author: WALDEN, Judge.

text:
    Patricia Marie RYAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-201.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Bennie Lazzara, Jr., of Bennie Lazzarra, Jr., P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen.; West Palm Beach, for appellee.
   WALDEN, Judge.

Patricia Marie Ryan was tried by jury and convicted of possession of cocaine and sentenced to five years in prison. She was also convicted of engaging in a criminal offense with weapons and sentenced to 15 years of probation. She appeals. We reverse and remand for a new trial because of prosecutorial misconduct which constituted harmful error under the concepts of State v. Murray, 443 So.2d 955 (Fla.1984).

Appellant asserts, and we agree, that she was denied a fair trial as a result of the improper and inflammatory comments made by the State Attorney during closing argument. As a preliminary matter, we point out that the prosecuting attorney and the appellate attorney for the state were not the same person.

Briefly, the facts are as follows: Appellant is a member of a well-to-do Palm Beach County, Florida family. The alleged criminal offenses took place at her father’s ranch, the Diamond T, in Martin County, Florida.

On March 1, 1981, appellant, a licensed realtor, went out to a building on the Diamond T called the “big house” for the alleged purpose of showing the ranch to some buyers. That same day, Tilton, an off-duty deputy, noticed a low flying, twin engine plane passing several times over the back property of the Diamond T. The plane aroused Tilton’s suspicion. He notified the sheriff who came out to the Diamond T and set up a surveillance. At that time, the sheriff observed two vehicles exiting from the back of the property. As soon as the vehicles left the ranch, they were stopped and searched by the sheriff. One vehicle contained parachutes, packages of cocaine, and guns, the other contained two air-to-ground radios, a walkie-talkie, a ham radio, and guns.

After the drivers and passengers were arrested, Officer Murphy spotted appellant’s car leaving the “big house” and then quickly returning. Murphy approached appellant and arrested her. She claimed that she had returned to lock up the house because the prospective buyers did not show up. No cocaine or weapons were found in appellant’s possession. At that time, Officer Murphy discovered David Deroscher exiting out the back of the “big house” and arrested him.

Deroscher turned out to be the State’s star witness. His trial testimony, revealed Robert Bogue as the leader of the drug drop operation. No direct evidence against appellant was elicited from Deroscher.

Because appellant was not in actual possession of the cocaine or the weapons, she was tried as an aider and abettor. The evidence used to convict appellant was purely circumstantial. We do not deny that a conviction can stand on circumstantial evidence alone. Navarro v. State, 262 So.2d 729 (Fla. 3d DCA 1972). Instead, we point out that in a close case, such as the one at hand, particularly careful attention must be given to improper prosecutorial comments. Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

As a general rule, improper prose-cutorial remarks can constitute reversible error when such remarks may have prejudiced and influenced the jury into finding the defendant guilty. Grant v. State, 194 So.2d 612 (Fla.1967).

The Florida Supreme Court recently expounded upon this issue in Murray, supra. Justice Shaw, speaking for the Court stated:

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

Id. at 956.

After having reviewed the record and having applied the harmless error rule pursuant to Murray, we find the remarks made by the prosecutor during closing cannot be considered harmless and demand a reversal.

Appellant argued that the prosecutor’s improper comments fell into the categories of 1) appeal to bias, passion and prejudice; 2) personal attacks upon defense counsel; 3) commenting on facts not in evidence; 4) law enforcement officers believed the defendant guilty; and 5) comment on defendant’s failure to testify. We reproduce them here with our notes, headings, legal analysis, and supplied emphasis.

1) Appeal to Bias, Passion, and Prejudice

The prosecuting attorney adopted, as a trial strategy, a rich versus poor theme which permeated the entire context of his final argument. As these comments illustrate, the prosecutor constantly emphasized the fact that appellant came from money and her attorney was an outsider from a big city:

But the rich get preferential treatment. She was not handcuffed on the way to jail, just as any one else would be treated. Her Palm Beach lawyer boyfriend comes up and wants the money back and they give that back, because she comes from .money, and unconsciously people tend to be subservient. And we are asking you not to be subservient to money.
But we have shown that a rich person’s daughter did do this. We' have shown that a rich person’s daughter didn’t have much money herself. Maybe Daddy had to work for his money, way back when, but the children ought to not live up to their parent’s potential. You’ve seen that before. Why should she, when Patty Ryan' can go out and make hundreds of thousands of dollars, according to Carter Osleber, in this, why should she toil like everyone else?
Now, will the truth surface? Will you people do something that later in your lives you’ll regret? Will you listen to the man from Tampa, and he can go back to Tampa, and we can all still live here in this community; and he says, “let her go. Let her walk out the door, because the State’s case is not there.” That this is all figments of someone’s imagination. Are you going to do that?

The man from Tampa is appellant’s attorney, Mr. Lazzara. This last comment is indicative of the prosecutor’s attempt to alienate appellant from the Martin County jury.

At the time of this trial much publicity was circulating concerning cocaine and the life-in-the-fast-lane mode of living adopted by some Palm Beach residents. As indicated by the statement below, the prosecutor attempted to persuade the jury that appellant fitted into that jet-set scene. It is interesting to note that the record reveals appellant and her family were from West Palm Beach not Palm Beach as the prosecutor suggests.

There’s been a lot of publicity recently about the lifestyle in Palm Beach and some of you may find it interesting, but I think it proves a point. When you come from a rich family — and it’s hard to live up to what your parents have shown, or your parents have been able to achieve — and you can either try to repeat and do as well as your parents did, or you can try to cheat and get there through quick means. That’s what’s wrong with this whole society today. Nobody wants to work for their money. Everyone is out to get rich quick. Patricia Ryan found a quick way to make money. That’s all she’s tried to do.
And also there tends to be this excitement. It’s life in the fast lane with cocaine. You’ve seen Time Magazine covers, I’m sure you’ve heard about it on T.V. It’s an exciting drug. Movie stars take it. Movie stars get killed by taking it. It rules people's lives, but it’s also exciting.

In continuing the “rich” theme, the prosecutor attacked appellant's family and attempted a creative link between her and Patricia Hearst.

The defense brings with him a whole flange of people, half of which have nev- ■ er even been identified. I don’t know who they are. Maybe you do. And they packed the courtroom with family members, to try — again, it’s an intimidation move to show — or they’re trying to impress you that rich will win out; that because she’s rich or that her parents are rich, that that is going to affect your decision.
There was a trial not too long ago, that you may recall, that involved another Patty, another rich Patty. Another rich Patty whose parents wanted to buy a fancy attorney to deal with the case and to hope to float some ridiculous defense to the jury. Her name was Patricia Hurst, [sic] The jury didn’t buy that one, did they?
MR. LAZZARA: Your Honor, I’m going to object to this line of argument. I don’t know what relevancy it has and it’s improper argument, and I believe I’ll object to it on those grounds.
THE COURT: It’s just argument. I told the jury before what the lawyers say isn’t evidence it’s just argument. It’s just there to help you, if you see fit to accept it, but you can reject it. I’ll overrule the objection.

No doubt spurred on by the trial judge’s seeming acquiescence of his trial tactics, the prosecutor continued his prejudicial attack.

And I call on Mr. Lazzara, in his closing, to tell us the evidence they’re relying on. Don’t tell us what the family wants him to say ... but we’re not going to let you ruin our State and our community; until the jury is able to do that, we're going to get nowhere.
So, this case is definitely on your conscience, ladies and gentlemen. Your decision — and you’ve seen the numbers of the news media out there and the precautions taken so that you wouldn’t be influenced. Why? Because it’s a big case for that reason.
Will this group tell the community they felt that the defendant had guilty knowledge of what was going to transpire? Or will they get caught up in words, like the Hinckley jury, and do something that later they regretted, because they felt they were confused.
Tell us, tell the community, that Patricia Ryan is guilty and that you’re not going to let her go back to Palm Beach and thumb her nose at small Martin County and say, “Well, we really pulled one over those guys. Can you believe that?” It’s on your conscience.

These comments were not only in poor taste and unprofessional, but also highly inflammatory. The comments pitted Martin County jurors against a Palm Beach County defendant in such a way as to make the juror’s impartiality most unlikely. Additionally, it was unfair and improper for the prosecutor to have characterized appellant as a rich, manipulative, fast woman where the sterotypical classifications were not derived from testimony of witnesses but rather from the prosecutor’s own prejudicial characterizations. “There is no reason, under any circumstances, at any time for a prosecuting attorney to be rude to a person on trial; it is a mark of incompetency to do so.” Green v. State, 427 So.2d 1036, 1038 (Fla. 3d DCA), pet. for rev. denied, 438 So.2d 834 (Fla.1983).

Some of the more disturbing comments in this category are those which ask the jury not to set appellant free into the community; not only because she’s a liar but because she’s rich and will thumb her nose at “small Martin County.” These comments are very similar to the prosecu-torial comments condemned in Davis v. State, 214 So.2d 41 (Fla. 3d DCA 1968). Arguments which beseech the jury to convict a defendant for any reason except guilt are highly prejudicial and are strongly discouraged.

2) Personal Attacks on Defense Counsel

Aside from referring to Mr. Lazzara as a fancy attorney and out-of-towner, the prosecutor accused him of not being totally honest with the jury.

