author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Charles STENZA, Appellee.
    No. 83-1821.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellant.
    Fred S. Pflaum and Mark Louis Katz-man, Sarasota, for appellee.
   CAMPBELL, Judge.

Appellant, State of Florida, appeals the trial court’s granting of appellee’s motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm.

Appellee was charged by information with grand theft in violation of section 812.014(1), Florida Statutes (1981). The information alleged that appellee, on April 5, 1983, obtained:

[Household furnishings, including appliances, furniture, pictures, linens, dishes and a television set ... property of the Estate of Elizabeth O’Kelly, ... without the consent of the said owner or custodian and with the intent to deprive said owner or custodian of her rights to the property or benefit therefrom, or with the intent to appropriate the said property to his own use or to the use of another not entitled thereto....

Appellee is in the business of removing deceased persons from their homes and cleaning the homes. He is also engaged in the related enterprise of liquidation of estates. In this case, appellee was engaged to remove the body and clean the home of Mrs. O’Kelly. He performed those services and also arranged for the removal of Mrs. O’Kelly’s home furnishings by Mid-County Auction Service, the sale of such property and payment of the funds received therefrom to Mrs. O’Kelly’s heir.

In his affidavit, filed in support of and with his motion to dismiss, appellee stated as follows:

1. That the undersigned Affiant is the same CHARLES STENZA who is charged in case number 83-540F.
2. That pursuant to a contract with Manatee County the undersigned removed the body of one ELIZABETH O’KELLY from her residence located at 5050 5th Street East Bradenton, Florida.
3. At the time of the removal of the body the undersigned had conversations with PEGGY O’KELLY WHALEN and MICHAEL PATRICK O’KELLY who were the only heirs to the estate of ELIZABETH O’KELLY.
4. That the undersigned affiant [sic] received permission from the heirs to clean the residence.
5. That the undersigned honestly believed that at that time he had received permission from the heirs to make arrangements for the auction of all of the remaining estate of ELIZABETH O’KELLY.
6. That the Affiant contacted Mid-County Auction Service with whom Affi-ant had done business with in the past.
7. That Mid-County Auction came to the residence of ELIZABETH O’KELLY sometime in late March of 1983, and transported all of the estate of ELIZABETH O’KELLY to the Mid-County Auction Service where it was auctioned on April 2, 1983.
8. That a detailed inventory of said property was taken at the time of its removal from the ELEZABETH O’KELLY [sic] residence. (A copy of the Mid-County Auction Service inventory is attached hereto and marked as exhibit A.)
9. That at the time said property was removed from the ELIZABETH O’KELLY estate, the Affiant instructed RICH LITTLE who is the owner of Mid-County Auction Service to cut a check after the property was auctioned to PEGGY O’KELLY WHALEN.
10. That all property removed from the residence of ELIZABETH O’KELLY was sold at the Mid-County Auction Service because the Affiant believed he had the consent of the heirs to auction off the estate.

Appellee also filed in support of his motion, the affidavit of Richard Little, owner of Mid-County Auction Service, who stated as follows:

1. Affiant is the owner of Mid-County Auction Service.
2. That Affiant has in the past done business with one CHARLES STENZA.
3. That the Affiant was contacted by CHARLES STENZA sometime in March of 1983, at which time CHARLES STEN-ZA informed the Affiant that he had permission to dispose of an estate through an auction.
4. That sometime in late March of 1983, the Affiant and his employees went to 5050 5th Street East Bradenton, Florida and removed the contents of said residence to the Mid-County Auction.
5. That at the time said property was removed the undersigned Affiant and his employees took a careful inventory of all the property that was removed.
6. That on April 2, 1983, the contents of the residence at 5050 5th Street East Bradenton, Florida were auctioned.
7. That the attached inventory from Mid-County Auction Service is an accurate reflection of the prices received for the items sold at the auction.
8. That at the time Mid-County Auction Service removed the property from the O’KELLY estate the Affiant was instructed by CHARLES STENZA to cut the check for the sale in the name of PEGGY O’KELLY WHALEN.
9. That a number of weeks later CHARLES STENZA again contacted the Affiant and again instructed the Affiant to cut the check in the name of PEGGY O’KELLY WHALEN.
10.That all the property removed from 5050 5th Street East Bradenton, Florida residence of ELIZABETH O’KELLY was sold at the Mid-County Auction Service.

Appellant, State of Florida, filed a demurrer to appellee’s motion to dismiss, which was sworn to by an assistant state attorney, and stated only as follows:

1. That both heirs, Peggy O’Kelly Whalen and Michael Patrick O’Kelly, have signed sworn statements that they had no agreement with Mr. Stenza, and had never authorized Mr. Stenza to remove the items alleged in the information.

The trial court granted appellee’s motion to dismiss. The crux of the state’s case rests on whether it could prove a felonious intent on the part of appellee. It argued to the trial court only the case of Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966), and in its brief filed here, only State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980). Both Casso and McCray stand for the well-accepted principle of law that intent or state of mind is a jury question that, in most instances, cannot be ascertained by direct evidence, but can only be inferred and, therefore, is not proper to be determined on a motion to dismiss. We continue to adhere to that rule of law, but in doing so, observe that for nearly every rule there is an exception. In Casso, the court, while stating that existence of the requisite felonious intent is for a jury to determine, also cautioned that that rule was “subject always to the legal requirement that there must be some substantial competent evidence from which the jury may reasonably infer ... the intent_” 182 So.2d at 257. In this case, appellant relies upon the fact alleged in its demurrer that appellee had no permission to remove and sell Mrs. O’Kelly’s property, to support an inference of his felonious intent to deprive Mrs. O’Kelly’s heirs of the property or benefit thereof.

The demurrer does not refute appellee’s statement that he believed he had authority to liquidate the estate, nor does it refute the other circumstances alleged in the affidavits which support that apparent mistaken belief. From the unrefuted affidavits, it appears that appellee instructed Mid-County Auction Service to remove the property, sell it, and deliver the proceeds to the heirs. It is not asserted that this was done clandestinely, or in any way to deprive the heirs of the proceeds.

In Jalbert v. State, 95 So.2d 589 (Fla.1957), in speaking of establishing the intent to commit grand larceny to sustain a breaking and entering charge with intent to commit a felony, the court held, “In the absence of other evidence or circumstances, the best evidence of what he intended to steal is what he did steal.” (Emphasis supplied.) There was no evidence or other circumstances presented to the trial judge below to refute that appellee, at all times, had instructed that Mrs. O'Kelly’s property be sold and the proceeds delivered to her heirs. Therefore, the evidence before the trial judge shows, by direct evidence, that appellee intended for Mrs. O’Kelly’s heirs to benefit from the sale of the property. There is no room, therefore, for an inference that appellee had a felonious intent to deprive them of the property or benefit therefrom.

There has been a significant shift in the courts’ statements over the past twenty years or so as to the susceptibility of determining intent in a criminal case on a motion to dismiss. This court in Scott v. State, 137 So.2d 625 (Fla. 2d DCA 1962), citing Jalbert, stated, “Intent, being a state of mind, is not subject to direct proof and can only be inferred from circumstances.” (Emphasis supplied.) Edwards v. State, 213 So.2d 274 (Fla. 3d DCA 1968), cited to Scott for the same above quoted statement on intent. However, in Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970), the court makes a slight change in that statement where, in citing Edwards, they said, “Intent, being a state of mind, must in most cases be inferred from the circumstances.” This change was continued in a somewhat different version in State v. West, 262 So.2d 457 (Fla. 4th DCA 1972), when that court said, “Being a state of mind, intent is usually a question of fact to be determined by the trier of fact.” (Emphasis supplied.) In State v. J.T.S. and G.R.W., 373 So.2d 418 (Fla. 2d DCA 1979), this court relied on West to hold that intent is not an issue to be decided on a motion to dismiss “since intent is usually inferred from the acts of the parties and the surrounding circumstances.” (Emphasis supplied.) In State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980), this court made the same statement, relying on J.T.S. and G.R.W. In Adams v. State, 443 So.2d 1003 (Fla. 2d DCA 1983), this court reversed a conviction on a count charging grand theft in a multi-count information. The reversal was based on the insufficiency of the evidence to support the requisite felonious intent to steal. In so reversing, the court relied on Maddox v. State, 38 So.2d 58 (Fla.1948), where the court quoted from several of its earlier decisions as follows:

In larceny, the criminal intention constitutes the offense, and is the criterion which distinguishes it from trespass. Where the act is done clandestinely, or where there is an effort to conceal the possession of another’s property, or prevent the owner from discovering it, there is evidence of felonious intent; but the taking of another’s property by mistake or accident, where the animus furandi forms no part is not felony.
The intent to steal is a necessary ingredient of the offense of larceny. The burden rests upon the State to show that the property was taken animo furandi as an essential to conviction. It is appears that the taking was consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny.

