warwick was found incompetent to stand trial and was committed to the Division of Mental Health. On March 9, 1979, an administrative hearing officer found Warwick was still incompetent to stand trial, and that he had no substantial probability of becoming mentally competent to stand trial. This was based on the finding that Warwick suffered from organic brain syndrome due to drug abuse. On February 13, 1980, Warwick moved to dismiss the charges pursuant to Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) which motion was denied. On November 10, 1980, January 4, 1981 and July 7, 1981, Warwick was still found to be incompetent to stand trial. On October 31, 1981, the trial judge received a letter by the administrator of the facility stating that Warwick had mimicked the psychotic symptoms. On March 16, 1982, Warwick again moved to dismiss the charges, which motion was denied. On April 6, 1982, the trial court entered an order finding Warwick able to stand trial. On June 15, 1982, Warwick pled nolo contendere to a reduced charge of manslaughter specifically preserving the right to appeal the court’s denial of the motions to dismiss. Warwick was adjudicated guilty and sentenced to 15 years imprisonment. Warwick appeals. We affirm. The appellant was accorded a hearing at the expiration of 5 years in accordance with Rule 3.213(a) Florida Rules of Criminal Procedure adopted in 1980. He' was found to be competent. We find that the rule was applicable to the appellant even though it was promulgated after he was committed, particularly in view of the fact that it became effective before 5 years had expired from the original commitment. It is a rule of procedure and as such was applicable to all pending matters. Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981); Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979).

We find that the impact of the rule distinguishes this case from Garrett v. State, 390 So.2d 95 (Fla. 3d DCA 1980) rev. denied 399 So.2d 1146 (Fla. 1981) cert denied, 454 U.S. 1004, 102 S.Ct. 544, 70 L.Ed.2d 409, rehearing denied, 454 U.S. 1165, 102 S.Ct. 1041, 71 L.Ed.2d 322 (1981) and therefore affirm the trial judge’s action here under review.

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

The majority’s reliance on the fact that the defendant, in compliance with Florida Rule of Criminal Procedure 3.213, was accorded a competency hearing at the expiration of five years is simply not dispositive of the defendant’s constitutional claim that he was entitled to a dismissal of the charges against him, nor does it distinguish this case from Garrett v. State, 390 So.2d 95.

Rule 3.213 sets an outer limit for holding a person on a determination that he is incompetent to stand trial. If he is charged with a felony, is still incompetent after five years, and there is no substantial probability that he will become mentally competent to stand trial in the foreseeable future, then the rule mandates that the charges against the defendant be dismissed. But because the defendant is not entitled to relief under the rule either because he is found competent at the expiration of five years of incompetency, as here, or there is found to be a substantial probability that he will become mentally competent to stand trial in the foreseeable future, does not mean he is not entitled to relief under the Constitution. In other words, the rule does not do away with the holding in Garrett that a defendant who has “been held more than a ‘reasonable period’ without the requisite determination of the likelihood of his eventual ability to stand trial,” 390 So.2d at 97, cannot thereafter constitutionally be brought to trial. However, while I believe the defendant’s constitutional claim must be addressed, I do not believe he is entitled to the relief he seeks.

In my view, Garrett was wrongly decided. There simply was no constitutional infirmity in Garrett’s conviction, and there is none here.

In Garrett, this court reversed the conviction of a man who was brought to trial after being found competent to stand trial solely because he had been incarcerated for between six and seven years under earlier orders determining him to be incompetent. This court believed that such a result was compelled by Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). However, as Justice Rehnquist observed in dissenting from the United States Supreme Court’s decision to deny certiorari in Garrett, Florida v. Garrett, 454 U.S. 1004, 102 S.Ct. 544, 70 L.Ed.2d 409 (1981), this court’s decision in Garrett “is not supported, much less compelled, by Jackson v. Indiana,” 454 U.S. at 1006, 102 S.Ct. at 546, 70 L.Ed.2d at 410. As he explained:

“Jackson ... recognized limits on the power of a State indefinitely to eonfine an accused ‘solely on account of his incapacity to proceed to trial.’ As the Court was aware, however, that holding does not address the power of the State to try, and thus to convict, the accused once he has regained competency to face the charges against him_ It is foreseeable that once that time arrives the defendant may allege that he has been deprived of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. The respondent in this case relied precisely, and exclusively, on such an argument in the District Court of Appeal_ That court, however, reversed his conviction ‘on the basis that, under the holding in Jackson v. Indiana, ... he should never have been brought to trial.’ 390 So.2d, at 96. Since Jackson did not address the power of the State to bring an accused to trial, it affords no basis for reversing respondent’s conviction.

454 U.S. at 1008, 102 S.Ct. at 546-47, 70 L.Ed.2d at 410-11 (emphasis in original). Thus, the remedy for a violation of the constitutional right not to be indefinitely incarcerated solely on a determination that one is incompetent to stand trial is not, as we held in Garrett, a dismissal of the criminal charges. Since, as I have said, Rule 3.213 does not do away with the holding in Garrett, the holding in Garrett should be done away with by us.

      . Rule 3.213. Continuing Incompetency to Stand Trial: Disposition, (a) If at any time after five years after determining a person incompetent to stand trial when charged with a felony or one year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial, that there is no substantial probability that the defendant will become mentally competent to stand trial in the foreseeable future, and that the defendant does not meet the criteria for involuntary hospitalization set forth by law, or for involuntary admission to residential services as set forth by law, it shall dismiss the charges against the defendant.

      . If the defendant meets the criteria for involuntary hospitalization, then under Section (b) of the rule, the court is to commit the defendant for appropriate treatment.

      "2 If Jackson had purported to limit the power of the State to try an accused because of an unlawful pretrial commitment, it would have marked a drastic departure from the ‘established rule that illegal arrest or detention does not void a subsequent conviction.’ Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975).”