I call upon Mr. Lazzara to be honest with you and to be open with you and to say, “Yes, these people were involved, but no, my client wasn’t.” But he’s playing hide-the-ball.
So any argument by the attorney from Tampa that tries to say, “Well, she didn’t know it was cocaine,” again, as he said in his opening statement, that is not being honest with you, and it doesn’t matter under the law.
He talked about the money, it’s no big deal. Twenty-six hundred dollars in twenty dollar bills. Maybe in Tampa and maybe in Palm Beach, this is no big deal. But on a Sunday afternoon to be carrying this type of money? But again, we should just dismiss that. We shouldn’t even consider it. In fact, if you recall, every item of evidence was objected to. Every item of evidence was objected to. If our case was so weak, if we had nothing, what was Mr. Lazzara afraid of?
MR. LAZZARA: Your Honor, I’m going to object to that line of argument. It’s totally improper and the Court’s instruction will explain that. I object to him arguing in that regard.
THE COURT: Well, I’ve already told the jury at the outset that it’s the attorney’s obligation to object when they feel there is a legal objection, and they should not speculate on why an objection was made or what was going to be said, so I won’t repeat that, other than I’ve just done.

Resorting to personal attacks on the defense counsel is an improper trial tactic which can poison the minds of the jury. Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).

3) Commenting on Facts Not in Evidence

The following statements are deemed to be impermissible comments on facts not in evidence.

What type of real estate agent, again, is going to show people like Robert Bo-gue — you saw what Robert Bogue looked like, and Humberto; a couple of hooligans dressed in casual clothes — a million-dollar property and not suspect anything was wrong.
The above quote refers to appellant as the realtor.

Bogue was not a witness at the trial and the jury saw no photographs of him. The following prosecutorial remark concerns hearsay which was not allowed at trial.

This is Jake Valley, who owned the plane. This is Jake Valley, that when Jay King and Detective Lockwood went out to interview him, he tricked them into saying, “Well, I’ll meet you at such and such an address,” and when they go there that’s a law office. And the attorney says, “He’ll answer two questions.” Now, isn’t it a coincidence that Jake’s number is inverted the same way that Pat’s number is inverted.

Next the prosecutor made the unsubstantiated comment that the Diamond T had been used for other drug drops.

You got Robert Bogue being out at the Diamond T. Ranch. The ranch that Detective Murphy had said had been used repeatedly for drug drops. We have Robert Bogue there on Thanksgiving. We have him there on Super Bowl Sunday. And we have him there finally on the Sunday that this case happened.

The State made no attempt to explain or justify these comments. It is improper to refer to extra-testimonial facts during a final argument. Unsubstantiated statements which concern references to other crimes committed by a defendant are particularly condemned by the Florida courts.

When statements or intimations are made by a prosecuting attorney in his argument to a jury that an accused has committed other crimes than that for which he is on trial, this constitutes error unless there is evidence in the record from which the jury could infer the commission of another crime by the accused. Simmons v. State, 1939, 139 Fla. 645, 190 So. 756, 758.

Ailer v. State, 114 So.2d 348, 351 (Fla. 2d DCA 1959); see also Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979); Fitzgerald v. State, 227 So.2d 45 (Fla. 3d DCA 1969). The statement concerning the numerous other drug drops at the ranch can certainly be interpreted as meaning appellant had knowledge of and perhaps participated in those illegal activities. The record does not reveal proof of the other drops or appellant’s possible involvement.

4) Law Enforcement Officers Believe Appellant was Guilty

The comments set forth below im-permissibly suggest that the State of Florida feels that appellant was guilty and would not have wasted time and money prosecuting the case if she was not guilty. The prosecutor is also taking it upon himself to vouch for the State’s evidence.

And Sheriff Holt and Jay King, you’ve heard their testimony. They’re sitting over there. Do you think that they would bring this to you and have the State spend its time and money if there wasn’t evidence that they wanted you to consider? So, there’s common sense. Common sense has to be used here.

See Buckhann v. State, 356 So.2d 1327 (Fla. 4th DCA 1978), and United States v. Phillips, 664 F.2d 971 (5th Cir.1981).

5) Comments on Appellant’s Failure to Testify

Below are the comments which we believe could be reasonably interpreted as a failure of appellant to testify.

But we’re asking you — she is telling you that she’s not guilty of these crimes, and we’re telling you, from the evidence, that she had participation.
You’re here to determine whether she is guilty or whether she’s not guilty, and innocent like she is claiming.
What would reasonable people say about that? They’d say, “That’s not true. She’s lying.”
The pilot had to make a connection with the defendant, for some reason that we will never know at this trial, the pilot had to call Patty Ryan.

The general rule used in determining whether or not a prosecutor’s statements are impermissible comments on appellant’s failure to testify is set forth in the oft-cited case pf Trafficante v. State, 92 So.2d 811 (Fla.1957).

[O]ur law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. This is true without regard to the character of the comment, or the motive or intent with which it is made, if such comment is subject to an interpretation which would bring it within the statutory prohibition and regardless of its susceptibility to a different construction.

Id. at 814.

Constantly referring to the appellant as actually “lying,” “claiming” or “telling” the jury something is sure to be construed as an improper comment on her failure to testify no matter how subtle the innuendo. Shepard v. State, 436 So.2d 232 (Fla. 3d DCA 1983).

At this point it is necessary to discuss the nature and sufficiency of defense counsel's objections to the prosecutor’s misconduct. Defense counsel objected twice during the State’s closing argument and at the end objected again and moved for mistrial. However, he failed to object to many of the egregious prosecutorial comments.

Although prosecutorial misconduct can amount to reversible error the defense counsel must object to the improper comments and move for mistrial at least at the end of the state’s argument in order to preserve the error for appeal; Clark v. State, 363 So.2d 331, 333 (Fla.1978); State v. Cumbie, 380 So.2d 1031 (Fla.1980).

However, if the improper comments rise to the level of fundamental error, then multiple objections are not necessary. Peterson, supra.

“Fundamental error,” which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.

Clark at 333.

When does prosecutorial misconduct amount to fundamental error and thus become an exception to the contemporaneous objection and motion for mistrial rule? When the prosecutorial argument taken as a whole is “ ‘of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception.’ ” Peterson at 1234, citing Ailer, supra.

Mr. Lazzara indicated in the appellant’s brief that because of the trial judge’s response to the objections he did make and because of the general atmosphere of the trial, he felt continuous objections would have a detrimental effect on. appellant’s case. We recognize that at the trial level an attorney is in the best position to interpret the atmosphere and then determine what trial strategy will be most effective and proper. However, when it becomes apparent that the prosecutor may be prejudicing the jury, it is paramount for the defense counsel to preserve the error for appeal by making timely objections.

We hold that the comments made, during the State’s closing argument were of such a prejudicial magnitude as to amount to fundamental error. As a result, appellant was denied a fair trial. In a close case, such as the one at hand, where the jury is walking a thin line between a verdict of guilt and innocence, the prosecutor cannot be allowed to push the jury to the side of guilt with improper comments such as these. We do not intend this opinion to frustrate prosecutorial zest or inhibit the State in preparing trial strategy. We only point out that over zealousness in prosecuting the State’s cause can work against justice, rather than for it.

We do not find it necessary to reach the other issues raised on appeal. However, one other point raised by appellant has merit. Appellant argues that the prosecutor was allowed to rehabilitate the State’s star witness, Deroscher, before his credibility had been attacked.

During direct examination, the prosecutor questioned Deroscher in the following manner concerning a pretrial statement made to the defense counsel.

Q Okay, and during that statement did he ask you a lot questions about the case?
A Yes, he did.
Q Quite in-depth?
A Yes sir.
Q And did you tell him the complete truth during that statement?
A No sir, I don’t believe I did, no.
Q Did you tell some things in that statement that were in fact outright lies or not — or not the entire truth?
A Yes, I did.
Q And what did you tell him to the best of your recollection that was not true? I know it’s a lengthy statement but do you remember any part of it?
MR. LAZZARA: Your Honor, I’m gonna object to him impeaching his own witness here. I don’t think that is proper, I think that is proper cross examination and I intend to go into the lies that he told me in that statement and I don’t think he can do it now.
THE COURT: Well, I’ll overrule the objection.
MR. KIBBEY: Thank you, Your Hon- or.
BY MR. KIBBEY:
Q Do you recall any of the parts of your statement, David, in which you told the defense attorney that were in fact not true?
A The fact that Patty had asked me if I had heard a plane. The fact that she had picked up the walkie-talkie and the fact that I had heard her call the code names.
Q, With reference to those three areas what did you tell him about it?
MR. LAZZARA: Your Honor, I — I’d have a continuing objection to that line of questioning.
THE COURT: Well, I don’t recognize continuing objections cause it puts the-burden upon me to know when to object. No, I’ll — I’ll—you make the objections.
MR. LAZZARA: Then I object to that question, I’m sorry.
THE COURT: Okay, I’ll overrule the objection.
BY MR. KIBBEY:
Q Do you understand the question as to those three areas? What — what did you tell him during your deposition?

This is clearly impeaching one’s own witness in contravention of Section 90.-608(l)(a), Florida Statutes (1983).

The State attempts to justify this line of questioning by claiming that the prosecutor was not impeaching Deroscher but instead, explaining the prior statement. The State, in anticipating defense counsel’s use of the prior inconsistent statement to impeach Deroscher, turned the tables by confronting him with the statement first.' Deroscher was then given the chance to “explain” his untruthfulness by showing that he was concerned for the safety of his family due to the threatening phone calls. While it may not have been the prosecutor’s specific intention to attack Deroscher’s credibility, the prosecutor’s questions had the effect of impeaching Deroscher in one breath by showing the inconsistent statement, and in the next breath, rehabilitating Deroscher by allowing him to explain the reason he lied. Not only does this scramble the orderly procedure laid out by the Florida Rules of Evidence, but it robs the defense counsel of an important strategic tool used in cross-examination, that of impeachment of a witness through the use of prior inconsistent statements. Reese v. State, 382 So.2d 141 (Fla. 4th DCA 1980).