38 So.2d at 59.

Finally, this court in Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984), relying partly on Adams, reversed a conviction for grand theft because the evidence was insufficient to evince a felonious intent.

We, therefore, conclude that the un-refuted facts presented in support of appel-lee’s motion to dismiss establish direct evidence that refute any inference of a felonious intent on the part of appellee. Accordingly, the order of the trial court is affirmed.

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


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Osvaldo PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-2580.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Jack D. Hoogewind, Ridge Manor, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant, Osvaldo Perez, appeals his conviction and sentence for manslaughter. He argues the trial court erred in allowing a witness to assert his fifth-amendment privilege against self-incrimination and to refuse to answer certain questions. We find his argument meritorious and reverse.

The state charged defendant with second-degree murder in the June 12, 1983, stabbing death of Juan Marchan at a tavern in Dade City. At his jury trial a number of witnesses testified that five or six people, including the defendant and Mar-chan, were involved in a fight outside the bar. None of the witnesses, however, saw who stabbed Marchan.

While some of the testimony of the state’s witnesses inferred defendant’s guilt, Esquivel Delgado, a convicted felon, gave the only direct testimony that the defendant stabbed Marchan. Delgado was in the same cellbloek with defendant after defendant was arrested. According to Delgado, while another inmate was reading defendant a newspaper article about the incident, the defendant said that “he had done that.” Delgado stated that defendant said “that he had not killed a dead man, that he had killed a dog and if he had to do it again, he would do it again.” Upon further questioning, Delgado testified that defendant said “that he had not killed a Christian, that he had killed a dog and if he was born again, he would do it again.” According to Delgado, the defendant admitted that he stabbed a person known as Juan twice in the right side.

On cross-examination defense counsel asked Delgado why he had made a knife in the jail cell “to go after” the defendant. Delgado’s attorney, who was present only to advise Delgado of his fifth-amendment rights, objected on the ground that Delgado’s answer might tend to incriminate him. Defense counsel countered that it was necessary to pursue this line of inquiry to show Delgado’s bias against the defendant. The court upheld Delgado’s assertion of the fifth-amendment privilege against self-incrimination and ruled that Delgado did not have to answer the question. Furthermore, the court precluded counsel from asking any questions involving Delgado’s possession of a knife. During the remainder of his testimony, Delgado vacilated to some extent as to whether the defendant clearly indicated whom he had supposedly killed.

At the close of all the evidence, defense counsel requested instructions on manslaughter, battery and assault. The trial court only instructed the jury on second-degree murder and the lesser offense of manslaughter. The jury found defendant guilty of manslaughter. The trial court sentenced him to seven years imprisonment, and this appeal ensued.

The defendant forcefully argues that the court erred in permitting the witness Delgado to assert a fifth-amendment privilege and to refuse to answer questions concerning his alleged threats to the defendant with a knife. He contends that the court should have ordered Delgado to respond to that line of questioning, because it was essential to his attack on Delgado’s credibility. Moreover, defendant contends this inquiry was crucial to his defense, because Delgado’s testimony was the only direct evidence indicating the defendant, one of several participants in the fight, had stabbed the victim. We agree.

A witness cannot be excused from testifying on fifth-amendment grounds when, as here, he has been duly served with a trial subpoena by the state. § 914.-04, Fla.Stat. (1983). Under these circumstances this statute, which is self-executing, granted use immunity to Delgado. Jenny v. State, 447 So.2d 1351 (Fla.1984). Consequently, the court erred in restricting defense counsel’s cross-examination of Delgado.

It is fundamental that the defendant had the right on cross-examination to attack Delgado’s credibility. Lewis v. State, 335 So.2d 336, 339 (Fla. 2d DCA 1976). Defense counsel’s obvious purpose in asking questions regarding Delgado’s alleged threats with a knife was to show Delgado’s hostility, if any, toward the defendant. Such bias was not brought out in any other testimony; therefore, the court’s error in restricting cross-examination on this point was not harmless.

Consequently, the defendant is entitled to a new trial. Of course, he can not be retried for the charge of second-degree murder. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Fla.R.Crim.P. 3.640(a).

Finally, the defendant argues that the trial court erred in refusing to give his requested jury instruction on the lesser-included offense of battery. In view of our holding, we decline to address that issue. However, on retrial, if the information alleges and the evidence establishes a battery, then a jury instruction on battery would be appropriate. In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981); Fla.R.Crim.P. 3.510(b).

Accordingly, we reverse the defendant’s conviction for manslaughter and remand for a new trial.

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


author: GRIMES, Acting Chief Judge.

text:
    Rafael Louis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-158.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Once again we are required to interpret “custody” for purposes of the speedy trial rule. Fla.R.Crim.P. 3.191(a)(4).

At approximately 11:00 p.m. on May 8, 1982, appellant was driving an automobile on Main Street in Thonotosassa. In turning south onto county road 579, he swung wide into the northbound lane causing Deputy Sheriff Turner to take evasive action to avoid a collision. Appellant continued south on the wrong side of the road with his lights out. The deputy turned around and began pursuit. About a mile down the road, appellant struck a Volkswagen, instantly killing two of its occupants. Appellant was issued criminal traffic citations for willful and wanton reckless driving and driving while his license was suspended.

On September 21,1982, the state filed an information charging appellant with two counts of manslaughter by culpable negligence as a result of the May 8, 1982, accident. On November 5, 1982, appellant moved to dismiss the information on speedy trial grounds. The court denied the motion. Thereafter, appellant pled nolo contendere, reserving the right to appeal the denial of certain pretrial motions including the motion to dismiss for failure to provide him with a speedy trial. Because we find it necessary to reverse his conviction upon this ground, we need not discuss the other points of his appeal.

The service of a citation to appear for a criminal traffic offense constitutes a taking into custody under rule 3.191(a)(4). See Singletary v. State, 322 So.2d 551 (Fla.1975). Therefore, the question on appeal is whether upon receipt of the criminal traffic citations appellant was “arrested as a result of the conduct or criminal episode which gave rise to the crime” of manslaughter. If so, he must be discharged because when he filed his motion to dismiss he had not been brought to trial within 180 days of the date of the accident.

This case is controlled by our recent decision in Carter v. State, 432 So.2d 797 (Fla. 2d DCA), petition for review denied, 440 So.2d 353 (Fla.1983), involving a head-on collision in which the driver of the oncoming vehicle was killed instantly. The defendant was charged with driving while his license was suspended or revoked. Several months later he was charged with causing a death by operation of a motor vehicle while intoxicated. This court held that for speedy trial purposes, the defendant was taken into custody for the crime charged at the time he was originally cited for driving while his license was suspended or revoked. Thus, we reasoned:

In the instant case, the criminal episode in question was the accident. At the conclusion of the events surrounding the accident, all elements of both criminal offenses which the appellant was accused of committing were present. The appellant’s conduct, i.e., driving the automobile, was the sole conduct which resulted in both criminal charges placed against him. The conduct was not only related but was the same conduct.

432 So.2d at 798.

The state seeks to split appellant’s conduct into two separate episodes. The state contends that the criminal traffic citations pertained to his driving at the time he turned onto county road 579, while the accident itself was a later, discrete event. This is an artificial distinction which cannot be sustained. In Carter, the defendant obviously drove his automobile prior to the head-on collision. Yet, we held that the accident resulted from the same conduct or criminal episode as driving while his license was suspended or revoked. Contrary to the state’s suggestion, the Carter rationale does not force the police to make arrests upon less than adequate information. The police are at liberty to withhold charges until their investigation has been completed. However, better coordination between law enforcement and the prosecutor’s office will be required to ensure that the case is brought to trial within the original speedy trial time.