      . Of course, a state may confer upon its citizens greater rights than the Constitution commands. This is precisely what it has done in Rule 3.213, which provides for dismissal of the charges after the requisite findings of continued incompetency and no substantial probability of regaining competency in the foreseeable future are made. A defendant’s entitlement to dismissal of the charges is limited, however, to what the rule provides, and since here he is entitled to no relief under the rule, he is entitled to no relief.


text:
    Mario PICALLO and Ena Picallo, Appellants, v. Marlene Espinet PICALLO, Appellee.
    No. 82-1598.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellants.

      Steven R. Berger and Sara Lawrence, Hofrichter & Quiat, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Appellants appeal a final judgment that found that they are not the beneficiaries of a resulting trust in a home they helped a deceased son purchase, that they are not entitled to possession of a portrait of a grandchild and that they must deed title to cemetery plots to their daughter-in-law, the wife of the dead son. The daughter-in-law cross-appeals the final judgment which held that she is not entitled to return of $15,000 she gave her husband’s father, that she owes the appellants $15,000 and also an order granting appellants visitation with their granddaughter twice a week.

Marlene Espinet Picallo is the widow of Mario Luis Picallo. Mario Luis Picallo was Mario and Ena Picallo’s son. Marlene Es-pinet and Mario Luis had one child, a daughter.

Mario Luis had purchased a home. Some of the down payment was provided to the son by his father, and all the parties occupied the home.

Mario and Ena asked a relative of theirs to paint a portrait of their granddaughter. This picture was exhibited for a while in a gallery and then delivered to Mario and Ena. After a few weeks passed, Ena told Marlene Espinet Picallo that she had a surprise for her and showed her the picture. The picture hung in Marlene’s part of the house until she moved out and removed it.

When Mario Luis was dying, his father offered to arrange for the burial plot. Mario asked Marlene for $5,000 for this expense. Mario had purchased four plots— one for himself, one for his wife, one for Mario Luis and one for Marlene. All four plots were in Mario Sr.’s name.

After Mario Luis died, Marlene received $85,000 from insurance. She gave $15,000 of this to Mario; ostensibly in trust for the minor daughter.

Mario and Ena sought the imposition of a resulting trust on the house, return of the portrait and visitation rights with their grandchild. They were granted visitation twice a week. The court held there was no resulting trust in the house but Marlene owed Mario and Ena $15,000 to be paid in five years or when the house is sold, whichever comes first. Return of the portrait was denied. Marlene sought return of the $15,000 she gave Mario and title to the cemetery plots. The trial court held she was not entitled to the return of the money, but was entitled to the plots.

We affirm all the findings and adjudications of the trial court complained of by the appellants. Williams v. Grogan, 100 So.2d 407 (Fla.1958); Sihler v. Sihler, 376 So.2d 941 (Fla. 2d DCA 1979); Green v. Green, 314 So.2d 801 (Fla. 3d DCA 1975); Genter v. Genter, 270 So.2d 388 (Fla. 3d DCA 1972); 3 Fla.Jur.2d, Appellate Review § 277.

On the cross-appeal we find error in the requirement of the return of the $15,000 advanced to the son toward the purchase of the house and the denial of the return of the $15,000 delivered to the appellants by the appellee from insurance proceeds. As to the first, there was a finding of no right to a resulting trust in the house, therefore there was no basis for the award, as no debt was created or recognized by the daughter-in-law. D’Uva v. D’Uva, 74 So.2d 889 (Fla.1954); Domage v. Simpson, 157 Fla. 468, 26 So.2d 340 (1946); Dames v. Dames, 149 So.2d 570 (Fla. 3d DCA 1963). As to the second, there was no consideration for transfer of the $15,000 out of the insurance proceeds, it was not a gift, plus it was obtained from the appellee at a time of great distress because of the death of her husband. In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Atlantic First National Bank of Daytona Beach v. Cripe, 389 So.2d 224 (Fla. 5th DCA 1980); Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975). The other error urged on the cross-appeal is found to be without merit. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Putnal v. Putnal, 392 So.2d 613 (Fla. 5th DCA 1981); Fisher v. Fisher, 390 So.2d 142 (Fla. 3d DCA 1980), Section 68.08 Fla.Stat. (1981). Therefore, the final judgment under review is modified by striking paragraph 4 therefrom. Paragraph 7 is reversed with directions to enter a judgment for $15,000 in favor of the appellee and against appellant Mario Picallo. The other portions of the final judgment are affirmed.

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


author: DANIEL S. PEARSON, Judge.

text:
    Andrew ROBERTS, a/k/a Andres Smith, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1619.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant’s conviction for burglary of a structure is reversed and the cause remanded for a new trial upon a holding that the prosecutor’s comment in his opening statement to the jury, namely, “... but there is one piece of evidence that will be presented that he will not be able to explain and that will be the evidence that links that defendant to the crime as charged,” was, without doubt, fairly susceptible of being interpreted by the jury as referring to the defendant’s exercise of his right to remain silent, see Samosky v. State (Fla. 3d DCA 1983) (Case No. 82-2614, opinion filed November 15, 1983), and cases cited therein, regardless of its susceptibility to a different construction, Trafficante v. State, 92 So.2d 811 (Fla.1957); Bain v. State, 440 So.2d 454 (Fla. 4th DCA 1983), and notwithstanding that the comment, made as it was prior to the presentation of evidence, related to the defendant’s “impending failure to take the stand” rather than “his completed election not to become a witness.” State v. Turner, 433 A.2d 397, 401 (Me.1981). See Fussell v. State, 436 So.2d 434, 435 (Fla. 3d DCA 1983) (prosecutor’s question during voir dire, “Does it bother you that ... it is going to be [the victim’s] word against his word?” held comment on defendant’s failure to testify); Ramos v. State, 418 So.2d 1302, 1303 (Fla. 3d DCA 1982) (prosecutor’s comments during voir dire “implying that defendant’s testimony might have incriminated her, when considered in light of the fact that she did not take the stand, was clearly amenable to interpretation by the jury as referring to her failure to testify.”); Smith v. State, 358 So.2d 1137 (Fla. 3d DCA), dismissed, 364 So.2d 892 (Fla.1978) (prosecutor’s opening statement comment that the basic issue is whether the jury is going to believe the State’s witness or the defendant amounts to comment on defendant’s later failure to testify); Manofsky v. State, 354 So.2d 1249 (Fla. 4th DCA 1978) (prosecutor’s remark, apparently made in opening statement, that the testimony may be different if the defendant testifies is comment on defendant’s later failure to testify). Accord, Clark v. State, 256 Ark. 658, 509 S.W.2d 812, 815 (1974) (prosecutor’s opening statement comment that the story about what happened will come from the defendant results in “pre-evidentiary coercion which is just as forbidden as post evidentiary comment”). Accordingly, the trial court’s failure to grant the defendant’s timely motion for mistrial is reversible error without regard to the harmless error doctrine. Harris v. State, 438 So.2d 787 (Fla.1983); Donovan v. State, 417 So.2d 674 (Fla.1982); David v. State, 369 So.2d 943 (Fla.1979). Because the defendant’s motion for judgment of acquittal based on his contention that the evidence was insufficient was properly denied, the cause is