Accordingly, we reverse the judgment and sentence and remand for a new trial.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    J.D. MacRAE, Jr., Appellant, v. CESSNA AIRCRAFT COMPANY, Appellee.
    No. AW-335.
    District Court of Appeal of Florida, First District.
    Sept. 27, 1984.
    Rehearing Denied Nov. 13, 1984.
    John B. Culp, Jr., of Donovan, Maloof, Culp & Kennedy, Jacksonville, for appellant.
    Victor M. Halbach, of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee.
   THOMPSON, Judge.

MacRae appeals a summary final judgment in favor of the defendant Cessna Aircraft Company (Cessna) which found that the 12-year statute of limitations set out in § 95.031(2), Fla.Stat. barred his products liability claim. MacRae contends that § 95.031(2) is unconstitutional as applied to him, that § 95.031(2) unconstitutionally denies him equal protection of law, and that there remain genuine issues of material fact which should have precluded summary judgment. We affirm.'

On July 4, 1975, MacRae was piloting a Cessna aircraft which crashed, allegedly due to a manufacturing defect in its throttle control mechanism. On April 20, 1977, the passengers of this aircraft filed suit against numerous defendants, including appellant-MacRae and appellee-Cessna. Ma-cRae filed a cross-claim against Cessna and other defendants on September 7, 1977. Cessna asserted the affirmative defense, among others, that the statute of limitations set forth in § 95.031(2) had run. The trial court entered summary final judgment in favor of Cessna because MacRae’s cross-claim was filed more than 12 years after May 27, 1965, the date the aircraft in question was delivered as a completed product to the original purchaser and the date the § 95.031(2) statute of limitations began to run. MacRae appeals this summary judgment.

Sections 95.11(3) and 95.031(2) provide that products liability actions must be commenced within four years of the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, but that in any event such actions must be commenced within 12 years after the date of delivery of the completed product to its original purchaser, without regard to the date the defect in the product was or should have been discovered. Section 95.-031(2) creates an absolute bar to the filing of a products liability case more than 12 years after the date of delivery of the completed product to the original purchaser.

At first glance it would appear that neither of appellant’s contentions as to the unconstitutionality of § 95.031(2) has any merit in view of the Florida Supreme Court’s decision in Purk v. Federal Press Company, 387 So.2d 354 (Fla.1980), which held that § 95.031(2) does not deny equal protection of laws and does not deny right of access to the courts. Purk specifically held § 95.031 constitutional against an equal protection challenge because it rationally treated differently persons in different circumstances. However, the constitutional challenge based on denial of access to the courts is not as clearly settled by Purk. In Purk the 12-year statute of limitations had run prior to the effective date of the statute creating that limitation, but the court held that because the savings clause of § 95.022, Fla.Stat. extended by one year the deadline for instituting existing causes of action which would otherwise have been extinguished by the new 12-year limitation, the statute did not abolish the cause of action but merely shortened the period within which suit could be commenced. Although shortened, the court found that the one-year extension of time for bringing the suit was ample and reasonable and that it did not altogether forestall the bringing of an action.

MacRae contends that the time limitation in § 95.031(2) is unconstitutional as applied to him because the time for filing his action could have expired only two or three days after his cause of action arose. If MacRae’s cause of action had not arisen until two or three days before the statute had run, the statute would be unconstitutional as applied to him because he would not have had a reasonable and ample time within which to file his action. However, it is clear from the record that MacRae had approximately 22 months from the date his cause of action arose, the July 4, 1975 crash, until the 12-year statute of limitations ran in May of 1977, 12 years after the aircraft was delivered as a completed product to its original purchaser. In the recent case of Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1984), the court, in interpreting § 95.11(3)(c), Fla.Stat. (which for purposes of this opinion is identical in effect to § 95.031(2), Fla.Stat.), held as follows:

[F]or § 95.11(3)(c) to be unconstitutional as applied, it must operate as an absolute bar to bringing an action. If § 95.-ll(3)(c) only shortens the time period in which the action may be brought to a reasonable amount of time, then the Florida Constitution is not violated. 451 So.2d 463, 466, 467.

Twenty-two months is a reasonable and ample time within which to bring the action and almost twice the time that the Supreme Court held was reasonable and ample in cases where the 12-year period had expired prior to the effective date of the statute.

The legislature has authority “to adopt a statute of limitations which retroactively shortens a period of limitation, providing a reasonable time is allowed by the statute within which to file suit, where there is manifest legislative intent to retrospectively shorten the period....” Foley v. Moms, 339 So.2d 215, 216 (Fla.1976). The enactment of the savings clause, § 95.022, manifests a legislative intent to retrospectively shorten the period and there was a reasonable time within which MacRae could have filed suit in this case. Section 95.031(2) is therefore constitutional as applied to MacRae.

We find no genuine issues of material fact which should have precluded summary judgment and the judgment is AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


author: SHARP, Judge.

text:
    Clifford Wayne GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 83-328.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 1984.
    Rehearing Denied Nov. 5, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Gordon was charged, tried, and convicted in the same criminal prosecution of murder in the second degree, DWI manslaughter, and leaving the scene of an accident with injuries. He received separate sentences for each crime. Appellant argues that the evidence was insufficient to convict him of second degree murder, and the trial court erred in allowing him to be convicted and sentenced for two homicides when there was only one victim. We find the evidence sufficient to sustain the jury’s second degree murder verdict. However, we agree error was committed on the second point.

The record shows that both homicide charges arose out of the same factual occurrence. While intoxicated, Gordon drove his pickup truck at 2:00 p.m. on a multi-lane highway. He caused a chain reaction collision when he rammed into a Datsun automobile in front of his truck. Janet Hexham, the victim, was driving a Corvette in front of the Datsun.

After the Datsun hit her vehicle, Hex-ham exited her Corvette to assess the damage. Gordon pulled out of the blocked traffic lane into the open one, intending to flee the accident he had caused. Hexham stepped into the open lane and raised her arms as if to flag him down. But Gordon continued to accelerate. He smashed into Hexham and, after throwing her body ahead of the truck, he ran over her again. Hexham died as a result of the injuries she received. Gordon caused several more accidents before his vehicle finally came to rest, one-half mile away from where Hex-ham was struck.

The rule in Florida has always been that when there is but one death, there can be only one conviction for homicide. Brown v. State, 452 So.2d 605 (Fla. 2d DCA 1984) (DWI manslaughter and vehicular manslaughter); Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984) (DWI manslaughter and vehicular homicide); Platt v. State, 449 So.2d 891 (Fla. 2d DCA 1984) (DWI manslaughter and vehicular manslaughter); Johnson v. State, 419 So.2d 1144 (Fla. 2d DCA 1982) (DWI manslaughter and vehicular manslaughter); Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981) (premeditated murder and felony murder); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981) (second degree murder and first degree murder); Ubelis v. State, 384 So.2d 1294 (Fla. 2d DCA 1980) (DWI manslaughter and vehicular homicide); Thomas v. State, 380 So.2d 1299 (Fla. 4th DCA 1980) (DWI manslaughter and manslaughter by culpable negligence); Brown v. State, 371 So.2d 161 (Fla. 2d DCA 1979) (DWI manslaughter and vehicular homicide); Miller v. State, 339 So.2d 1129 (Fla. 2d DCA 1976) (DWI manslaughter and manslaughter by culpable negligence); Stridden v. State, 332 So.2d 119 (Fla. 1st DCA 1976) (DWI manslaughter and manslaughter by culpable negligence); Phillips v. State, 289 So.2d 769 (Fla. 2d DCA 1974) (DWI manslaughter and manslaughter by culpable negligence).

The rationale for the rule was that double jeopardy, U.S. CONST, amend. V; Art. I, § 9, Fla. Const., bars the double convictions because one homicide is a lesser included offense of the other. However, in view of recent decisions by the Florida Supreme Court and the United States Supreme Court, it is unclear whether double jeopardy applies to bar two homicide convictions in the context of one criminal proceeding.

Apparently all we need to do in analyzing double jeopardy in this kind of case is look solely to the statutory elements of each crime. State v. Baker, 456 So.2d 419 (Fla.1984); Bell v. State, 437 So.2d 1057 (Fla.1983). If each has a different element not required to prove the other, then there are two separate and distinct crimes for' which multiple convictions may be imposed. Apparently it does not matter that both crimes are in fact proved by the same facts (in this case, the death of the same homicide victim), or that one crime is an included (but not necessarily) lesser offense of the other (old Category IV, Brown v. State, 206 So.2d 377 (Fla.1968), or current Category II, see Baker).

Based on that analysis, the two crimes in this case are different, and double jeopardy does not bar convictions for both in the same criminal case. Second degree murder is defined as:

The unlawful killing of a human being when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.-083, or s. 775.084.

§ 782.04(2), Fla.Stat. (1981). DWI manslaughter is defined as:

If, however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.-083, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.

§ 860.01(2), Fla.Stat. (1981). DWI manslaughter requires proof of driving a vehicle while the driver is intoxicated. Second degree murder does not require that element. Second degree murder requires proof that the defendant did “an act imminently dangerous to another which evinces a depraved mind.” DWI manslaughter does not require proof of this mental element. Further, DWI manslaughter is not listed as a Category I or a Category II lesser included offense of second degree murder.