The case before us is not one with separable episodes of criminal conduct. Walker v. State, 390 So.2d 411 (Fla. 4th DCA 1980) (manslaughter and leaving the scene of an accident). It is not a situation where probable cause to charge the second crime did not arise until after the arrest for the first. State v. Hoesley, 427 So.2d 1077 (Fla. 2d DCA 1983) (cocaine discovered during inventory search of defendant’s car after his arrest and confinement for driving under the influence of alcohol). Significantly, in this case the accident victims were already dead when appellant was cited. All of the elements of manslaughter were present, and the police had ample probable cause to arrest him for that crime. Thus, the charge of manslaughter arose from the same conduct or criminal episode as that underlying the criminal traffic offenses. As a consequence, we have no alternative but to set aside appellant’s conviction and direct that he be discharged.

REVERSED.

SCHEB and CAMPBELL, JJ., concur.


text:
    The BOARD OF TRUSTEES OF the CITY OF DUNEDIN MUNICIPAL FIREFIGHTERS RETIREMENT SYSTEM, Mary Bonner, Patrick Kroeger, Thomas House, James Andrews, Edward Smith, Tricia Cassidy and William Griffin, Appellants, v. Brenda Jane DULJE, Appellee.
    No. 83-2416.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    John G. Hubbard of Frazer & Hubbard, P.A., Dunedin, for appellants.
    Christopher J. Raleigh of George J. Schriefer, P.A., Pinellas Park, for appellee.
   CAMPBELL, Judge.

Appellants, the Board of Trustees of the City of Dunedin Municipal Firefighters Retirement System, Mary Bonner, Patrick Kroeger, Thomas House, James Andrews, Edward Smith, Tricia Cassidy, a/k/a Patricia Griffin and William Griffin, seek review of the final judgment finding that appellee, Brenda Jane Dulje, was the sole beneficiary of the death benefits due from the Board of Trustees of the City of Dunedin Municipal Firefighters Retirement System, and further finding that appellants William M. Griffin and Patricia Griffin have no claim to those benefits.

The first issue on appeal is whether section 175.181, Florida Statutes (1981), preempts the beneficiary designations of the City of Dunedin, Florida, ordinance number 80-42 (August 21,1980). If section 175.181 does not expressly pre-empt ordinance number 80-42, another issue arises: Whether section 175.181 conflicts with ordinance number 80-42?

In October, 1980, Lt. William J. Griffin, a firefighter, was accepted into the Dunedin Municipal Firefighters Retirement System. The plan was established under ordinance number 80-42, and specifically provided for death benefits. The plan stated that death benefits would be paid to the child or children of the deceased firefighter. Lt. Griffin designated, in writing, Brenda Jane Dulje, his daughter, as his beneficiary. His other two children, appellants William Griffin and Patricia Griffin were not mentioned. On July 12, 1981, Lt. Griffin was killed in a plane crash. This dispute ensued over the distribution of his death benefits from the Dunedin Municipal Firefighters Retirement System.

The parties agreed, and the final judgment reflects, that if the death benefits were distributed according to ordinance number 80-42, appellee, William Griffin and Patricia Griffin would share equally in the death benefits. The trial court found, however, that the provisions of section 175.181, entitled “Beneficiaries,” pre-empt-ed the beneficiary designations of ordinance number 80-42. According to section 175.181(1), the firefighter could designate, in writing, the beneficiary of his choice. Accordingly, the trial court found that ap-pellee was the sole beneficiary.

Appellants argue that chapter 175, Florida Statutes (1981) authorizes municipalities to create their own retirement plans and that there is nothing providing that section 175.181 applies to municipalities which create their own retirement plans. Appellants maintain that section 175.181 does not expressly pre-empt ordinance number 80-42 as required by section 166.021(3)(e), Florida Statutes (1981) and, therefore, the ordinance should control.

Appellee acknowledges that chapter 175 grants municipalities broad discretion in establishing their own retirement systems and death benefits. Appellee argues, however, that section 175.181 conflicts with the provisions of ordinance number 80-42, and in this situation, section 175.181 must prevail.

Under section 166.021(3)(c), Florida Statutes, a municipality’s power to legislate is limited where the subject has been expressly pre-empted to the state. Express pre-emption requires a specific statement; the pre-emption cannot be made by implication nor by inference. Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982).

Section 175.321, Florida Statutes (1981), expressly pre-empts municipal law as to sections 175.101-175.121 and sections 175.131-175.151. Section 175.321 also names several other sections of chapter 175 which do not apply to municipalities which have created their own retirement systems. Section 175.181 is not mentioned in either group. Therefore, we cannot find that section 175.181 pre-empts ordinance number 80-42. Thus, it appears that both the City of Dunedin and the State of Florida may legislate on the topic.

Where both the state and a municipality are empowered to legislate on a topic, the municipality may not enact legislation which directly conflicts with the state statute. Where a conflict arises, the state statute must prevail. Edwards v. State; Board of County Commissioners of Dade County v. Wilson, 386 So.2d 556 (Fla.1980).

If section 175.181 does not refer exclusively to the beneficiary designations under the state plan, but includes municipal plans, we must determine whether section 175.181 and ordinance number 80-42 conflict.

Section 175.181 refers to “the benefit, if any, payable in the event of his death,” and “death benefits, if any.” This phraseology includes refunds from contributions to the retirement system or pension fund, which are payable upon death, as well as specific death benefits such as life insurance payments. The state plan, established in chapter 175, does not provide for specific death benefits, although municipalities are empowered to choose to provide death benefits in their municipal plans. § 175.351(6), Fla.Stat. (1981). Where a municipality has adopted the state plan and purchased a life insurance or annuity contract to provide death benefits, the state plan provides that the beneficiaries shall be designated in accordance with section 175.-081(9), Florida Statutes (1981). It appears that unless section 175.181 applies to municipalities which have created their own retirement systems, the reference to death benefits would be useless. For this reason, we find that section 175.181 refers to the designation of beneficiaries of death benefits under municipal plans, as well as beneficiaries under the state retirement system.

We must now determine whether the statute and the ordinance conflict. In Edwards v. State, a particular statute provided the judge with various sentencing options; a municipal ordinance eliminated those sentencing options. The court held that there was a conflict between the statute and the ordinance because of the elimination of the trial judge’s sentencing options. Edwards at 86. In City of Miami Beach v. Rocio Corporation, 404 So.2d 1066 (Fla. 4th DCA 1981), a city ordinance created stricter rent controls on condominiums than the condominium statute, chapter 718, Florida Statutes (1979). The court held that chapter 718 did not expressly pre-empt the municipal ordinance. Nonetheless, the ordinance was invalid because it conflicted with the statute by prohibiting conduct permitted by the statute. City of Miami Beach v. Rocio at 1071.

Here, ordinance 80-42 dictates who shall be the firefighter’s beneficiaries, while section 175.181 provides that the firefighter may designate his beneficiary. Under the ordinance, the firefighters do not have the option to choose their beneficiaries. That conduct is, in effect, prohibited by the ordinance, even though it is permitted by the statute. Therefore, we find that section 175.181 conflicts with ordinance number 80-42. In this situation, section 175.181 must prevail over ordinance number 80-42. See Edwards v. State; City of Miami Beach v. Rocio.

For the foregoing reasons, we affirm the trial court’s finding that appellee, Brenda Jane Dulje, was the sole beneficiary of the death benefits due from the Dunedin Firefighters Retirement System.

RYDER, C.J., and DANAHY, J., concur.


text:
    Rose CANNEY, Appellant, v. Vincent CANNEY, Appellee.
    No. 83-2483.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.

      Geneva Forrester, St. Petersburg, for appellant.
    Lawrence D. Black, Largo, for appellee.
   SCHEB, Judge.

Rose Canney challenges the trial court’s entry of a final and an amended final judgment of dissolution of her marriage to Vincent Canney. The trial court, she argues, erred in refusing to hear her motion to set aside a default entered against her prior to the final hearing.

In March 1982, the wife filed her petition for dissolution. Her husband answered and counterpetitioned. Several months later his attorney propounded some interrogatories and notified the wife’s counsel that the wife’s deposition would be taken on February 23, 1983. The wife failed to answer the interrogatories or to appear for her deposition.