Reversed and remanded for a new trial.


author: SCHWARTZ, Chief Judge.

text:
    P.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1870.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

The appellant was adjudicated delinquent based on a finding that he was guilty of grand theft. That determination was in turn founded upon the presumption of guilty knowledge which arose from the fact that he was in possession of a recently stolen moped. Section 812.022(2), Florida Statutes (1981). When he was stopped by the police, P.N. told the officer first that he had borrowed the moped from a cousin, then a brother, and finally — as he testified at trial — from an otherwise unidentified friend named Victor Cruz. We conclude that the multiplicity of alternative versions advanced by the juvenile created an issue for the trier of fact as to whether his possession of the moped had been satisfactorily explained so as to dissipate the statutory presumption. See State v. Graham, 238 So.2d 618 (Fla.1970). The case is controlled by State v. Fox, 404 So.2d 799 (Fla. 3d DCA 1981), and cases cited, not R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981) or A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). Furthermore, since credibility is always, and particularly in this area, see State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969), for the fact-finder, the trial judge was not required, as P.N. argues, to accept his trial explanation of his earlier misstatements as the product of fright and confusion, rather than a search for a more acceptable, if equally untrue, excuse for his possession of the stolen property. See Andreasen v. State, 439 So.2d 226 (Fla. 3d DCA 1983).

Affirmed.


text:
    Michael Anthony BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2051.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 16, 1984.
    Bennett H, Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Brown appeals a final judgment entered on guilty verdicts of burglary, sexual battery, robbery and possession of a firearm in the commission of a felony. The only issue at trial was identity.

Brown contends that the trial court erred in admitting the testimony of a serologist regarding a test which showed that Brown was included in a large group of the population that could have committed the sexual battery. Brown also contends that jury instructions concerning flight were improperly given.

The victim provided police with a detailed description of her assailant. She described him as a stocky, high-cheekboned, five-foot-eight-inch-tall black male with freckles. She made clear, convincing and unequivocal identifications of Brown both before trial, to the police from a photograph, and at trial, consistent with her description of his unusual facial characteristics.

In light of Daniels v. State, 108 So.2d 755 (Fla.1959), we hold that the record supports the flight instruction given to the jury. Brown fled from and fought with police at the time of his arrest.

The serologist’s testimony regarding the blood test is admissible if material and relevant. On this record, as in Tejeda-Bermudez v. State, 427 So.2d 1096 (Fla. 3d DCA 1983), we hold that if there was error in admitting such testimony, it was harmless.

Affirmed.


text:
    Minnie WILLIAMS, Appellant, v. WINN DIXIE STORES, INC., Appellee.
    No. 82-2350.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Marcus Ambrose, Coral Gables, for appellant.

      Gerald E. Rosser, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The final judgment appealed is reversed upon a holding that (1) the affirmative defense of assumption of risk is merged into the defense of contributory negligence and the principles of Hoffman v. Jones, 280 So.2d 431 (Fla.1973) shall apply, Kuehner v. Green, 436 So.2d 78 (Fla.1983); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Gary v. Party Time Company, Inc., 434 So.2d 338 (Fla. 3d DCA 1983); Hylazewski v. Wet ’N Wild, Inc., 432 So.2d 1371 (Fla. 5th DCA 1983) (Cowart, J., specially concurring); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982); Tommie v. La-Chance, 412 So.2d 439, 440 n. 1 (Fla. 4th DCA 1982), (2) any fact relevant to prove a fact at issue is admissible unless its admissibility is precluded by some specific rule of exclusion and here, testimony as to the

general cleanliness of the grocery store is relevant to the issue of appellee’s actual or constructive notice of the dangerous condition, Division of Corrections v. Wynn, 438 So.2d 446 (Fla. 1st DCA 1983); Carter v. Rukab, 437 So.2d 761 (Fla. 1st DCA 1983); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983) and cases cited at 436 So.2d 1076, and (3) while attorneys are allowed wide latitude in jury argument, inflammatory or prejudicial remarks by counsel will require reversal. Wright v. Ford Millworks, Inc. v. Long, 412 So.2d 892 (Fla. 5th DCA 1982); Erie Insurance Co. v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981); Thundereal Corp. v. Sterling, 368 So.2d 923 (Fla. 1st DCA), cert. denied, 378 So.2d 350 (Fla.1979).

Reversed and remanded for a new trial.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    The STATE of Florida, Petitioner, v. Crispin WHITEHEAD, Respondent.
    No. 82-2458.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Jim Smith, Atty. Gen. and Steven Jacob, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for respondent.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Whitehead, contending that Section 316.-1932(l)(a), Florida Statutes (Supp.1982), which provides, inter alia, that:

“The refusal to submit to a chemical breath or urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding.”

unconstitutionally violates his privilege against self-incrimination, successfully moved in limine to prohibit the State from eliciting any testimony concerning, or commenting upon, the defendant’s refusal to submit to a test to determine the alcoholic content of his blood. The order granting the motion in limine is vacated upon the authority of South Dakota v. Neville, — U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), and State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983).

SCHWARTZ, Chief Judge

(specially concurring).