In the context of a single prosecution, the United States Constitution provides that these two crimes may be charged and convictions may be obtained for both. Ohio v. Johnson, — U.S. —, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). However, it is still not clear whether separate sentences may be imposed for both crimes. The Court said in Johnson:

While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.

— U.S. at —, 104 S.Ct. at 2541.

The Johnson Court also stated that double jeopardy should be employed by the courts “to ensure that the sentencing discretion of courts is confined to the limits established by the legislature.” Id. In this regard, our Florida Supreme Court recently held that section 775.021(4) only applies to necessarily lesser included offenses. Baker. Therefore, no sentencing policy of this state would be violated if two sentences were imposed in this case.

Because of the weight of authority in Florida behind the rule barring double homicide convictions for the killing of one victim, and the logic of not allowing double punishment for a lesser (but not necessarily) included offense, Johnson, we hold that Gordon’s conviction for DWI manslaughter should be vacated. However, in view of the need for further clarity of these issues, and their great public importance, Fla.R. App.P. 9.030(a)(2)(A)(v), we certify the following questions to the Florida Supreme Court:

I.IS DWI MANSLAUGHTER A POSSIBLY LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?
II.DOES THE DOUBLE JEOPARDY CLAUSE OF FLORIDA’S OR THE UNITED STATES’ CONSTITUTIONS BAR CONVICTIONS FOR BOTH OF THESE CRIMES IN A SINGLE CRIMINAL PROSECUTION WHERE THERE WAS ONLY ONE HOMICIDE VICTIM?
III.DOES THE DOUBLE JEOPARDY CLAUSE OF FLORIDA’S OR THE UNITED STATES’ CONSTITUTIONS BAR IMPOSITION OF SEPARATE SENTENCES FOR THE CONVICTIONS OF THESE TWO CRIMES RENDERED IN A SINGLE CRIMINAL PROSECUTION, WHERE THERE WAS ONLY ONE HOMICIDE VICTIM?

AFFIRMED AS MODIFIED; CONVICTION FOR DWI MANSLAUGHTER VACATED.

ORFINGER, J., and BLOUNT, URIEL, Jr., Associate Judge, concur.

      . § 782.04(2), Fla.Stat. (1981).

      . § 860.01(2), Fla.Stat. (1981).

      . § 316.027, Fla.Stat. (1981).

      . Gordon was sentenced to the Department of Corrections for his natural life for murder; fifteen years for DWI manslaughter (to run concurrently with the life sentence); and one year for leaving the scene (to run consecutively to the other two sentences).

      .His blood alcohol level later tested at .259.

      . Vehicular homicide is, however, and DWI is a lesser included offense of that crime. See Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984).

      . Section 775.021(4), Florida Statutes (1981), provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode. ...
      In 1983 the legislature changed the language of section 775.021(4); however, there apparently has been no change in the meaning of that statute. The supreme court’s interpretation in State v. Baker, Case Nos. 63,269 and 63,135, 456 So.2d 419 (Fla.1984), is what the legislature presently intends.

      .Art. I, § 9, Fla. Const.


author: CAMPBELL, Judge.

text:
    ENNIA SCHADEVERZEKERING, N.V., Appellant, v. MULBERRY MOTOR PARTS, INC., Appellee.
    No. 83-2621.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
    Rehearing Denied Oct. 29, 1984.
    Thomas D. Lardin of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellant.
    Nathaniel G.W. Pieper of Lau, Lane & Pieper, P.A., Tampa, and James P. Hahn of Hahn, Breathitt, Roberts & Watson, P.A., Lakeland, for appellee.
   CAMPBELL, Judge.

Appellant, Ennia Schadeverzekering, N.V., appeals the trial court’s final judgment holding it liable under a policy of yacht insurance insuring appellee’s forty-one foot Striker Sport Fisherman. We affirm.

Appellant raises two points on appeal:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE INSURED’S USE OF THE SUBJECT VESSEL IN ST. THOMAS AND IN VENEZUELA FAILED TO CONSTITUTE CHARTERING OF THE VESSEL AND WAS THEREFORE NOT A VIOLATION OF THE PRIVATE PLEASURE WARRANTY AS CONTAINED IN THE APPLICABLE INSURANCE POLICY?
II. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT A VIOLATION OF THE PRIVATE PLEASURE WARRANTY, AS CONTAINED IN THE APPLICABLE INSURANCE POLICY, SUSPENDS COVERAGE RATHER THAN TERMINATES COVERAGE AS OF THE DATE OF THE VIOLATION?

Appellant’s policy insured appellee’s vessel during the policy period of July 24, 1982 to July 24, 1983.

Appellee owned and maintained its vessel for the purpose of sport fishing by appel-lee’s owner, Mr. William A. Read, and his family and friends and clients of Mr. Read and appellee. Appellee hired and maintained a full-time captain and crew for the boat.

During the month of July, 1982, Mr. Read spent most of the month on the vessel in and around the Caribbean Island of St. Thomas. The vessel stayed in and around St. Thomas during August and into September, when the captain and crew took the vessel to Venezuela where Mr. Read was to join the vessel and fish, but was unable to do so because of business.

During the time the vessel was in St. Thomas and Venezuela and not being used by Mr. Read, the boat was used by friends of Mr. Read and the vessel’s captain. The captain collected from those friends who used the boat $500 to $600 per day, plus expenses, to help defray crew expenses while away. No accounting or remittance of these monies was made to appellee. The charges were not for the purpose of making a profit.

On November 18, 1982, as the vessel was returning to Florida from St. Thomas, it burned, sank and was totally lost. At the time of the loss, only the regular captain, his wife and crew, were aboard and the vessel was not under charter.

The issues appellant present arise because of a clause in the policy defined as a “Private Pleasure Warranty.” That warranty is contained in the portion of the policy described as “General Conditions and Warranties Applicable To All Coverages Unless Otherwise Indicated.” The “Private Pleasure Warranty” provides as follows: .

The Assured covenants and agrees that the Insured Yacht will at all times be used solely for private pleasure purposes and all coverage under this policy shall terminate upon the chartering or hiring of the Yacht for any purpose or upon the use of the Yacht for other than private pleasure purposes, unless the previous written consent of the Company has been obtained.

Appellant contends that the use of the vessel by friends of the captain and owner for a charge of $500 to $600 per day, constituted a charter or hiring of the vessel so as to breach the private pleasure warranty and, thereby, completely terminate and void its policy of insurance. Appellee contends on the other hand, and the trial judge so found, that the use and payment of the charges by friends did not constitute a charter or hire.

Appellee further contends, and the trial judge also found, that even if such activity constituted a charter or hire, the private pleasure warranty should not be construed to completely terminate or void the policy, but only suspend its coverage during such activities. The loss occurred when the vessel was clearly not under charter or hire, thus, appellee argues, and the trial judge found, that coverage existed at the time of the loss.

Because we affirm the trial judge’s finding in regard to appellant’s second point, we do not address the issue of appellant’s first point in regard to whether the use by friends of the captain or owner, upon payment of the $500 to $600, constituted a charter or hire.

We construe the private pleasure warranty as bringing about only a temporary termination or suspension of coverage during such time as there might have been a breach of the warranty. Since it is undisputed that there was no breach of warranty at the time appellee’s vessel vas lost, coverage existed.

It is a general rule of construction in insurance law, particularly applicable to a time policy of marine insurance, that where the language of a policy of insurance may be construed in various ways, a construction that will avoid forfeiture of coverage is preferred. Henjes v. Aetna Ins, Co., et al., 132 F.2d 715 (2d Cir.1943). It is also true that where exclusions are clearly stated, they should be upheld, but where terms of a policy are irreconcilable and the intent to provide coverage is not easily discernable, the construction which provides the most coverage should be adopted. Coleman v. Valley Forge Insurance Company, 432 So.2d 1368 (Fla. 2d DCA 1983). As the court in Henjes held, where the insurers meant to completely terminate the policy for the remainder of its term upon a breach of warranty, that intent should have been made convincingly clear. Henjes at 719.

As the court in Reliance Insurance Company v. The Escapade, 280 F.2d 482, 487 (5th Cir.1960) held:

[P]romissory warranties do not really forfeit the contract as that awesome term is normally understood. Consistent with the law’s abhorrence of the harsh consequence of forfeiture, violations of such policy provisions are looked upon as bringing about a temporary “forfeiture” which is more accurately described by the term now generally used — coverage of the policy is suspended. “Consequently coverage is not permanently destroyed. It is suspended so long as, but only so long as the violations of the specified basic policy requirements continue. Equally clear, coverage is revived the moment the breaches or conditions cease.” Lineas Aereas Colombianas Expresas v. Travelers Fire Ins. Co., 5 Cir., 1958, 257 F.2d 150, 155, and see especially note 9.

While the private pleasure warranty in The Escapade does not contain language of termination upon breach, that is not necessarily decisive. The court in Commercial Union Insurance Co. of New York v. Daniels, 343 F.Supp. 674 (D.C.S.D.Tex.1972), relying on both The Escapade and Lineas Aereas Colombianas Expresas, 257 F.2d 150 (5th Cir. 1958), held that the coverage of insurance there was suspended during a breach and not permanently destroyed. The warranty under consideration in Commercial Union expressly provided that the “insurance shall be void” in the event of a breach of the warranty. While the private pleasure warranty here provides that the “policy shall terminate upon” breach of the warranty, it does not make convincingly clear whether termination would be permanent or merely temporary during the duration of the breach.