On March 2, 1983, the wife’s attorney filed a motion to withdraw from the case, alleging that the wife no longer wished him to represent her. The trial court granted the motion. Both the motion and the court order contained an incorrect mailing address for the wife.

The husband filed a motion for default or to impose sanctions against the wife for her failure to answer the interrogatories or attend the deposition. In response, the trial court ordered the wife to answer additional interrogatories and appear for another deposition. This motion and order also indicated they were mailed to an incorrect address for the wife. When she again failed to provide discovery, the trial court, upon the husband’s renewed motion for sanctions, entered a default against the wife striking her pleadings on July 6, 1983. This order and subsequent notices were sent to the wife’s correct address. A final hearing on the dissolution of marriage was scheduled for October 28, 1983.

Sometime prior to the final hearing, the wife retained another attorney after receiving a summons in a separate suit the husband filed against her. This attorney became aware of the default order when she contacted opposing counsel about the second suit. On October 28, 1983, the wife’s attorney filed a motion to set aside the default, alleging that her client was unable to read and comprehend the English language, and had not received any of the documents concerning the requested discovery. The attorney also alleged that the wife was never aware that she needed to produce documents, answer interrogatories or appear at court hearings. Moreover, the wife had no objection to providing discovery.

On that same date, at the final hearing on the husband’s counterpetition for dissolution of marriage, the trial judge denied the wife’s motion to set aside the default. The court cited two grounds. First, the judge said, as a successor judge, he had no jurisdiction to set aside a default entered by a previous judge in the case. Second, the wife’s motion was untimely filed. The trial court then heard the dissolution proceedings, allowing the wife only a limited participation in view of the previously entered default. She was not allowed to offer any evidence concerning matters for which she previously failed to provide discovery. At the conclusion of the hearing, the trial court entered a written final judgment and, subsequently, an amended final judgment of dissolution of marriage.

The wife argues that the trial court erroneously denied her motion to set aside the default without holding a hearing on the merits. We agree.

To set aside a default, a party must show excusable neglect and a meritorious defense. Fla.R.Civ.P. 1.500(d) and 1.540(b); Westinghouse Elevator Co. v. DFS Construction Co., 438 So.2d 125 (Fla. 2d DCA 1983); Abray Construction Co. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983). Here, the wife’s attorney alleged by motion that certain documents and notices in the proceedings were not received by the wife. This ground may be an adequate one on which to set aside a default and final judgment. See Okeechobee Insurance Agency, Inc. v. Barnett Bank, 434 So.2d 334 (Fla. 4th DCA 1983); Ellis v. Ellis, 404 So.2d 774 (Fla. 2d DCA 1981); Barry v. Barry, 324 So.2d 644 (Fla. 4th DCA 1976). While we express no opinion on the merits of the wife’s motion, the trial judge foreclosed any consideration of the merits on this issue when he erroneously refused to hear it.

Where a prior judge has entered an interlocutory order but is no longer assigned to the case, a successor judge has jurisdiction to vacate that order while the case is still pending. Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla.1971); Keathley v. Larson, 348 So.2d 382 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 131 (Fla.1978). An order entering a default is interlocutory in character. Therefore, the successor judge has jurisdiction to hear a motion to set it aside and should consider it on its merits.

Diligence of a party filing such a motion is a factor which must be considered in a hearing on the merits. Westinghouse Elevator Co.; Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977). But where, as here, a party alleges excusable neglect, a motion to set aside a default must be made within a reasonable time not more than one year after the order is entered. Rule 1.540(b). Under this rule, the wife’s motion was not untimely as a matter of law, since only approximately three and one-half months had elapsed between the default order and the motion to set aside the default.

Accordingly, we vacate the final and amended final judgments and remand to the trial court to hold a hearing on the wife’s motion to set aside the default. If the court removes the default, it will proceed to rehear the dissolution case on the merits. If, on the other hand, the trial court determines that the default should stand, it can re-enter a final judgment. In any event, either party shall be entitled to appeal the trial court’s new disposition of the case.

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

      . While the wife argues other issues on the merits of the default and the final judgment, in light of our holding, we do not reach those issues.


author: OTT, Judge.

text:
    Paul Glen YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 84-557.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
   OTT, Judge.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two points in the motion. In paragraph two he alleges that certain testimony adduced at trial was perjured and that the state was aware, at the time, that the testimony given was perjured. Attached to appellant’s motion in support of this allegation were depositions of two individuals who had encountered the witness who allegedly committed perjury while the three were incarcerated in the Reception Medical Center, Lake Butler. According to the depositions, the witness had related to both individuals that he had never met appellant, had no direct knowledge concerning appellant’s case, and had become familiar with the case through newspaper accounts. The witness told the individuals he agreed to testify against appellant as part of a bargain with the state. The state promised the witness a more favorable sentence in exchange for the witness’s damaging testimony. An affidavit of a prisoner in the Pasco County Jail told of a similar encounter with the witness. The allegation that perjured testimony was used with the state’s knowledge, if true, may entitle appellant to relief. See Rayburn v. State, 203 So.2d 212 (Fla. 2d DCA 1967), appeal after remand, 216 So.2d 791 (Fla. 2d DCA 1968); Presley v. State, 347 So.2d 731 (Fla. 4th DCA 1977). The trial court, however, failed to either conduct an evidentiary hearing or attach portions of the record which refute that allegation.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified, and attach to its order those portions of the record which conclusively show appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the ground alleged in the above portion of the motion. See Fla.R. Crim.P. 3.850. See also Lofton v. State, 442 So.2d 1091 (Fla. 2d DCA 1983), and Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

The trial judge was correct in denying the appellant’s motion as to the other point raised therein.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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


author: PER CURIAM.

text:
    Horace POWELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-912.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
   PER CURIAM.

Horace Powell, Jr., appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The allegation that appellant was improperly sentenced to serve consecutive three year minimum terms of imprisonment, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in the motion. See Fla.R.Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review any aggrieved party must appeal the new ruling of the trial court.

REVERSED.

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


author: SCHWARTZ, Chief Judge. HUBBART, Judge

text:
    Robert MASTERS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-489.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

While the defendant’s marijuana patch was located but forty feet from the side of his home, since it did not lie within a common fence or enclosure and was manifestly used for commercial rather than for family or domestic purposes associated with a dwelling, it cannot be deemed to have been within the “curtilage” of the home. Care v. United States, 231 F.2d 22 (10th Cir.1956), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956); Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965); 25 C.J.S. Curtilage p. 81 (1966); see Oliver v. United States, — U.S. -, -, n. 12, 104 S.Ct. 1735, 1743, n. 12, 80 L.Ed.2d 214, 226, n. 12 (defining curtilage as “the area around the home to which the activity of home life extends.”) Under the controlling authority of Oliver, the defendant was therefore not entitled to fourth amendment protection as to that area. On this basis, the challenged order denying suppression was correct, and the conviction for trafficking in cannibis is

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the judgment of conviction and sentence under review and remand with directions to discharge the defendant from the cause. The entire case against the defendant is based, in my view, on the fruits of an unreasonable search and seizure prohibited by the Fourth Amendment, which fruits should have been suppressed by the trial court upon proper motion filed by the defendant below.

I would hold that the defendant’s side and back yard, where the marijuana in question was seized, was part of the “curti-lage” of the defendant’s home, was not part of the “open fields” as the court herein implicitly holds, and was therefore entitled to Fourth Amendment protection. By definition, it seems to me that the yard surrounding a typical home, as here, is part of the “curtilage” of the home because it is “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life’ (citation omitted) and therefore has been considered part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, — U.S. -, -, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984). The home life of a typical homeowner necessarily extends to his yard which is considered by most people as an extension of the home itself. Indeed, it has been held that “[t]he privacy of a Florida backyard is generally protected by law” under the Fourth Amendment, State v. Rickard, 420 So.2d 303, 306 (Fla.1982), and that a homeowner’s backyard which cannot be seen from the public street, as here, is entitled to Fourth Amendment protection. State v. Morsman, 394 So.2d 408 (Fla.), cert. denied, 452 U.S. 930, 101 S.Ct. 3066, 69 L.Ed.2d 431 (1981). “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. Oliver v. United States, — U.S. at -, 104 S.Ct. at 1741, 80 L.Ed.2d at 224 (emphasis added). I think a back and side yard of a home, as here, is an area “immediately surrounding the home” and is entitled to Fourth Amendment protection; plainly, it cannot in any sense be considered part of the “open fields” and therefore beyond Fourth Amendment protection. Compare Oliver v. United States, supra. Moreover, I find nothing in the record that the defendant’s home or yard had been “converted into a commercial center to which outsiders [were] invited for the purposes of transacting unlawful business,” so as to deprive such premises of Fourth Amendment protection as a home. Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312, 316 (1966).