Following the course I have taken in Continental Video Corp. v. Honeywell, Inc., 422 So.2d 35 (Fla. 3d DCA 1982) (Schwartz, J., specially concurring), and cases cited at n. 2,1 concur in the consideration of this cause on petition for certiorari only because of the existence of State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), about which I have already expressed my doubts, see State v. C.C. (Fla. 3d DCA Case no. 81-2564, et al., opinion filed September 27, 1983) (en banc) (Schwartz, C.J., specially concurring), and which — were I free to do so — I would, at the least, very critically reconsider.

On the merits, I agree completely that the order below was incorrect.

      . Among other things, it seems clear to me that the prerequisite for certiorari consideration that any remedy by appeal is "inadequate,” 3 Fla. Jur.2d Appellate Review § 468 (1978), necessarily implies that a right to appellate review from an adverse final judgment exist in the first place. In any criminal prosecution in which the state seeks an otherwise unauthorized review of a pre-trial ruling, however, it of course does not.


author: BASKIN, Judge.

text:
    Judy LURIO, Appellant, v. Daryl Scott LURIO, a minor, By and Through his undersigned Attorney and Guardian Ad Litem Jeffrey M. ROSENTHAL, Appellee.
    Nos. 83-103, 83-1801.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 23, 1984.

      Joe N. Unger, Miami, for appellant.
    Resnick, Rosenthal & Weiss and Jeffrey Rosenthal, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   BASKIN, Judge.

Judy Lurio, surviving spouse of Sidney Lurio, appeals the Order Denying Petition to Establish and Probate Lost or Destroyed Will and the Order Denying Motion for Rehearing entered by the trial court. We affirm.

Judy Lurio’s attempt to establish and probate the lost or destroyed will of her husband depended on her contention that his original will had been lost or destroyed without his knowledge or consent and that he did not intend to revoke the will. The trial court ruled that although diverse inferences could be drawn from the evidence, Mrs. Lurio had failed to overcome the presumption, well established in Florida law, that a will which was in the possession of the testator before his death but cannot be located was destroyed by him with the intention to revoke. Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982); In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977).

Mrs. Lurio contends,, however, that the presumption never arose because the evidence did not prove that Mr. Lurio ever possessed the will. The trial court heard evidence from Marvin Moss, the attorney who drew the will, to the effect that it was his custom to deliver both the original and its executed copy to the maker of the will and that he gave the original to Mr. Lurio. Appellant testified that Mr. Lurio gave her an envelope which she then gave to her mother for safekeeping. Mrs. Lurio’s evidence, indicating that Mr. Lurio corrected a mistake on a copy of the will and that he began to prepare but did not complete deeds to property, is subject to conflicting inferences which are properly resolved by the trial court. Appellate courts should not disturb trial court findings in a probate matter unless substantial competent evidence fails to support the trial court’s findings. In re Yost’s Estate, 117 So.2d 753 (Fla. 3d DCA 1960). We are unable to find error in the trial court’s decision that the presumption of revocation was established by the evidence.

Addressing the trial court’s determination that Mrs. Lurio failed to present substantial and competent evidence to rebut the presumption of revocation, we conclude that where the evidence is susceptible of conflicting inferences, the trial court’s decision is favored with a presumption of correctness. Lee v. Dade County, 342 So.2d 846 (Fla. 3d DCA 1977). The inferences drawn by the trial court from the evidence are adequately supported. See In re Evers’ Estate, 160 Fla. 225, 34 So.2d 561 (1948).

Finding no merit in appellant’s remaining argument on newly discovered evidence, we affirm the decision of the trial court.

Affirmed.

       In an affidavit presented as newly discovered evidence and properly excluded by the court, Moss stated that he could not say with certainty which documents he handed to Mr. Lurio.


author: NESBITT, Judge.

text:
    Seymour GERBER, Rose Gerber, Harold Winter, and Halsey Publishing Company, Inc., Appellants, v. The KEYES COMPANY, Appellee. The KEYES COMPANY, Appellant, v. Seymour GERBER, Rose Gerber, Harold Winter, and Halsey Publishing Company, Inc., Appellees.
    Nos. 83-141, 83-330.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 27, 1984.
    Taylor, Brion, Buker & Greene and James C. Pilkey, Miami, for Seymour Gerber, Rose Gerber, Harold Winter, and Halsey Pub. Co., Inc.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Nancy Schleifer, Miami, for The Keyes Co.

      Before HUBBART, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

The Keyes Company (Keyes) had an exclusive listing to sell a building which the Halsey Publishing Company (Halsey) wanted to purchase. Halsey submitted an offer to the owner, Arroyo Investment Co., through Keyes. This offer was accepted, but the sale was not completed because of a foreclosure on the property. Arroyo bought back the building at the foreclosure sale and continued to list it exclusively with Keyes. Halsey submitted an offer to purchase through another real estate broker, Mr. Rose. This offer was rejected. At that time, Keyes’ exclusive listing had expired. The building was purchased by the Keyes Investment Co. A Keyes sales agent then contacted Halsey and Halsey took an assignment of the contract to buy the building. Mr. Rose contacted Keyes and threatened suit if he were not paid part of the brokerage commission because of the work he had done for Halsey. Keyes paid Mr. Rose $15,000.