When other policy provisions are considered, it appears that the construction adopted by the trial court providing for temporary suspension was proper. Three of those policy provisions are particularly persuasive on the side of temporary suspension. Section “A” of the policy labeled “Hull Insurance” contains a provision entitled “Property Insured,” which provides that the policy covers the hull of the insured yacht “at all times and on all occasions not conflicting with warranties or other clauses or conditions in this Policy.”

Also included in section “A” is a provision entitled “Coverage Provided.” The “Coverage Provided” clause states that the insurance provided by section “A” is effective “Except as may be excluded elsewhere in this Policy and except during times, occasions and circumstances that conflict with warranties or other clauses or conditions in this Policy....” Finally, section “C” entitled “Medical Expense Insurance,” in a provision labeled “Exclusions,” provides that coverage afforded shall not apply “while the yacht is being used for other than private pleasure purposes.”

Since we find that the policy does not make convincingly clear that termination is permanent upon a breach of warranty, we conclude that coverage existed at the time appellee’s vessel was lost.

Affirmed.

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


author: DOWNEY, Judge.

text:
    CREDIT ALLIANCE CORPORATION, Appellant, v. TIMMCO EQUIPMENT, INC., etc., et al., Appellees.
    No. 83-740.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Rehearing Denied Nov. 16, 1984.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Michael A. Bien-stock, Miami, for appellant.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, and William M. Winkel of Winkel & Sims, Palm Beach, for appel-lees — Timmco Equipment, Inc., and Larry E. Timm.
   DOWNEY, Judge.

Credit Alliance Corporation (CAC), plaintiff in an action for replevin and to enforce a guaranty, appeals from a final judgment, entered after a bench trial, that denied it relief and awarded the defendant-counter-plaintiffs, Timmco Equipment, Inc. (Timmco), and Larry Timm $391,390.44 in damages.

Timmco purchased two dirt loaders from W.W. Williams Company of Florida. The purchase price was partially financed through CAC. The first loader was purchased in June, 1979, for a financed price of $84,661.20, after a deduction for a tra-deín. The note and installment payment contract were to be paid on a graduated scale beginning at $3,000 per month. In August, 1979, Timmco purchased the second loader for $94,680 and financed it with CAC. The graduated payments began at $3,380 per month.

Timmco was continually in arrears on the payments, and CAC instituted a replevin suit to recover possession of both loaders. A settlement of that suit was reached on April 10, 1981, by a stipulation wherein Timmco acknowledged an arrearage of approximately $21,000 on both pieces of equipment and agreed to pay the arrearage together with “two payments in reverse to be applied to the last two payments due under the lease on each of the leases which amounts to $4,550.00 on Lease No. 1, and $4,055.10 on Lease No. 2.” The stipulation also provided that the next payments on the respective pieces of equipment were due on April 13th and 24th, 1981. Finally Timmco agreed to abide by the terms of the agreement thereafter.

Within two months, Timmco was two payments in arrears on the first lease and nearly two months on the second lease. Thereupon, on July 16, 1981, CAC filed another replevin action alleging that it felt itself insecure, that Timmco was in default, and that because of the default CAC had accelerated the balance due on both obligations. A writ of replevin issued, and CAC obtained possession of both loaders. CAC also sought a deficiency decree for the unpaid balance for the first loader. No such claim was made regarding the second one because the original seller, W.W. Williams Company, paid CAC under a recourse agreement. Timmco filed an answer denying any default and alleging usury and estoppel. By counterclaim, Timmco claimed usury, damages, costs, and attorneys’ fees. After a nonjury trial a judgment was entered in favor of Timmco awarding damages in the amount of $391,-390.44.

We believe the trial court’s initial finding that Timmco was not in default misperceived the legal effect of the evidence.’ While Timmco had a history of being late with its payments, that history was nullified when CAC sued for replevin the first time. In April, 1981, CAC let Timmco make the payments current and pay the last two payments of the leases “in reserve.” CAC also exacted a covenant that Timmco would abide by the terms of the leases thereafter. Within two months Timmco was again in arrears. The financing agreement required Timmco to keep the equipment insured, with CAC named in the loss payable clause, and authorized CAC to accelerate the balance due, without notice, any time CAC deemed itself insecure. Timmco contended that it was not in default because it had paid the two payments “in reserve” and they could be used at any time to cover a default. However, we reject that proposal because it contradicts the plain language of the April 10, 1981, stipulation which provided:

That the Defendants have agreed to pay two payments in reserve to be applied to the last two payments due under the lease on each of the leases which amounts to $4,550.00 on Lease No. 1, and $4,055.10 on Lease No. 2.

Thus, the evidence is clear that Timmco was in default on its monthly payments almost immediately after having been allowed to cure a prior default; it had failed to show CAC in the loss payable clause on the casualty insurance; and CAC properly deemed itself insecure. On the latter point, the burden of proof to show CAC did not in good faith deem itself insecure was on Timmco and no such showing was made. Quest v. Barnett Bank of Pensacola, 397 So.2d 1020 (Fla. 1st DCA 1981). Accordingly, we hold the trial court erred in finding that Timmco was not in default.

CAC’s second and third points on appeal, which are directed to the award of damages for wrongful replevin and the award of prejudgment interest, are mooted by our holding under Point I that Timmco was in default.

In its fourth appellate point, CAC contends the trial court erred in finding the June 13, 1981, note usurious and in awarding Timmco double the amount of interest paid on the note. CAC argues that Timmco waived the defense of usury by entering into the stipulation and settling the first replevin suit. We reject that argument because the stipulation did not involve an abandonment of the usurious note and the execution of a new note at lawful interest as did Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), relied on by CAC. Next, CAC suggests the transaction was exempt from the usury statutes by virtue of Section 687.04(1), Florida Statutes (1981). However, the evidence in this case clearly demonstrates the inapplicability of the statute. CAC was a party to the interest transaction and could not plead ignorance to any aspect of the transaction. Finally, once again the evidence of CAC’s participation in the interest transaction precludes application of the credit price doctrine to elude the usury statutes. We therefore hold the trial court was correct in finding the interest charged on the first note was usurious and awarding Timmco double the interest paid.

In its complaint CAC sought recovery of the deficiency it suffered after replevy and disposition of the equipment which was the subject of the June, 1979, financing. Since the trial court found Timmco was not in default, it did not reach the deficiency question. In view of our holding it is now appropriate for the trial court to consider CAC’s claim for deficiency pursuant to Section 679.504, Florida Statutes (1981).

In view of the foregoing, we reverse the judgment appealed from and remand the cause to the trial court for further proceedings to determine CAC’s claim for deficiency and thereafter to enter final judgment for CAC for such deficiency as is found and to enter judgment for Timmco on the usury issue for $31,123.88, plus interest on $15,-561.94, from July 27, 1981, until the date of this judgment.

REVERSED AND REMANDED with directions.

ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.


author: PER CURIAM.

text:
    Clarence GISSENDANNER, Appellant, v. STATE of Florida, Appellee.
    No. 84-898.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
    Rehearing Denied Oct. 31, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dismissed without prejudice to defendant’s right to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Robinson v. State, 373, So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

GRIMES, A.C.J., and SCHEB and DAN-AHY, JJ., concur.


text:
    James W. GILLIES, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AX-438.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellant.
    Gerry L. Clark, Asst. Dist. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   PER CURIAM.

This appeal is from a final order of the Department of Health and Rehabilitative Services (HRS) which adopted in full the hearing officer’s recommended findings of fact and conclusions of law and ordered that appellant, James W. Gillies, be fined for failure to secure the necessary license for operation of an adult congregate living center. The issue presented on appeal is whether there is competent, substantial evidence to support HRS’s finding that Gillies is the “operator” of several adult congregate living centers and, as such, is required to be licensed pursuant to section 400.-407(l)(a). After thorough consideration of the parties’ arguments and review of the record on appeal, we find there is competent, substantial evidence to support the findings upon which the final order is based and discern no error or misapplication of the correct rule of law. The hearing officer’s recommended order adopted by HRS is well reasoned and is hereby adopted as the opinion of this court (see appendix).

AFFIRMED.

MILLS, J., ERVIN, C.J., and ZEHMER, J., concur.

APPENDIX

BACKGROUND INFORMATION

The Administrative Complaint in Case No. 83-336 versus Respondent Share-A-Homes of America, Inc. (SAH), was filed on January 6, 1983. An Answer and Request for Hearing was filed on January 21, 1983. On June 9, 1983, Respondent moved for a summary judgment which was denied by the Hearing Officer. Thereafter, Petitioner filed an Amended Administrative Complaint in this case on June 11, 1983, for which an Answer was filed by Respondent on June 22, 1983.

As to Case No. 83-2312 with Share-A-Concept, Inc. (SAC), and James W. Gillies as Respondents, the Administrative Complaint was filed on June 17, 1983/ and an Answer and Request for Hearing was filed on June 29, 1983. Thereafter, Petitioner filed a Motion to Consolidate both cases on August 24, 1983; and this motion was granted on September 7, 1983.

At the hearing, Petitioner presented the testimony of Respondent James W. Gillies, Karen 0. Tuttle, James Bonanno, Karen Martin and Hermie Sanders, as well as Petitioner’s Exhibits 1 through 9. Respondents presented the testimony of Walter A. Willis, Eugene R. Amyx, Dorothy Shackle-ford, Willie C. Sullivan, Ruth Michelman and Jack Peterson, as well as calling Respondent Gillies to the stand, and introduced Respondents’ Exhibits A through C.

FINDINGS OF FACT

1. Respondents in this case are two corporations, Share-A-Homes of America, Inc., and Share-A-Concept, Inc., and an individual, James W. Gillies.