All else follows from the above determination. The police, I think, unconstitutionally invaded the defendant’s curtilage around his home when, without a search warrant, they hovered with a helicopter a mere thirty to forty feet above his back and side yard — practically landing on the premises — and observed the subject marijuana growing a mere forty feet from his house. Clearly, this observation from such an unreasonably low altitude over the defendant’s protected curtilage was not made from a place where the police had a right to be. People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (1973); compare Costello v. State, 442 So.2d 990 (Fla. 1st DCA 1983); Brennan v. State, 417 So.2d 1024 (Fla. 2d DCA 1982); Murphy v. State, 413 So.2d 1268 (Fla. 1st DCA 1982). Armed with this unconstitutionally-obtained helicopter observation, the police then confronted the defendant with their observations and thereafter obtained what was clearly a tainted and involuntary consent from the defendant to conduct the subject search. Taylor v. State, 355 So.2d 180, 183-84 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978).

The trial court, in my view,, erred in denying the defendant’s motion to suppress. I would reverse.


text:
    Hyder Raleigh DAVIE, Appellant, v. Barbara Jean CALTON, By and Through her next friend and mother, Mary Lee CALTON, Appellee.
    No. 83-1112.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Gold & Fox and Roberta F. Fox, Miami, for appellant.
    Melvin A. Rubin, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order denying appellant’s motion for relief from a 1969 Final Judgment of Paternity and Support Order is reversed upon a holding that where, at the time of the service of process, the appellant was a minor who had never been married, the service, which was, as the sheriff’s return itself reflects, made solely by leaving the process with the appellant’s father and explaining the contents thereof, was ineffective to confer jurisdiction over the appellant, see Gissen v. Goodwill, 74 So.2d 86 (Fla.1954); Buck v. McNab, 139 So.2d 734 (Fla. 2d DCA), cert. denied, 146 So.2d 374 (Fla.1962); Foster v. Thomas, 112 So.2d 33 (Fla. 1st DCA 1959), by reason of the process server’s failure to comply with the conjunctive and strict requirements of Section 48.041(1), Florida Statutes (1969), see Jones v. Lucks, 349 So.2d 691 (Fla. 4th DCA 1977); Flint v. Baker, 189 So.2d 654 (Fla. 2d DCA 1966); Drake v. Wimbourne, 112 So.2d 27 (Fla. 2d DCA 1959), and the resulting judgment against the appellant was void and subject to being set aside at any time, see Williams v. Richardson, 432 So.2d 58 (Fla. 3d DCA 1983); T.J.K. v. N.B., 237 So.2d 592 (Fla. 4th DCA 1970). See also McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976); J.E.S. v. B.J.F., 240 So.2d 520 (Fla. 4th DCA 1970).

Since, as the appellee concedes, the setting aside of the final judgment of paternity makes viable the appellant’s motion to require the appellee and the child to submit to tests to determine their blood types, the denial of this motion is also reversed. See Elzey v. Smith, 412 So.2d 918 (Fla. 1st DCA 1982); Bailey v. Richardson, 412 So.2d 69 (Fla. 1st DCA 1982); Simons v. Jorg, 384 So.2d 1362 (Fla. 2d DCA 1980). Cf. Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983). See also McQueen v. Stratton, 389 So.2d 1190 (Fla. 2d DCA 1980); Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980).

Reversed and remanded for further proceedings.

      . Section 48.041(1), Florida Statutes (1969), provides, in pertinent part, that process upon a minor who has never been married must be served:
      ‘‘[b]y reading the process to the minor or incompetent to be served and to the person in whose care or custody the minor or incompetent is and by delivery of a copy thereof to such person in whose care or custody the minor or incompetent is and by further serving said process on the guardian ad litem or other person, if one is appointed by the court to represent the minor or incompetent."
      In the present case the process was not read to the minor, arguably was not read to the minor’s father, and, although the minor’s father was later appointed guardian ad litem, was not served upon the minor’s father in that capacity.


text:
    Bruce GILES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1526.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Bennett H. Brummer, Public Defender, and Lehr & DeLuca, North Miami, and Bruce H. Lehr, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order finding the defendant Giles in violation of his probation on the authority of Mastick v. State, 409 So.2d 203 (Fla. 3d DCA 1982), and remand to the trial court with directions to restore the defendant to his probationary status.

Reversed and remanded with directions.


text:
    The CITY OF MIAMI, Appellant, v. BAILEY & DAWES, a professional association, Appellees.
    Nos. 83-1535, 83-1928 and 83-2656.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Jose Garcia-Pedrosa, City Atty. and Gise-la Cardonne, Asst. City Atty., for appellant.
    Bailey & Dawes and Mercedes C. Busto, Sams, Ward, Newman & Elser, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

After our affirmance of a summary judgment on liability in favor of the plaintiff law firm, City of Miami v. Bailey & Dawes, 423 So.2d 606 (Fla. 3d DCA 1982), a jury trial to assess the reasonable fee to which it was entitled ended with a verdict of $175,000. A careful review of the record in the light of the points raised on this appeal from the consequent judgment shows that the defendant city has failed to demonstrate that harmful error in fact occurred or that it preserved its present contentions to that effect below. Hercules, Inc. v. Coto, 434 So.2d 4 (Fla. 3d DCA 1983), rev. denied, 441 So.2d 632 (Fla.1983); Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983); Stowe v. Walker Builders Supply, Inc., 431 So.2d 180 (Fla. 2d DCA 1983); Metropolitan Dade County v. Brill, 414 So.2d 626 (Fla. 3d DCA 1982); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977).

We likewise find that the lower court’s order assessing prejudgment interest, entered pursuant to a stipulated reservation of jurisdiction for that purpose after the city had taken this appeal from the final judgment, was both procedurally and substantively correct. Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981); Huntley v. Baya, 136 So.2d 248 (Fla. 3d DCA 1962), cert. denied, 143 So.2d 492 (Fla.1962).

Affirmed.


text:
    Ezell FINKLEA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2144.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Freshman, Freshman & Michelson, Miami, for appellant.

      Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See McNamara v. State, 357 So.2d 410, 412 (Fla.1978); State v. Garcia, 431 So.2d 651, 651 (Fla. 3d DCA 1983).


text:
    James Robert JOHNSON, Personal Representative of the Estate of Robert Wayne Johnson, Appellant, v. Richard E. THONI, d/b/a Thoni Oil Company, Thoni Oil Company of Florida, Inc., and Thoni Service Corporation, Appellees.
    No. 83-2503.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Frances Avery Arnold, Pompano Beach, T. James Emison, Jr., Alamo, Tenn., for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellees.
    Before HUBBART and JORGENSON, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   TILLMAN PEARSON (Ret.), Associate Judge.

The plaintiff appeals from a dismissal with prejudice of his second amended complaint for the wrongful death of his decedent. The defendants were a number of Thoni corporations, other than the one which employed the decedent. The negligence alleged is that the defendants failed in their duty to provide adequate security services which they had agreed to provide. It is further alleged that as a result of this negligence, the plaintiff’s decedent was fatally shot at the Thoni filling station where he was employed.

It is unclear why the complaint was dismissed, but defendants, appellees, have suggested: (1) that the complaint fails to allege any legally recognizable duty owed by the Thoni corporations to the decedent, and (2) that the workers’ compensation statute provides immunity to these corporations which had agreed to furnish the employer with inspection and advisory services relating to safety of employees.

Before considering the possible bases for dismissal it should be noted that in argument counsel have referred to factual matters- which they say are a result of discovery. We have not considered these arguments because we have before us a judgment of dismissal on the pleadings.