Halsey asserted below that Keyes breached a duty owed to it by virtue of Keyes Investment Co.’s purchase of the property while Halsey had an offer outstanding. The trial court entered summary judgment in favor of Keyes. Halsey claims that Keyes acted improperly by bidding competitively against Halsey and by purchasing the building without informing Halsey. When acting as an intermediary between a seller and a prospective buyer a broker is under a duty to deal fairly and honestly with both parties. United Homes, Inc. v. Moss, 154 So.2d 351 (Fla. 2d DCA 1963). This duty arises from the fact that the broker is acting for both parties. Zichlin v. Dill, 157 Fla. 96, 25 So.2d 4 (1946). The general rule is that a broker cannot act for himself without full disclosure to the principals. Vining v. Smith, 343 So.2d 871 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 518 (Fla.1978). However, Halsey had abrogated its broker-client relationship with Keyes by submitting its last offer through another broker, Mr. Rose. See Melvin v. West, 107 So.2d 156 (Fla.2d DCA 1958), cert. denied, 111 So.2d 40 (Fla.1959) (nonexclusive listing contract terminated by seller’s execution of sales contract with buyer procured by another broker). Keyes’ exclusive listing on the building had expired. There was no longer a broker-client relationship of any kind between Halsey and Keyes. Therefore, Keyes no longer had a duty toward Halsey. Cf. Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927) (when broker undertakes to act for a purchaser and purchases for himself instead a constructive trust will be imposed in favor of the principal). A principal who is not a client must allege actively fraudulent conduct of a nature which is not present in this record to state a cause of action against a broker. See, e.g., Zichlin v. Dill, Ellis v. Flink, 301 So.2d 493 (Fla. 2d DCA 1974), cert. discharged, 374 So.2d 4 (Fla.1979). See also Gammage v. Turner, 206 So.2d 252 (Fla. 2d DCA 1967), cert. denied, 212 So.2d 870 (Fla.1968). Halsey has failed to state a cause of action against Keyes for breach of duty as a broker and the summary judgment is affirmed.

Keyes filed a counterclaim below, asserting that Halsey tortiously interfered with a business relationship. The damage asserted by Keyes was the amount of money Keyes paid to Mr. Rose. The trial court entered a directed verdict in favor of Halsey.

The elements of the tort of “interference with a business relationship” are: (1) the existence of a business relationship under which the plaintiff has legal rights; (2) an intentional and unjustified interference with that relationship by the defendant; and (3) damage to the plaintiff as a result of the breach of that business relationship. Ethyl Corp. v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), pet. for rev. denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Keyes had a contract with the Arroyo Investment Co. to act as its broker in selling a building Arroyo owned. This contract was never breached. Keyes received the full commission to which it was entitled under the contract. There is no cause of action for tortious interference with a business relationship in the absence of a breach. Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971). Therefore, Keyes has failed to state a cause of action against Halsey.

For the foregoing reasons, the judgments are both affirmed.


text:
    The STATE of Florida, Appellant, v. Eddie VARNEDOE, Appellee.
    No. 83-206.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Jim Smith, Atty. Gen., and Paul Mendel-son and Penny Brill, Asst. Attys. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   BASKIN, Judge.

The state appeals a trial court order suppressing out-of-court and in-court identifications of defendant Varnedoe. Finding error, we reverse.

Ronnie Young, the victim of an armed robbery, described his assailant to Police Officers Doan and Williams as a dark-skinned black male wearing a white shirt and blue jeans, 5'6" or 5'7" tall and weighing 130 to 140 pounds. Young particularly noted that his assailant had teeth like a “weasel.” The officers drove Young around the vicinity of the robbery and, after leaving Young at his home, continued to search for Young’s assailant. Approximately thirty minutes after the robbery occurred, Officer Williams spotted defendant Varnedoe, who fit the general description of the robber, but was not wearing a shirt. Varnedoe was standing outside a pool hall located a block from the scene of the robbery. Upon seeing the police, Var-nedoe entered the pool hall. He was followed by Officer Williams who went inside the hall to question Varnedoe. Officer Doan remained outside, where he found the purse taken from Young during the robbery. During the questioning, Officer Williams noticed Varnedoe’s unusual teeth. He placed Varnedoe in the patrol car and drove three or four blocks to Young’s home where Young positively identified Varne-doe as the individual who had committed the robbery. Upon motion and hearing, the trial court suppressed the show-up identification and the in-court identification, finding that although the initial detention was valid, no probable cause for Varnedoe’s arrest existed before he was transported to Young’s home and that section 901.151(3), Florida Statutes (1981) precluded transporting Varnedoe.

On appeal, the state contends that Varne-doe’s initial detention was based on probable cause; that transporting Varnedoe to Young’s home was proper as incident to an investigatory detention; and that the subsequent in-eourt identification should not have been suppressed as fruit of an unlawful detention because the victim’s independent recollection antedated the arrest, constituting a valid identification under United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

We agree with the state that probable cause to arrest Varnedoe appears in the record before us. We therefore reverse.

[P]robable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious [individual] in the belief that the person accused is guilty of the offense with which he is charged.... (citation omitted)

Trivette v. State, 244 So.2d 173, 175 (Fla. 4th DCA 1971); § 901.15(3), Fla.Stat. (1981).

The standard for determining probable cause is not the same standard of proof needed to support a conviction. Cross v. State, 432 So.2d 780 (Fla. 3d DCA 1983). The circumstances under review include a fairly full description, proximity of the stolen property to the scene of Varne-doe’s arrest, Varnedoe’s presence one block from the scene of the crime, and an attempt to elude police officers. These facts are sufficient to warrant a very cautious person’s belief that Varnedoe was guilty of the robbery for which he was detained. We therefore hold that the trial court erred in ruling the original detention unsupported by probable cause. See McKee v. State, 430 So.2d 983 (Fla. 3d DCA 1983).

Our disposition on the issue of probable cause renders it unnecessary for us to address the remaining issues advanced by the state. We note, however, that the state failed to raise the Crews issue in the trial court and therefore waived the argument.

For these reasons, we reverse the trial court's order suppressing the in-court identification and remand for further proceedings.

       Section 901.151(3) states:
      (3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.


text:
    TOBIAS KNOBLAUCH PRIVATE BANK, Appellant, v. SOUTHERN AERO TRADERS, INC., Appellee.
    No. 83-586.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Morgan, Lewis & Bockius and Angel Castillo, Jr., Miami, for appellant.
    Walton & Garrick and Wallace Garrick, Miami, for appellee.
    Before BARKDULL, NESBITT, and JORGENSON, JJ.
   NESBITT, Judge.

Tobias Knoblauch Private Bank (the Bank) appeals from an order awarding summary judgment in favor of Southern Aero Traders, Inc. (Southern) and discharging a lis pendens.

The Bank made a loan to Perkiomen to enable Perkiomen to purchase an aircraft. A term note and a security agreement were executed. The aircraft was described in the security agreement as collateral for the loan. Eventually this plane was purchased by Southern at a judicial forfeiture sale in the Turks and Caicos Islands. As Perkio-men was in default, the Bank sued Southern to foreclose the lien on the aircraft.