2. Both corporate Respondents are nonprofit corporations which have now been merged under the name Share-A-Concept, Inc.

3. Share-A-Concept, Inc., and its predecessor, Share-A-Homes of America, Inc., own or lease parcels of real estate in Orange County, Florida. These parcels of real estate consist of lots and homes built thereon. These homes are subsequently subleased by Respondent corporation (now Share-A-Concept) to the various Share-A-Homes associations for a rental equal to the rental or mortgage payment paid by SAC plus a surcharge of 1.5 percent. This surcharge is accumulated and used for start-up expenses for other Share-A-Home facilities and to meet the deficits occurring from time to time in existing Share-A-Homes associations.

4. The various Share-A-Homes associations are made up of the elderly residents of each home who live together in a homelike atmosphere and whose needs are provided for by a house manager who does the housekeeping, laundry, grocery shopping and cooking. Larger families may have additional staff, such as a maintenance man or a gardener.

5. Each resident of a Share-A-Home pays a sum each month into a communal bank account which is opened in the name of that particular Share-A-Homes association. The amount paid each month is set initially by the general manager, Respondent Gillies. Changes are made from time to time as necessary, pursuant to a house meeting called by either Mr. Gillies or home residents at which a proposed increase or decrease is announced, discussed and voted on by the residents. Each separate residence’s bank account is maintained by Respondent Gillies in his administrative office located in the Share-A-Home family residence located at 701 Driver Street in Winter Park, Florida.

6. Respondent Gillies is neither an officer nor director of Share-A-Concept or its predecessor corporation, Share-A-Homes. He is currently serving as executive director for Share-A-Concept without, pay. Among his duties are the setting up of various “homes” by locating a site, arranging for its rehabilitation and then serving as coordinator with various churches and civic leaders in order to attract residents into the facility. Respondent Gillies is paid to function as the general manager of all Share-A-Concept family homes by the individual homes. As such, he oversees the overall structure of the home, provides proper management training for the people who work there, oversees the financial management of all of the homes, signs checks for all of the homes, interviews prospective employees for all of the homes, insures the employees are properly trained and has discharge authority over these employees. He can be discharged by the residents of any given home.

7. Assisting him in his duties are Ruth Michelman and Rosalee Garnsy. Ms. Mi-chelman is a self-employed administrative contract worker for all seven Share-A-Home families. As such, she pays the bills out of the bank accounts of each family on which she is authorized to write checks (she maintains custody of all checkbooks), as are Mr. Gillies and Ms. Garnsy. The checks Ms. Michelman periodically receives from each family organization in payment for her services contain no deductions for withholding or Social Security.

8. Respondent Gillies has the decision-making authority as to what salary each employee of the individual homes is paid, but does not, he says, supervise them. By the same token,' he does not do the hands-on training, merely advising as to policy and concept. He contends the on-site managers at the various individual homes do the training and, he contends, he is not responsible for the day-to-day operation of the homes. It appears, however, that Respondent Gillies, Ms. Michelman and Ms. Garnsy in fact manage and run all the various homes operated under the Share-A-Home concept in Orange County. For example, if there is a major repair necessary, the various homes do not themselves arrange for the repair, but instead report the deficiency to Mr. Gillies or the “office,” which in turn arranges for repair either by an independent repairman or through Mr. Earl Jackson, the husband of the house manager at the Driver Street facility who was himself employed by Mr. Gillies as the maintenance man and chauffeur for that “home.” In fact, he has often been directed by Respondent Gillies to make repairs at other homes even though his paycheck is drawn on the account of the Driver Street home.

9. There are seven individual “homes” in the Orange County area. They are located at:

(1) 703 Greens Avenue, Winter Park — 6 residents;
(2) 701 Driver Street, Winter Park — 18 residents;
(3) 620 Driver Street, Winter Park — 7 residents;
(4) 3201 Minnesota Avenue, Winter Park —11 residents;
(5) 5329 Eggleston Avenue, Orlando — 8 residents;
(6) 5300 Satel Drive, Orlando — 10 residents; and
(7) 438 Plant Street, Orlando — 18 residents.

10. Residents enter the home when either the resident or his or her family member makes contact with either the office - operated by Respondent Gillies or one of the homes’ director. If there is an opening in one of the homes, it is looked at by the prospective resident and his or her family and, if satisfactory, the new resident moves in. Fees are ostensibly determined by a meeting of the family, and Respondent Gillies states he does not assist in the setting of fees. However, the testimony of residents indicate that though they think they have an active role in managing the individual homes and setting of fees, their participation generally takes the form of approving a “suggestion” made by Mr. Gillies or some other “independent contractor.” When the fees set by this process are paid, the payments are made either to the home manager or to the general office of the Respondent Gillies where a deposit is made to the individual home account. In either case, however, the checkbook for that home is maintained by Respondent Gillies; and he, Ms. Michelman and Ms. Garnsy are the only individuals who can write checks on the account.

11. When a resident enters one of the homes, there is no contract entered into between that resident and either the “family” which he or she will join or with Share-A-Concept, Inc. By the same token, there are no written agreements between the “families” and either Share-A-Homes formerly or Share-A-Concept now. There are, however, Articles of Association which govern each individual family. These Articles are basically identical for each home and were originally drawn up approximately 12 years ago by the first family organized under this concept.

12. Once the prospective resident enters the home, he or she has 30 days within which to make up his or her mind as to whether or not he or she wants to remain. Mr. Gillies indicates that if a resident, having once joined the association, fails to make a payment assessed by the “family” when due, Share-A-Concept, Inc., would not take action. The initial or individual family would do so. That responsibility has been delegated to Respondent Gillies, who, as the general manager, is the one who is to file the eviction notice.

13. There is no set fee for the residents of each home to pay. The actual amount paid depends upon income of the resident and other factors. Rent alone generally runs from $75 to $80 per month for each resident. For this, the resident gets food, laundry, transportation and a bed in what in most cases are double rooms in the home. Each resident must be ambulatory and able to take care of himself or herself. If the individual becomes incapacitated, he or she must leave, as no medical services are provided. In that regard, however, medicines prescribed by the individual resident's physician are made available to the patient by the staff members, who maintain control and custody of the medicines and who put them out for the patient to take himself or herself as required. Further, some house managers, though they are told not to administer medications, will assist individual residents in administering periodic injections of such things as insulin, etc.

14. Notwithstanding the representation of Respondent Gillies that the individual staff members at the residences may be hired and fired by the residents at that particular home, and while one resident testified that she felt she had at least some say-so in the management of the home to the extent at least of being able to give approval to proposals offered by Mr. Gillies and or his staff, other testimony by former employees of the various homes tends to indicate somewhat to the contrary. For example, both Karen Tuttle and James Bo-nanno were hired by Mr. Gillies, transferred by Mr. Gillies and ultimately discharged by Mr. Gillies. Ms. Tuttle stated she was discharged because Mr. Gillies felt the work was too hard and the drive too far for a pregnant woman (Ms. Tuttle was pregnant at the time). When she went back to visit the families afterward, they told her that they had been told she had quit, which in fact was not the case. Mr. Bonanno, who worked at two of the residences in question, and as supervisor of ten residences for a period of time, was hired by Mr. Gillies in that capacity. His duties included visiting all houses to see if all was well. He did some of the consolidated meat buying (the individual home managers purchased the majority of the groceries with checks drawn on that home’s account by someone at Mr. Gillies’ office); and if there was a problem in any of the homes, he would let Mr. Gillies know. During the time he was with this organization, he did not recall any family ever having a meeting (there is evidence that family meetings were held); and when he was ultimately discharged, that action was taken not by any of the families, but by Mr. Gillies, who stated that the homes could not afford him any more.

15. On balance, then, it becomes clear that while Share-A-Homes of America, Inc., and Share-A-Concept, Inc., appear to have no participation in the provision of services or the operation of the homes in question, Respondent Gillies in fact does. It is obvious from the above that Mr. Gillies and the two other individuals who work with him in the office, while employed under what appears to be an independent contractor relationship, are in fact the management team, headed by Respondent Gillies, for all the “homes” in this area which bear the title “Share-A-Home.”

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

2. Respondents are charged with numerous instances of operating adult congregate living facilities without first obtaining a license in violation of Section 400.-407(1), Florida Statutes, and Rule 10A-5.-17, Florida Administrative Code.

3. Part II of Chapter 400, Florida Statutes (1981), deals with adult congregate living facilities; and it is this part of the referenced chapter under which Petitioner seeks to discipline Respondents. Section 400.402(2), Florida Statutes (1981), defines an adult congregate living facility as:

“Adult congregate living facility,” hereinafter referred to as “facility,” means any building or buildings, residence, private home, boarding home, home for the aged, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a period exceeding 24 hours, housing, food service, and one or more personal services for four or more adults, not related to the owner or operator by blood or marriage, who require such services. A facility offering personal services for fewer than four adults shall be within the meaning of this definition, if it formally or informally advertises to or solicits the public for residents or referrals and holds itself out to the public to be an establishment which regularly provides such services.

4. The evidence submitted at the hearing, as outlined above, clearly establishes .that the “homes” which Respondents classify as “families” fall within the definition of an adult congregate living facility as outlined in the statute. The buildings constitute homes for the aged not operated at a profit which undertake through their management to provide for a period in excess of 24 hours housing, food service and at least one additional personal service, such as laundry or chauffeur service for in each case more than four adults not related to the operator, Mr. Gillies, by blood or marriage, who require these services. Personal services are defined in Subparagraph (8) of this particular section; and clearly those functions provided for the residents through Mr. Gillies or those under his supervision fall within the purview of personal services.