The allegations of the complaint are that each of the corporations provided management and security services to decedent’s employer, employed supervisory personnel to inspect periodically the premises of the service station, and thus had a duty to all employees to provide a safe workplace or to inform decedent’s employer of the steps it could take to make the workplace safer. In Conklin v. Cohen, 287 So.2d 56 (Fla.1973), a construction case, the supreme court stated that an owner and an architect might be held liable in a third-party suit if they had participated in the construction to the extent that they directly influenced the manner in which the work was performed. The extent of the involvement of each of the corporations in the instant case is not determinable at this stage in the proceedings. Thus, the dismissal with prejudice can not be sustained upon the basis that the allegations of the complaint show that the duty alleged did not exist.

The argument that the defendant corporations were immune because of the provisions of the workers’ compensation statute can not be sustained under the law as set forth in Morris v. Bryan & Fletcher, Inc., 373 So.2d 407 (Fla. 4th DCA 1979), and in Greene v. Ivaco Industries, Ltd., 334 So.2d 347 (Fla. 1st DCA 1976). The immunity provision to which reference is made is found in section 440.11(2), Florida Statutes (1981). The complaint alleges that the corporations provided management and security services. These services do not qualify the corporations for immunity because it does not appear from the pleadings that these services were incidental to the workers’ compensation or employer’s liability coverage.

The facts developed may determine the existence or nonexistence of the duty and of the claimed immunity. The dismissal of the complaint with prejudice was error.

Reversed and remanded.

      . Section 440.11(2), Florida Statutes (1981), provides, as follows:
      (2) An employer's workers’ compensation carrier, service agent, or safety consultant shall not be liable as a third-party tortfeasor for assisting the employer in carrying out the employer’s rights and responsibilities under this chapter by furnishing any safety inspection, safety consultative service, or other safety service incidental to the workers’ compensation or employers’ liability coverage or to the workers’ compensation or employer’s liability servicing contract. The exclusion from liability under this subsection shall not apply in any case in which injury or death is proximately caused by the willful and unprovoked physical aggression, or by the negligent operation of a motor vehicle, by employees, offi-' cers, or directors of the employer’s workers’ compensation carrier, service agent, or safety consultant.


author: DANIEL S. PEARSON, Judge.

text:
    Theodore COCKIN, Jr. and Kevin William Black, Appellants, v. The STATE of Florida, Appellee.
    Nos. 84-29, 84-51.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.

      Bennett H. Brummer, Public Defender and Gelber, Glass, Durant & Grande and N. Joseph Durant, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendants, preserving the right to appeal the denial of their sworn motions to dismiss the charges against them, entered nolo contendere pleas to separate charges of carrying a concealed firearm in violation of Section 790.01(2), Florida Statutes (1983). They appeal from orders withholding adjudication of guilt and placing them on probation. We affirm as to Cockin and reverse as to Black.

The weapons, indisputably concealed, were found during a search of the persons of Black and Cockin in a motel room in which Black, according to his sworn motion, was residing, and in which Cockin, according to his sworn motion, “was inside ... with the consent of Kevin Black as well as other occupants of the room, all of whom had no objection to [Cockin] being in said room as a co-occupant thereof.” The State filed demurrers to the motions, but did not challenge the facts stated in the motions by a traverse. The trial court denied the motions on the ground that neither Black nor Cockin was a person “possessing arms at his home ...” so as to insulate them under Section 790.25(3)(n), Florida Statutes (1983), from prosecution for carrying concealed weapons. See Facion v. State, 290 So.2d 75 (Fla. 2d DCA 1974) (Section 790.25(3)(n), which makes it lawful for a person to possess firearms at his home and expressly makes the licensing provisions of Sections 790.05 and 790.06 inapplicable to such a person, must be read in pari materia with Section 790.01 and, thus read, makes it lawful for a person to carry a concealed firearm in his own home); French v. State, 279 So.2d 317 (Fla. 4th DCA 1973) (same). But cf. State v. Bryant, 373 So.2d 708, 709 (Fla. 3d DCA 1979) (Section 790.25(3)(l) not defense to carrying a concealed weapon).

Cockin’s sworn statement, albeit unchallenged, that he was in the motel room with Black’s permission, says no more than that Cockin was lawfully on the premises in Black’s motel room and does not protect Cockin from being prosecuted for carrying a concealed firearm in the room. On the other hand, Black’s unchallenged statement that he was residing in the motel room in our view makes the motel room the functional equivalent of Black’s home within the meaning of Section 790.25(3)(n), Florida Statutes (1983). See Brant v. State, 349 So.2d 674 (Fla. 3d DCA 1977) (implicitly recognizing that motel room is a home within Section 790.25(3)(n)). Cf. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (motel room is home for Fourth Amendment purposes); Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974), aff'd, 329 So.2d 270 (Fla.1976) (same).

The State says, however, that Section 790.25(3)(n) does not apply to a person who carries a concealed firearm even at his home if his purpose be the furthering of some unlawful activity, here said to be a narcotics transaction. While Section 790.-25(2)(b)l expressly provides that the protections of Section 790.25 do not apply, inter alia, to persons who carry concealed firearms in violation of Section 790.07(2), it seems clear that in order for the State to prevail in its contention that persons carrying concealed firearms at their homes lose the protection of Section 790.25(3)(n) by virtue of having violated Section 790.07(2), such persons must first have been found guilty of carrying the concealed firearm “while committing or attempting to commit any felony o'r while under indictment.” See § 790.07(2), Fla.Stat. (1983). In the present cases, the defendants were never charged under Section 790.07, much less shown to be guilty of an offense thereunder.

Accordingly, the order under review in Cockin v. State, Case No. 84-29, is affirmed; the order under review in Black v. State, Case No. 84-51, is reversed.

      . The State’s contention that the motions were not properly verified was not raised below and will not be considered by us.


text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Ellen DeMASO, Appellee.
    No. 84-146.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Robert A. Ginsburg, Dade County Atty. and Ralph C. Rocheteau, Asst. County Atty., for appellant.
    Dean & Hartman and Denis Dean, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Affirmed. Metropolitan Dade County v. Mandelkern, 372 So.2d 204 (Fla. 3d DCA 1979).


text:
    Phillip A. THOMAS, Sandra E. Postel and Taylor Brown, Appellants, v. The STATE of Florida DEPARTMENT OF REVENUE, and Dade County, Florida, a political subdivision of the State of Florida, Appellees.
    No. 84-180.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Dean, Mead, Egerton, Bloodworth, Ca-pouano & Bozarth, Orlando, Sharpstein & Sharpstein and Janice Sharpstein, Miami, for appellants.
    Jim Smith, Atty. Gen. and Jeff Kielbasa, Asst. Atty. Gen., Robert A. Ginsburg, County Atty. and Vicki J. Jay and Robert A. Cuevas, Asst. County Attys., for appel-lees.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

This appeal seeks reversal of a judgment upholding the constitutionality of Chapter 83-220, Laws of Florida, which created Sections 125.0167 and 201.031 of the Florida Statutes. The appellants contend that the act, which permits only those “countpes] as defined by s.125.011(1),” to impose a documentary surtax for the purpose of assisting low and moderate income families in the purchase and rehabilitation of their homes, is invalid as a local or special law enacted without adherence to the notice provisions of Art. Ill, Section 10 of the Florida Constitution. In Metropolitan Dade County v. Golden Nugget Group, 448 So.2d 515 (Fla. 3d DCA 1984), rev. granted, Case no. 65,324 (Fla., June 29, 1984), this court rejected the identical contentions in concluding that Chapter 83-354, Laws of Florida, which similarly authorizes those counties designated in Sec. 125.011(1) to levy a tax on rentals and leases for tourism development was a valid general law. On the point in issue here, the two statutes and thus the two cases are indistinguishable. We therefore affirm the judgment below on the authority of Golden Nugget.

In the light of the Supreme Court’s acceptance of jurisdiction in Golden Nugget and the independent significance of the issue, we certify to the Supreme Court that this decision passes upon the following question of great public importance:

Whether Chapter 83-220, Laws of Florida is a valid general law or an invalid special or local one.

Affirmed, question certified.

      . Dade County in fact enacted the authorized surtax. Dade County Ordinance No. 83-81 (1983). The present action challenges that ordinance as well as the enabling statute from which it derives.

      . It is also argued that the ordinance imposing the tax, note 1, supra, contravenes Art. VIII, Section II, Florida Constitution of 1885, as amended, the Dade County Home Rule Charter, which states that the county may levy only those taxes "authorized by general law.”