During the course of the litigation, without court order, the principal and accrued interest owing on the loan were paid in full. The trial court entered summary judgment, holding that the Bank could no longer have an enforceable security interest because of the repayment. The trial court made no decision as to whether the lien survived the forfeiture sale or whether the security agreement would have been enforceable against Southern if the indebtedness remained.

On appeal, the Bank contends that summary judgment was improper because the debt has not been paid in full. Under the terms of the note and security agreement, the Bank asserts, the collateral also secured the debtor’s liability to the Bank for attorneys’ fees, costs, and expenses incurred in collecting the debt and therefore payment of the principal and interest did not extinguish the security interest.

The actual validity of the security interest is not at issue here, as the summary judgment precluded a determination of this issue below. The sole question presented for review is whether, even presuming the validity of the lien, the Bank can have any remaining interest in the collateral after being paid all the principal and interest it was owed. The Bank claims to be entitled to attorneys’ fees and costs. The security agreement provides only that the lender is entitled to recover the costs and expenses incurred in collecting the debt. The security agreement does not state that the debtor is liable for attorneys’ fees. In the absence of an express provision in the security agreement making the debtor and successors in interest to the collateral liable for attorneys’ fees, no such liability can be imposed on Southern. See § 679.504(l)(a), Fla.Stat. (1981); see also § 679.506, Fla. Stat. (1981); cf. City of Orlando v. Sun Bank, N.A., 428 So.2d 769, 770 (Fla. 5th DCA 1983) (“lien rights preserved by section 932.703 should include and encompass attorney’s fees duly provided for by the security agreement ... ”) (emphasis added).

The Bank predicates its entitlement to attorneys’ fees on a clause in the note which provides that the debtor is liable for actual attorneys’ fees incurred in the collection of the debt. This term of the contract between Perkiomen and the Bank cannot be imposed on Southern by virtue of Southern’s becoming a subsequent possessor of the collateral. A note must be transferred by negotiation or assignment. See Margiewicz v. Terco Properties, 441 So.2d 1124 (Fla. 3d DCA 1983). This note was never assigned or negotiated to Southern. This situation is analogous to a transfer of mortgaged property without a transfer of the note representing the underlying obligation. A lien on mortgaged property follows a transfer of the note, Manufacturers’ Trust Co. v. People’s Holding Co., 110 Fla. 451, 149 So. 5 (1933), but the opposite is not true. A transfer of mortgaged property does not make the transferee liable on the note in the absence of an agreement to undertake such liability. Alabama-Florida Co. v. Mays, 111 Fla. 100, 149 So. 61, 64 (1933). Of course, the mortgagee can still proceed against the property, Hubbard v. Highland Realty & Inv. Co., 115 Fla. 834, 156 So. 322 (1934), just as the Bank has proceeded against the plane, but there is no personal liability of the subsequent purchaser of collateral for the underlying obligation. See § 679.112, Fla.Stat. (1981) (when collateral is not owned by the debtor, the owner is not liable for any debt or deficiency after resale). This being so, it is clear that Southern cannot be liable under the terms of the note on which it is not liable, where those terms differ from those of the security agreement. However, the security agreement does expressly provide that the debtor is liable for costs and expenses incurred in collection of the debt. If the lien is indeed valid against Southern, then it has not been extinguished, because the Bank has not been paid in full.

This cause is remanded with directions to determine whether the Bank’s lien is valid and enforceable against Southern, and, if so, the amount still owed to the Bank under the agreement.

      . Though instruments which are executed contemporaneously in one transaction are generally construed together, Policastro v. Rudt, 180 So.2d 472 (Fla. 2d DCA 1965), when the terms of the instruments differ it does not mean the terms of both will be imported completely into each instrument. Spadaro v. Baird, 97 Fla. 50, 119 So. 788, 790 (1929).


text:
    The STATE of Florida, Appellant, v. Vargas Vila JIMENEZ, Appellee.
    No. 83-685.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 23, 1984.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant, a person over the age of eighteen, was charged with sexual battery of a person eleven years of age or younger in violation of Section 794.011(2), Florida Statutes (1981). He entered a plea of guilty to this charge in reliance on the trial court’s pre-plea ruling that since the death penalty for this offense had been struck down as unconstitutional, and the offense was thereby no longer a capital crime, the defendant would be sentenced to life imprisonment without any requirement that he serve a minimum mandatory prison term of twenty-five years before becoming eligible for parole. The trial court, true to its earlier ruling, imposed a life sentence with no minimum mandatory prison term. The State appeals.

While the ruling of the trial court is not without support, see Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983) (defendant charged with sexual battery under Section 794.011(2) not entitled to twelve-person jury, since offense no longer capital crime after death penalty abolished); see also Rowe v. State, 417 So.2d 981 (Fla.1982), we agree with the decision of the Second District in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983), that

“even though sexual battery under Section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death penalty, the punishment for that crime must still be imposed under Section 775.082(1) to its constitutional limits. This means that one convicted under Section 794.011(2) must be automatically 'punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole.’ ” 429 So.2d at 1380.

Accordingly, we reverse the sentence imposed and remand the cause for the imposition of the sentence mandated by Section 775.082(1), Florida Statutes (1981), without prejudice, of course, to the right of the defendant to file an appropriate motion to vacate his conviction and plea as being made under a misapprehension of the sentence he would receive.

We hereby certify to the Supreme Court the following question as being one which will have a great effect on the administration of justice throughout the state:

Must a defendant convicted of a violation of Section 794.011(2), Florida Statutes (1981), be sentenced to life imprisonment with the requirement that he serve no less than twenty-five years before becoming eligible for parole, as provided in Section 775.082(1), Florida Statutes?
Reversed and remanded.