5. Having established that the operation constitutes an adult congregate living facility as defined by the statute and the rule, the next question for resolution is which, if any, of the Respondents operate that facility. It is clear that Share-A-Homes of America, Inc., no longer operates any facilities. Its successor, Share-A-Con-eept, Inc., has as its executive director, albeit without pay, the Respondent James W. Gillies, who clearly, even though he is an independent contractor employed by the various homes, operates the homes for the residents notwithstanding their participation in the management of the individual facilities. It is clear, then, that Mr. Gillies does in fact operate the facilities.

6. As to Share-A-Coneept, Inc., however, there is insufficient evidence to tie the operation by Mr. Gillies to the organization of which he is executive director because his activities as they relate to the individual residences do not impact on Share-A-Concept, Inc. The sole connection that agency has with the individual homes is as landlord; and Mr. Gillies’ activities for the individual homes are not in his capacity as executive director of Share-A-Concept, Inc.

7. Therefore, it is clear that only Respondent Gillies is in violation of the statutes, which, at Section 400.407(1), make it unlawful to operate an adult congregate living facility without first procuring a license authorizing such operation. Having concluded that Mr. Gillies is in violation of that particular statutory provision, it can then be concluded legitimately that he falls within the purview of Section 400.419(l)(b), Florida Statutes, which provides that any operator found to be in violation of this part shall be liable to a fine set and levied ' by the Department of Health and Rehabilitative Services.

8. This fine falls under Subparagraph (4), which states that the Department may set and levy a fine not to exceed $500 for each violation which cannot be classified either as a Class I, II or III violation.

9. The Respondents have submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, therefore, it is RECOMMENDED:

That Respondent James W. Gillies be reprimanded; that he pay a fine of $50 for each home managed by him, to be suspended upon proof of licensure of the homes; and that,' as general manager for' all Share-A-Concept homes in Orange County, Mr. Gillies undergo licensure action for each of the facilities currently operated under his supervision.

RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida.

/s/ Arnold H. Pollock ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

Department of Administration 2009 Apalachee Parkway

Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983.


author: ZEHMER, Judge. BOOTH, Judge,

text:
    David BEATTIE, et al., and Area Communications, Inc., Appellants, v. SHELTER PROPERTIES, IV, U.S. Shelter Corp., and Universal Cable Services, Appellees. Kim STANFORD, et al., and Area Communications, Inc., Appellants, v. DEANZA PROPERTIES-XI-LTD., et al., Appellees.
    Nos. AT-434, AU-344.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.

      Stephen H. Durant, of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants in No. AU-344.
    James F. Valenti, Jr., of Mahoney, Had-low & Adams, P.A., Jacksonville, for appel-lees in No. AU-344.
    Martin, Ade, Birchfield & Johnson, Jacksonville, for appellants in No. AT-434.
    Commander, Legler, Werber, Dawes & Sadler, Jacksonville, for appellees in No. AT-434.
   ZEHMER, Judge.

These two cases present essentially the same legal issue: whether section 83.66, Florida Statutes (1982), is unconstitutional because it mandates a taking of private property without just compensation in violation of section 6, article X of the Florida Constitution and the fifth and fourteenth amendments to the United States Constitution. The cases were consolidated for oral argument and will be jointly disposed of in this opinion.

Area Communications, Inc. (Area), holds a nonexclusive franchise from the City of Jacksonville to provide cable television service to residents in various areas of the city. In case number AT-434, the appellant tenants, who hold leases for a term of more than one year at Baymeadows Apartments, contracted with Area to provide cable television service to their apartments. The Baymeadows apartment complex consists of 904 units owned by appellees, Shelter Properties IV, and managed by U.S. Shelter Corporation (landlord). When Area made its agreement with the tenants, no cable service was available to the tenants; but the landlord had already contracted with appellee Universal Cable Services (Universal) for the installation of an independent receiving unit to provide television service to its apartment complex. Several months later, the independent receiving unit was installed and began providing, with some difficulties, twelve-channel service. Area provides thirty-two channel service.

Area sought permission from the landlord to provide cable service to apartment tenants who requested service, but the landlord refused to allow Area access to install its cables. Area has offered to provide the landlord detailed plans showing that installation of its cable equipment will be in harmony with the character of the apartment complex and has also offered to pay the landlord up to $5,000 for easements necessary to install its equipment and provide cable service.

Area and the tenants of Baymeadows contracting with it filed suit against the landlord and Universal seeking to enforce their rights under section 83.66, Florida Statutes (1982), by injunction prohibiting the landlord from installing and operating the independent receiving unit and compelling the landlord to give Area access to the premises in order to provide service to the tenants. At trial, the major factual issue was whether the television signal from Baymeadows’ independent receiving unit was “comparable” to that provided by Area within the meaning of section 83.66(4), Florida Statutes (1982). A ruling on this factual issue adverse to plaintiffs would obviate the necessity for Baymeadows to provide access to Area. The trial court found that the signal of the independent receiving unit was not comparable to Area’s signal, but the court entered judgment for appellees upon the ruling that section 83.66 was unconstitutional on two grounds: (1) The statute authorized a “taking” of an apartment owner’s property without effectively conferring the power of eminent domain to appropriate the property of another; and (2) the statute improperly authorized a “taking” of private property for a ‘private,’ not a ‘public,’ purpose within the meaning of Section 6, Article X, of the constitution of Florida” and private property may be taken only for a public purpose, citing Peavy-Wilson Lumber Co. v. Brevard County, 31 So.2d 483 (Fla.1947).

In the second case, number AU-344, the appellant tenants of Woodlake Apartments contracted with Area to provide cable service to their apartments. The appellee owners of Woodlake did not provide any cable service to the tenants and had not contracted with any company to provide such service. ' The owners denied Area permission and access to install the requested service, so Area and the tenants filed suit seeking to enforce the tenants’ right of access to Area’s cable television service protected under section 83.66, Florida Statutes (1982). Appellants also demanded damages for the owners’ wrongful conduct in denying access to the apartments and for interfering with the business relationship between Area and the tenants. The trial court dismissed the complaint with prejudice, ruling that section 83.66 was unconstitutional on its face and as applied because (1) “it provides for or permits a taking of private property without provision for just compensation,” in violation of the fifth and fourteenth amendments to the United States Constitution and (2) section 83.66(4) “is unconstitutionally vague” in not defining the meaning of “a signal comparable to cable” with more specificity. The court also dismissed count two for failure to state a cause of action for tor-tious interference.

The obvious purpose of section 83.-66 is to assure that thousands of Florida residents living in apartment complexes will have equal access to cable television service of comparable quality and cost as that made available by franchised and licensed cable companies servicing residents living in personally owned family dwellings. The statute is intended to prevent profiteering by apartment owners by preventing them from treating their tenants as a captive market for the sale of inferior television reception services at excessive costs. To this end, the statute contains provisions that allow apartment owners to exercise a choice: either permit franchised cable companies access to serve the apartment tenants or install and make available a cable system having comparable signal and quality of service at a reasonably comparable cost. Cable television is fast becoming a major medium of public communication, education, and entertainment, and there is unquestionably a significant public interest in the proper public regulation of such medium to the end that all members of the public, including apartment dwellers, may be adequately and equitably served. For this reason, we believe the statute serves a legitimate public purpose which is well within the state’s police power, as held in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), and disagree with the ruling below that section 86.33 involves a taking of private property for private purposes only.

Nor do we believe that the language of the statute is, as ruled below, unconstitutionally vague for failing to adequately define “an independent television receiving unit, which provides a television signal comparable to cable for use by tenants” (emphasis supplied). We have no difficulty understanding the emphasized language to mean that the landlord’s independent television receiving unit must provide television service that is comparable to available cable service in programming variety (number of stations), as well as in the quality of the picture transmitted to the apartments.

Unquestionably, however, the requirements in section 83.66 that landlords allow franchised cable television companies access to the apartment premises for installation of equipment amounts to a taking of property compensable under the Fifth and Fourteenth Amendments. Loretto v. Teleprompter Manhattan CATV Corp., supra. Accordingly, we are persuaded to follow the decision of our colleagues at the Third District in Storer Cable T. V. of Florida, Inc. v. Summerwinds Apartments Associates, Ltd., 451 So.2d 1034 (Fla. 3d DCA 1984), holding that application of the principles of Loretto to section 83.66 renders the statute unconstitutional for requiring the taking of property without providing for the payment of just compensation. We recognize that subparagraph (5) of the statute states that the cable television company “shall be responsible for paying to the landlord any costs, expenses, or property damage that are incurred by the landlord during the installation, repair, or removal of the cable,” but we decline to construe that section as authorizing a “taking” and requiring payment of just compensation in view of the strong, direct prohibition in subparagraph (1) of the statute that no franchised or licensed cable television service shall be required:

... to pay anything of value in order to obtain or provide such service except those charges normally paid for like services by residents of, or providers of such services to, single-family homes within the same franchised or licensed area and except for installation charges as such charges may be agreed to between such tenant and the provider of such services.

In the absence of specific provisions for payment of just compensation, the statute is invalid.

We find it unnecessary to decide the sufficiency of the count for tortious interference with contractual relations in case number AU-344.

AFFIRMED.

ERVIN, C.J., concurs.

BOOTH, J., concurs specially.

BOOTH, Judge,

specially concurring:

I agree that Section 83.66, Florida Statutes, is unconstitutional for the reasons stated by the majority, and would also affirm the judgments of the trial courts in these cases, holding, inter alia, that the statute is unconstitutional as providing for the taking of private property for private purposes, and for vagueness.