      .The appellants raise a separate question concerning the scope of an exception from the tax which we consider completely without merit.


author: PER CURIAM. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Dennis L. RIDENOUR, Appellee.
    No. 84-263.
    District Court of Appeal of Florida, Third. District.
    July 24, 1984.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellant.
    William B. Seidel, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

This is an appeal by the state from an order suppressing the fruits of an electronic surveillance of certain conversations of the defendant in his home conducted by an undercover police officer equipped with a “body bug” with the officer’s consent. The defendant attacked the surveillance in his motion to suppress as having been unconstitutionally conducted under Article I, Section 12 of the Florida Constitution as interpreted by the Florida Supreme Court in State v. Sarmiento, 397 So.2d 643 (Fla.1981). The trial court agreed and granted the motion to suppress. We reverse.

Subsequent to the Sarmiento decision, Article I, Section 12 of the Florida Constitution was amended to provide that the right secured thereby “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court,” and that “[ajrticles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.” We hold that Sarmiento does not survive these amendments to Article I, Section 12 of the Florida Constitution inasmuch as there are no United States Supreme Court decisions holding the same as Sarmiento; indeed, there are United States Supreme Court decisions in conflict with Sarmiento. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). This being so, Sar-miento is no longer the law of Florida and was erroneously relied on by the trial court as authority to suppress the fruits of the subject electronic surveillance. Moreover, it is plain that the amendments to Article I, Section 12 of the Florida Constitution are applicable to this case because the subject electronic surveillance took place after January 3, 1983, the effective date of said amendments. See State v. Lavazzoli, 434 So.2d 321 (Fla.1983).

The order under review is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

HUBBART, Judge

(concurring).

I concur in the opinion and judgment of the court. I write separately, however, to express my sincere regret at the passage of the recent amendments to Article I, Section 12 of the Florida Constitution, inasmuch as they amount, in effect, to a virtual repeal of the entire state constitutional right. By these amendments, Florida no longer has a separately protected constitutional right on search and seizure; it is now inexorably linked to the Fourth Amendment and has no independent existence apart from the Fourth Amendment. I doubt whether the voters realized that they were, in effect, repealing Article I, Section 12 of the Florida Constitution when they overwhelmingly approved the recent amendments in the November 1982 elections, but that is exactly what they did. Perhaps, with the passage of time, we will learn what a mistake that decision was and will act to restore Article I, Section 12 to its rightful place in the Florida Constitution. Until then, I think it clear that Article I, Section 12 of the Florida Constitution is a dead letter and that decisions such as State v. Sarmiento, 397 So.2d 643 (Fla.1981), interpreting this constitutional provision to give our citizens greater rights than that guaranteed by the Fourth Amendment, are, most regretably, relics of the past.


text:
    Ruben AROCHA and Maria Izabel Arocha, his wife, Appellants, v. The CHARTER CLUB, INC., a Florida non-profit corporation, Appellee.
    No. 84-717.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Brooks, Sipos & Rapoport and Andrew L. Sipos, Jr., Coral Gables, for appellants.
    Charles H. Gelman, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Heffernan, 142 Fla. 496, 195 So. 145 (1940).


author: BASKIN, Judge.

text:
    ALLIED GLASS CORPORATION, Appellant, v. The AUSTIN COMPANY, Appellee.
    No. 84-907.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Chappell & Brandt and Alan C. (Peter) Brandt, Fort Lauderdale, for appellant.
    Carl M. Lambert, Miami, for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

This interlocutory appeal requires us to decide whether in an action involving discharge of a mechanic’s lien and a counterclaim to enforce the mechanic’s lien a third-party defendant is entitled to recover attorney’s fees under section 713.29, Florida Statutes (1979). After the original parties to the lawsuit settled their claims, the trial court awarded fees and costs to The Austin Company [Austin], the third-party defendant, in an amount to be determined at a later date. We hold that the trial court erred in awarding Austin fees and costs from Allied Glass Corporation [Allied] under section 713.29. We reverse.

Subcontractor Allied sued its supplier, Shatterproof Glass Corporation [Shatterproof], seeking discharge of a mechanic’s lien and damages for breach of contract, negligence, and breach of implied warranty. In a counterclaim, Shatterproof sought to enforce the mechanic’s lien, alleging the defects in the materials were caused by design errors for which Austin, the designer of the building and the glass window units, was responsible. Allied then filed a third-party complaint against Austin alleging that if Allied was held liable to Shatterproof for design defects, then Austin, the designer, was in turn liable to Allied. Austin then filed counterclaims against both Allied and Shatterproof. After Allied and Shatterproof settled their claims, Austin amended its counterclaim, adding claims of abuse of process, malicious prosecution, indemnity, and declaratory relief. The trial court struck Austin's claims, except for the malicious prosecution count which remains pending. When the trial court granted Austin’s motion for attorney’s fees pursuant to section 713.29, Florida Statutes (1979), Allied filed this interlocutory appeal.

Section 713.29, Florida Statutes (1979) provides:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

In its order granting Austin’s motion for attorney’s fees and costs, the trial court ruled that, as the prevailing party in a claim brought against it by Allied under chapter 713, Austin is entitled to recover attorney’s fees and costs. We conclude, however, that Austin was not involved in a claim brought under chapter 713 and is therefore not entitled to attorney’s fees. Shatterproof, the only party seeking to enforce the mechanic’s lien, filed a counterclaim against Allied. Austin became a party, not on Shatterproof’s counterclaim, but by virtue of a third-party complaint resulting from a defense to an action for breach of contract, negligence, and breach of warranty.

Other courts addressing similar issues have ruled in a similar vein. In General Development Corp. v. John H. Gossett Const. Co., Inc., 370 So.2d 380 (Fla. 2d DCA), cert. denied, 379 So.2d 205 (Fla.1979), the court held that where a contractor fails to establish a mechanic’s lien but obtains a money judgment, the landowner is not entitled to attorney’s fees. In Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971), the court found no legislative intent to award attorney’s fees to a defendant in a mechanic’s lien case who successfully defends against the impression of a lien but is nonetheless held liable in damages. The court stated:

The entire statute is essentially for the benefit of a claimant, not a defendant; and the section providing for attorneys’ fees is primarily calculated to preclude any diminution of the claimant’s full compensation. ...

Id. at 500. See also First Atlantic Bldg. Corp. v. Neubauer Const. Co., 352 So.2d 103 (Fla. 4th DCA 1977) (where contractor claimed both foreclosure of lien and damages for breach of contract and prevailed only on breach of contract, landowner could not be considered prevailing party for purposes of award of attorney’s fees).

Accordingly, we hold that the third party complaint against Austin based on Shatterproof’s affirmative defense of design deficiencies by Austin does not come within the ambit of an action to enforce a mechanic’s lien under chapter 713, Florida Statutes (1979), and that the trial court erred in awarding Austin attorney’s fees and costs under that chapter.

Reversed.


text:
    Michael DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1285.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.

      Michael Davis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The appellant has taken this appeal from an order of the trial court summarily denying his motion to vacate filed pursuant to Rule 3.850 Florida Rules of Criminal Procedure. In his motion to vacate the appellant contended the trial court erred in sentencing him to two consecutive three year minimum mandatory sentences for use of a firearm in the commission of a robbery and a kidnapping both of which occurred in the same transaction. We reverse.

The Supreme Court in Palmer v. State, 438 So.2d 1 (Fla.1983) has prohibited the stacking of multiple consecutive three year minimum mandatory sentences upon conviction of separate offenses occurring in the same incident. Therefore, the consecutive minimum mandatory sentences imposed herein are in error. In accordance therewith, we remand this cause to the trial court with directions to correct the sentences so that the two minimum mandatory sentences will be served concurrently.

Reversed and remanded with directions.


text:
    James Craig BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1476.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Joan Fowler Rossin and Carolyn V. McCann, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for driving while under the influence of alcohol and leaving the scene of an accident. On the first two issues, we find the evidence was sufficient to go to the jury on the charge of willfully leaving the scene of the accident; and we find any error in the-receipt of evidence of the nature of the injuries sustained by the victim of the accident to be harmless. We also reject the appellant’s claim of error as to a jury instruction categorizing the results of a blood alcohol test as prima facie evidence of intoxication in accordance with Section 322.262, Florida Statutes (1981).