      . See Buford v. State, 403 So.2d 943 (Fla.1981).


text:
    Alex J. PELLINI, D.V.M., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION and Board of Veterinary Medicine, Appellees.
    No. 83-796.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Lister Witherspoon, IV, Miami, for appellant.
    James H. Gillis, Tallahassee, for appel-lees.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

This is an appeal by Alex J. Pellini, a licensed veterinarian, from a final order of the Board of Veterinary Medicine imposing a $1,000 fine upon him for failing to obtain a premises permit for certain low-cost spaying and neutering procedures performed by him on a one-day basis at an animal grooming shop in Key West, Florida, at the request of the local humane society. The Board concluded below that a premises permit for the animal grooming shop in question was required under Section 474.215(1), Florida Statutes (1981). We disagree. Such a permit is required under the statute only for an establishment where a veterinarian permanently practices and not, as here, an establishment set up for one-day veterinarian service. We agree entirely with the hearing examiner in this case who so concluded below. See Wakulla County v. Davis, 395 So.2d 540, 543 (Fla.1981).

The order under review is reversed and the cause is remanded to the Board with directions to dismiss the administrative complaint herein.


text:
    Sandra KAMINSKY, Appellant, v. TRAVELERS INDEMNITY COMPANY, a foreign corporation, and Jack Eckerd Corporation, d/b/a J. Byrons Department Stores and Steven Chait, Appellees.
    No. 83-876.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Hershoff & Levy and Jay M. Levy, Miami, for appellant.
    James 0. Nelson and Steven R. Adam-sky, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final order under review dismissing appellee Travelers Indemnity Company as a party defendant on the basis of section 627.7262, Florida Statutes (Supp.1982) (the “non-joinder” statute), is reversed upon the authority of VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), holding that while section 627.7262 is constitutional, it does not apply to incidents which occurred prior to October 1, 1982, the effective date of the statute. Since the plaintiffs complaint herein alleged that the incident giving rise to this action took place on or about December 15, 1981, the trial court erred in dismissing appellee pursuant to said statute.

Reversed.


author: NESBITT, Judge. BARKDULL, Judge

text:
    Wilner TALAN, as Personal Representative of the Estate of Andre Talan, a deceased minor, on behalf of the Estate of Andre Talan, and on behalf of Wilner Talan and Edenne Paul, individually, and as survivors of Andre Talan, deceased, Appellant, v. Robert MURPHY and Allstate Insurance Company, Appellees.
    No. 83-938.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 20, 1984.

      Keyfetz, Poses & Halpern and Mark Poses, Miami, for appellant.
    Adams, Ward, Hunter, Angones & Adams and Steven Hunter, Miami, for appel-lees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   NESBITT, Judge.

Within the two-year statute of limitations, Wilner Talan, in his individual capacity, commenced a wrongful death action for the loss of his minor son. After the applicable statute of limitations had expired, Talan procured his appointment as personal representative and, in this capacity, filed an amended complaint on behalf of his son’s estate and on behalf of himself and his wife, individually, and as survivors of their son. The amended complaint added damages for the child’s mother, the loss of the child’s net accumulations, and medical, burial, and funeral expenses. The trial court entered a final summary judgment in favor of the defendants on the basis that the amended complaint was barred by the statute of limitations because it was not filed by the personal representative within two years of the child’s death. Finding that the alterations to the complaint relate back to the original filing, we reverse.

As to the change in capacity, our supreme court has specifically addressed this issue in Griffin v. Workman, 73 So.2d 844, 846 (Fla.1954):

We think, therefore, that the issue is ruled by the ancient doctrine “that whenever letters of administration or testamentary are granted they relate back to the intestate’s or testator’s death. * * * The doctrine has been accepted with virtual unanimity, since it was promulgated, in a long line of cases.” Annotation 26 A.L.R. 1360. Under this doctrine “all previous acts of the representative which were beneficial in their nature to the estate and * * * which are in their nature such that he could have performed, had he been duly qualified, as personal representative at the time, are validated.”

The personal representative was the only person authorized to bring the wrongful death action. § 768.20, Fla.Stat. (1981). When Talan assumed the responsibility of bringing the action without having the appointment, he did so as an executor de son tort. Johnston v. Thomas, 93 Fla. 67, 111 So. 541 (1927). When he was later appointed executor, his letter related back to the death of the intestate and his acts as executor de son tort were thereby validated insofar as they were acts he could have performed had he been duly qualified as a personal representative. Griffin; 31 Am. Jur.2d Executors and Administrators § 679 (1967); see also Bermudez v. Florida Power & Light Co., 433 So.2d 565 (Fla. 3d DCA 1983) (letters of administration related back to action filed in name of personal representative before letters were issued). Nor was it necessary that Talan allege that he was the personal representative of the decedent’s estate in his original complaint. Fla.R.Civ.P. 1.120(a). If the defendant desired to place that matter in issue, he should have done so by specific negative averment. Fla.R.Civ.P. 1.120(a). Consequently, summary judgment was improperly granted on that basis.

Nonetheless, the appellee contends that the amended complaint, by the inclusion of new elements of damages, substantially changed the cause of action and should be barred. Again, we disagree. The statutory mechanism for bringing a wrongful death action, section 768.16, et seq., requires that the single cause of action for wrongful death be brought by the personal representative claiming each survivor’s damages as well as the expenses incurred by the estate.

It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims for damages which are properly recoverable by the personal representative under section 768.-21(6), Florida Statutes (1981), will also relate back. See Handley v. Anclote Manor Foundation, 253 So.2d 501 (Fla. 2d DCA 1971), cert. denied, 262 So.2d 445 (Fla. 1972). Thus, the personal representative’s claim for damages sustained by his wife, see Peters v. Mitchel, 423 So.2d 983 (Fla. 3d DCA 1982); Dye v. Houston, 421 So.2d 701 (Fla. 1st DCA 1982), as well as medical, funeral, and burial expenses and loss of net accumulations is viable without a statute of limitations bar.

For the foregoing reasons, we conclude that the entry of the summary judgment was erroneous.

Reversed and remanded.

BARKDULL, Judge

dissenting.

I respectfully dissent and would affirm the summary judgment under review.