      . Section 83.66, Florida Statutes, provides in part:
      (1) No tenant having a tenancy of 1 year or greater shall unreasonably be denied access to any available franchised or licensed cable television service, nor shall such tenant or cable television service be required to pay anything of value in order to obtain or provide such service except those charges normally paid for like services by residents of, or providers of such services to, single-family homes within the same franchised or licensed area and except for installation charges as such charges may be agreed to between such tenant and the provider of such services.
      (2) In determining whether to permit cable television service to a rental unit or complex, a landlord shall be authorized:
      (a) To require that the cable television company submit to the landlord for approval detailed plans, specifications, and schematics for the proposed installation.
      (b) To require that the installation of the cable be in harmony with the existing character of the complex and designed to maintain the aesthetic features of the site.
      (3) Nothing herein shall be construed to require a landlord to permit more than one franchised cable television company to service the tenants residing in his rental units.
      (4) Nothing herein shall be construed to require a landlord who has installed an independent television receiving unit, which provides a television signal comparable to cable, for use by tenants, to accept installation and provision of cable television services from any cable television company.
      (5) Any cable television company which is authorized to provide service to a rental unit or complex shall be responsible for paying to the landlord any costs, expenses, or property damage that are incurred by the landlord during the installation, repair, or removal of the cable. Payment of such amounts shall not be construed as a payment of value in order to obtain or provide cable television services.

        See also, Chapter 82-66, Laws of Florida, section 14 (1982); section 718.1232, Florida Statutes (1981).

      . The contract provides that the owner of Bay-meadows will receive a percentage of the income received by Universal from its service to the apartment tenants. The owners assert that the contract has a value of $72,000 over a twenty-five year period.


author: MILLS, Judge.

text:
    Robert William MOTYKA, Appellant, v. STATE of Florida, Appellee.
    No. AW-461.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    Michael E. Allen, Public Defender, and Charleve V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   MILLS, Judge.

Motyka appeals from a sentence of 3V2 years in prison following conviction for leaving the scene of an accident involving death or personal injuries. Section 316.027, Florida Statutes (1983). The issue presented is whether the trial court erred in scoring victim injury in determining the recommended range pursuant to the sentencing guidelines. The trial court erred. We reverse and remand for resentencing.

Moytka was involved in an automobile accident on 23 June 1983 in which two people were killed and four people injured. He was charged with leaving the scene of an accident involving death or personal injuries. He pleaded guilty and affirmatively elected to be sentenced under the guidelines. The difficulty arose in preparing Motyka’s score sheet.

The State contended 48 points should be assessed for victim injury, 24 points for each fatality. Assessing points for injury to the four passengers who were not killed was not urged because the information only alleged the injury or death of the two people who were killed. Defense counsel argued victim injury should not be scored. The trial court agreed with the State and assessed 48 points for victim injury.

With the added 48 points, Motyka’s total score was 152, placing him in the recommended range of 3V2-4V2 years incarceration. Had the 48 points not been added, the recommended sentence would have been any nonstate prison sanction. The trial court stated it saw no reason to deviate from the guidelines and sentenced Mo-tyka to 3V2 years in prison.

As amended on 8 May 1984, Florida Rule of Criminal Procedure 3.701(d)(7) provides: “Victim injury shall be scored if it is an element of any offenses at conviction.” Section 316.027 prohibits leaving the scene of an accident involving death or personal injuries. Victim injury is not an element of the offense in the sense that one must injure or kill someone to be guilty of the offense.

The last sentence of the committee note to Rule 3.701(d)(7) provides: “Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.” (emphasis supplied). A conviction under Section 316.-027 does not necessarily mean the defendant is guilty of injuring anyone.

Rule 3.701(d)(7), as clarified by the committee note, precludes scoring victim injury for the offense of leaving the scene of an accident involving death or personal injuries.

REVERSED and REMANDED for re-sentencing with directions that victim injury not be scored.

ERVIN, C.J., and ZEHMER, J., concur.

      . As originally enacted, Florida Rule of Criminal Procedure 3.701(d)(7) provided: "Victim injury shall not be scored if not a factor of an offense at conviction.” Under either version of the rule, our analysis is the same,


text:
    Joe TOLER, Appellant, v. STATE of Florida, Appellee.
    No. AW-469.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.

      Michael Allen, Public Defender, and Ann Terry Carley, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Toler appeals from a conviction and sentence for burglary of a dwelling. He contends the trial court erred in allowing certain testimony and in denying motions for judgment of acquittal. We affirm.

On 23 August 1983, someone broke into Robert Morris’ trailer near Keystone Heights. Toler was arrested for the crime, charged with burglary of a dwelling, tried and convicted by a jury. He was sentenced to 15 years in prison.

Morris’ trailer was located in a rural area. On the evening of 23 August 1983, Mrs. Prill who lived in a nearby trailer, saw a truck driving slowly down the road between her residence and Morris’ trailer. She saw the truck turn down a road near Morris’ trailer and shortly thereafter heard a sound “like wood breaking.” She saw a flashlight shining inside the trailer. She also heard conversation but could not distinguish the words. Mrs. Prill called the police who arrived soon thereafter.

Investigator Taylor of the Clay County Sheriff’s Department arrived at the scene and discovered footprints on the side of the road near Morris’ trailer and near the tongue of the trailer. He also discovered tire tracks near the trailer. Taylor testified that the tire tracks indicated at least three different kinds of tires on one vehicle. He testified the footprints showed a unique grid-like design.

Deputy Jones of the Clay County Sheriff’s Department also saw the footprints near the trailer and the nearby tire tracks. Both Jones and Taylor testified that Toler’s truck had at least three different kinds of tires which could have made the tire tracks they found. They also testified that the boots Toler was wearing when he was arrested had the same grid-like pattern on the soles as that shown by the footprints found near Morris’ trailer.

Deputy Jones saw a light shining in the woods below the trailer soon after he arrived on the scene. He then heard a vehicle start and radioed another officer who stopped Toler’s truck as Toler drove up in it from the woods near a pond below Morris’ trailer.

Toler told the officer he had been bathing in the pond and had not been near the trailer, but Deputy Jones testified Toler appeared dry and dirty. There was a flashlight in Toler’s truck but no property from the trailer was found in Toler’s possession. Toler’s fingerprint was lifted from a piece of broken- windown on Morris’ trailer.

Some personal property from the trailer was found in a nearby ditch. No identifiable fingerprints belonging to Toler were found on the property.

A tracking dog from the Clay County Sheriff’s Department named Bloodhound Andy traced a scent from the point where the stolen property was found in the ditch to the point near the trailer where the footprints and tire tracks were found. There was no testimony that the dog was a purebred bloodhound. There was, however, testimony that the dog had a 100% success rate in seven human trackings, and that Lieutenant Miller, who testified concerning the tracking evidence, had worked with the dog on 17 different occasions. Despite defense counsel’s objection, Lieutenant Miller was allowed to testify.

Defense counsel’s motions for judgment of acquittal based on the insufficiency of the evidence were denied by the trial court.

We first reject Toler’s contention that the testimony concerning the fingerprint, footprints, and tire tracks was irrelevant and therefore inadmissible. Relevant evidence is evidence tending to prove or disprove a material fact. Section 90.401, Florida Statutes (1983). The testimony in question was relevant because it tended to prove the material fact that Toler had been at or near Morris’ trailer.

Toler also challenges the admission of testimony concerning the conduct of the tracking dog. He contends the evidence was inadmissible because there was no evidence the dog was a purebred bloodhound.

Evidence of the conduct of a dog in trailing an accused is admissible provided a proper foundation is laid. Tomlinson v. State, 129 Fla. 658, 176 So. 543, (1937); Edwards v. State, 390 So.2d 1239 (Fla. 1st DCA 1980). Florida courts have never held that a proper foundation necessarily requires evidence that the dog is purebred, although breeding is one of several factors the trial court should take into account in determining the adequacy of the foundation. Davis v. State, 46 Fla. 137, 35 So. 76 (1903). Other important factors include evidence of the dog’s tracking ability and training.

Here, Lieutenant Miller’s testimony that Bloodhound Andy had successfully tracked humans on seven prior occasions and his testimony that Andy had been extensively trained to track humans provided a sufficient foundation. The trial court did not err in allowing the challenged testimony.

Finally, we reject Toler’s argument that the trial court erred in denying his motions for judgment of acquittal. He contends the evidence adduced at trial failed to exclude every reasonable hypothesis of innocence. Specifically, he contends the testimony concerning the fingerprint, footprints, and tire tracks proved nothing because it did not link the creation of the prints and tracks to the time of the burglary. He also argues that his explanation, that he was in the area to bathe, was a reasonable hypothesis of innocence not excluded by the evidence.

In some cases, a conviction based solely on fingerprint evidence cannot stand unless there is a showing that the prints could only have been made at the time the crime was committed. See, e.g., Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975). But that rule does not apply in the case before us because the conviction was not based solely on fingerprint evidence or, for that matter, footprint or tire track evidence.

In addition to the testimony concerning the prints and tracks, there was evidence Toler was present in the woods near the trailer immediately after the burglary. There was also evidence that the tracking dog followed a scent from the point where stolen property was found to a point near the footprints and tire tracks. Taken as a whole, the evidence was sufficient to withstand motions for judgment of acquittal. The jury could have reasonably concluded Toler’s story that he was in the area to bathe was not a reasonable hypothesis of innocence.

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.