The original cause of action was instituted by Wilner Talan in his individual capacity. After the statute of limitations had expired for bringing a wrongful death action he attempted to amend his complaint and sue in a representative capacity. The action sought to be revived in the amended complaint was time-barred by the applicable statute of limitations and the amendment could not relate back.

The majority, I believe, misreads the authority found in Griffin v. Workman, 73 So.2d 844, 846 (Fla.1954) and Bermudez v. Florida Power & Light Co., 433 So.2d 565 (Fla. 3d DCA 1983) because those causes were originally instituted in a representative capacity. This distinguishes them from the instant case wherein the cause was originally instituted in an individual capacity. In the cited authorities the defendants were put on notice of a potential claim by a representative of an estate within the applicable statute of limitations. In the instant cause this was not the case and I therefore feel the trial judge was eminently correct.


text:
    The STATE of Florida, Appellant, v. Dennis Craig SIMPSON, Appellee.
    No. 83-1312.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 23, 1984.

      Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellant.
    Emilio De La Cal, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The State of Florida appeals an order of the trial court granting appellee’s motion to suppress contraband.

Detective Machado of the Dade County Airport Interdiction Unit saw appellee disembark from an automobile at Miami International Airport without luggage and walk briskly to the same-day ticketing section of Eastern Airlines. At the time he wore deck-type shoes and trousers which fit loosely at the ankles. After a ten minute wait in line, appellee purchased a ticket and returned to the parking area in front of the airport. About an hour later he returned to the airport lobby, this time wearing high-top sneakers. The trousers which earlier fit loosely at the ankles were now snug with bulges. Appellee walked through the airport lobby area and went through a boarding gate security checkpoint. After clearing the metal detector device at the checkpoint, he was stopped by Detective Machado who displayed his badge and asked to speak with him. After an examination of appellee’s driver’s license and identification, appellee’s luggage was searched with his consent. The officer asked permission to check appellee’s ankles but appellee refused; appellee was then asked to raise his pants leg high enough to permit the officer to see what was causing the bulge. By this time, appellee was tense and rigid; the tone in his voice changed and his legs and hands began to tremble. He did not respond to the request to raise his pants leg.

Detective Thompson, who had joined Officer Machado on the concourse beyond the security checkpoint, announced that for the safety of the passengers on the plane he could not let appellee board without first checking his pants. He then patted the ankle region of appellee’s trousers, and after feeling the soft packaging, raised the trouser leg and discovered cocaine.

At the hearing on appellee’s motion to suppress, Officer Thompson testified that it was his experience that magnetometers often fail to detect weapons attached to an individual’s ankle; that a number of hijackings had occurred prior to that time; and that he wanted to be sure that the bulge was not caused by a weapon. The trial court, in suppressing the evidence, concluded that “the sole and only purpose of the stop was a search for contraband and there never was any valid, real or non-imaginary concern for the safety of the passengers” and “those facts relied upon by the arresting officers were too subjective in nature and never rose to the level of even an articulable suspicion.”

We have reviewed the entire record and conclude that it does not support the trial judge’s conclusions. First, there is no obvious reason, and none is given, why the officer’s testimony — that his stop of the defendant was at least in part based on concern for passenger safety — should have been rejected. Second, the bulging trouser leg of appellee, who was about to board a commercial airliner during a period of regular hijackings, was more than enough of a suspicious circumstance to justify further investigation. Where the trial court’s determination upon questions of fact at a hearing on a motion to suppress is clearly shown to be without basis in the evidence, the appellate court should reverse. See State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979), dismissed, 378 So.2d 348 (Fla.1979). See also United States v. Duckett, 583 F.2d 1309, 1313 (5th Cir.1978) (the trial court’s findings of fact on a motion to suppress must be accepted unless clearly erroneous; a finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed).

Based on the facts as they appear in the record, we reverse on authority of Shapiro v. State, 390 So.2d 344 (Fla.1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1981) (probable cause is not a prerequisite to a search in the security area of the airport conducted for the limited purpose of discovering weapons or devices which could be used in a hijacking; upon choosing to go through the security checkpoint so as to board a plane, a traveler consents to a search for that limited purpose); and State v. Campanponi, 424 So.2d 163 (Fla. 3d DCA 1983) (a security check for weapons and the like of an air traveler about to board a commercial airliner is akin to a border search; except where the search is exceptionally intrusive, in which case evidence of wrongdoing is required, the traveler’s fourth amendment rights are not violated by a security airport search). See also United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973) (suspicious traveler need not be given option to not board aircraft as an alternative to a reasonable search). The officer’s act of raising the trouser leg of appellee who was about to board a commercial airliner, in order to investigate a suspicious bulge in the ankle area, did not run afoul of the fourth amendment.

Reversed and remanded.


text:
    SAMS FOOD STORE, INC., Appellant, v. Daysee ALVAREZ, Appellee.
    No. 83-1346.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Mottlau & Wakefield, Daniels & Hicks and Elizabeth K. Clarke, Miami, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of Dade County, Florida denying appellant's motion to set aside a default entered against it in a negligence action. Appellant denied that it had ever been served and the trial judge entered an order setting forth that the appellant had never been served, notwithstanding the sheriffs return showing service.

The sole point on appeal is whether the trial court may decline to vacate a default judgment against a defendant where it has found that the defendant never was served with process. We find error and reverse. Upon finding that the defendant had never been served with process, the trial court was required to conclude as a matter of law that the default was entered without jurisdiction over the defendant. As was stated in Bussey v. Legislative Auditing Committee, 298 So.2d 219, 221 (Fla. 1st DCA 1974):

“Where the defendant does not enter a voluntary general appearance or otherwise waive service of process, the issuance and service of process is indispensable to the jurisdiction of the Court, even though the Court may have jurisdiction of the subject matter. * * * In short, the sufficient service of process initiates a case in the trial court, and until the case has been properly initiated, no determination of the adverse claims of the parties may be made.”

See also Mac Organization, Inc. v. Harry Rich Corp., 374 So.2d 81 (Fla. 3d DCA 1979).

Accordingly, the trial court’s order refusing to set aside the default entered against appellant is reversed.

Reversed.