The instruction given and later objected to as incomplete by appellant only after it was given to the jury was one specifically requested by the appellant. In addition, the record reflects that the appellant rejected an earlier offer by the trial judge to give an instruction that included an explanation either as to the meaning of prima facie or that otherwise properly explained the effect of the statute. Further, the additional instruction cited by the appellant post-trial was specifically directed to presumptions rather than the meaning of prima facie evidence. Since the instruction in question makes no reference to any presumptions, we do not believe the giving of that instruction would have clarified or explained to the jury the meaning of the instruction actually given.

Finally, having reviewed all of the in-.struetions, the evidence, arguments of counsel, and the manner in which the case was presented to the jury, we believe that the jury was properly presented with the issue of intoxication based upon an evaluation of all the evidence presented on the issue and that no reversible error has been demonstrated.

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

      . The instruction provided:
      If you find from the evidence that the Defendant had a .10 percent or more by weight of alcohol in his blood, it is prima facia [sic] evidence that the evidence — that the Defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
      Immediately after the prima facie instruction the jury was told:
      The Defendant has entered a plea of not guilty. This means you must presume or believe the Defendant is innocent. The presumption stays with the Defendant as to each material allegation in the Information through each stage of the trial until it has been overcome by the evidence, to the exclusion of and beyond a reasonable doubt.
      To overcome the Defendant’s presumption of innocence, the State has the burden of proving the following two elements:
      First, the crime with which the Defendant is charged was committed;
      And second, the Defendant is the person who committed the crime.
      The Defendant is not required to prove anything.

      . The additional requested instruction, specifically revealed for the first time in appellant’s motion for new trial, provided: You may disregard any presumption if it has been rebutted or explained.
      At the hearing on the motion for new trial counsel conceded that he had mistakenly assumed that the judge would be giving an instruction routinely given in county court trials. We agree that an instruction on the meaning and effect of the categorization of the test results as prima facie evidence of intoxication should be given if requested. Black’s Law Dictionary states:
      PRIMA FACIE. Lat. At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.
      However, as noted in the opinion, the appellant declined an explanatory instruction as to the meaning of prima facie as used in the instruction.

      . The statute, Section 322.262, provides only that its provisions as to the effect of the test results constituting prima facie evidence of intoxication, shall not preclude the receipt of other evidence on the issue of intoxication. In this case, other evidence on this issue was indeed received and relied on by appellant to challenge the state’s claim that he was intoxicated.


author: ANSTEAD, Chief Judge.

text:
    Gary G. RICCIARDELLI, Appellant, v. STATE of Florida, Appellee.
    No. 83-1532.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This case involves an appeal from a denial of a motion by appellant, Gary G. Ric-ciardelli, to dismiss pending criminal charges pursuant to Florida Rule of Criminal Procedure 3.218(b) because of his continuing mental incompetency for more than five years. Ordinarily, the denial of a motion to dismiss would not be appealable because the issue could be raised after a disposition of the case on the merits. However, because of the determination that Ric-ciardelli remains incompetent to stand trial, the charges may never be decided on the merits, and without this review Ricciardelli would be effectively denied any review of the trial judge’s decision.

Ricciardelli was charged with two counts of battery in 1977. Subsequently, he was found incompetent to stand trial and was committed on January 7, 1977, to a state psychiatric hospital. After remaining committed for five years Ricciardelli moved to dismiss the charges under Florida Rule of Criminal Procedure 3.213(b) which provides:

(b) If at any time after five years after determining a person incompetent to stand trial when charged with a felony or one year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial, that there is no substantial probability that the defendant will become mentally competent to stand trial in the foreseeable future and that the defendant does meet the criteria for involuntary hospitalization set forth by law, the court shall dismiss the charges against the defendant and commit the defendant to the Department of Health and Rehabilitative Services for involuntary hospitalization or residential services solely under the provisions of law, or may order that he receive outpatient treatment at any other facility or service on an outpatient basis subject to the provisions of those statutes. In the order of commitment, the judge shall order that the administrator of the facility notify the State Attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant.

Upon receipt of the motion to dismiss the trial court appointed two psychiatric experts to examine Ricciardelli. Both of the experts agreed with the treating physicians from the state hospital who had previously reported that appellant was not presently competent nor likely to return to competency. The doctors also agreed that the appellant met the criteria for permanent involuntary hospitalization. After receiving these opinions the trial court appointed an additional expert, Dr. Charles Saporito, who also judged that appellant was not competent to stand trial. However, Dr. Saporito suggested that by treating Ricciardelli with massive doses of psychotropic medications there would be a possibility of restoring him to competency. Subsequently, and upon sole reliance on Dr. Saporito’s testimony, the trial court denied appellant’s motion to dismiss. At issue is whether this testimony constitutes competent substantial evidence to support the court’s ruling.

In his testimony, Dr. Saporito assumed that Ricciardelli had either not been treated with the appropriate drugs or that such drugs had been administered to date in inadequate dosages. The record, however, does not support these assumptions. The medical records reflect that Ricciardelli had received “practically ... every kind of medication that was available to the physicians.” Furthermore, the evidence indicates that at high dosages of some of the medications Ricciardelli had already begun developing dangerous side effects including low blood pressure, indicating his intolerence of high doses of such medication. The record also reflects that the experimentally high dosages which Dr. Saporito recommended could only be administered under conditions of strict supervision. His views as to the potential side effects were that the possible benefits to be gained, i.e. a return to competency to stand trial, were worth the risk of harm to the criminal defendant. The treating physicians testified that not only would they not administer such high doses because of the dangerous and permanent side effects involved, but supervision over such dosages would be difficult if not impossible at a state institution. In short, the treating physicians testified that there was no real chance that Ricciardelli would ever receive the treatment recommended by Dr. Sapori-to.

In addition, we note that Dr. Sa-porito alluded only to the possibility of improvement if his recommended regime were instituted. However, the test under Rule 3.213(b) is whether there is a substantial probability that the defendant will become mentally competent to stand trial in the foreseeable future. In our view Dr. Saporito’s testimony does not rise to this level. In essence that testimony was based upon speculation as to the possibility of success of a highly experimental and unproven course of treatment that in reality would never be administered to Ricciardelli. A possibility of recovery under such circumstances is simply not sufficient under the explicit test set out in the rule. Accordingly, we believe the trial court erred in denying the motion to dismiss.

We note that the main concern of the trial court was with the wisdom of the rule itself. The court expressed a valid concern over allowing violent defendants to make repeated attacks on society and expressed concern that the defense was asking the court to endanger society “because of some silly rule.” The trial court expressed the view that it would be releasing Ricciardelli to “the borderline of society” with only the opinions of the hospital staff doctors to insure that he remain in custody. In other words, the trial court was legitimately concerned that Ricciardelli, a demonstrated violent and hostile individual, might “slip through a crack” and be returned to society while still in a violent state if his release was left up to the physicians. By continuing the charges the trial court felt that an additional judicial safeguard against this contingency would be maintained. This court, too, is concerned with averting attacks upon society, but we do not believe we can ignore the scheme set out in the rule to safeguard against such events.

Under the rule, should Ricciardelli later be found by his treating physicians to no longer meet the criteria for involuntary commitment, the prosecutor is free to refile the same charges. The rule explicitly provides that if charges against an involuntarily committed defendant are dismissed then the order of dismissal shall provide that the hospital administrator notify the state attorney at least 30 days before the defendant is to be released. This scheme places the responsibility on the state attorney to promptly determine if charges should be refiled. Rule 3.214(d) provides that the provisions of Rule 3.191 (speedy trial) do not apply to a defendant who is adjudged incompetent until (in the case of a defendant whose charges have been dismissed) the date the charges are again filed. The rule also tolls the statute of limitation in cases where a defendant has been judged incompetent and has had the charges dismissed without prejudice.

Hence, although the rule does not provide for judicial review of the subsequent release of such defendants, the rule clearly provides for a means of recharging the defendant along with all of the safeguards, including rearrest, that go along with recharging. Admittedly, the responsibility under this scheme rests with the state attorney and the physicians rather than the court. We, however, are not entitled to ignore such a scheme even if we agree that judicial review would be a better alternative.

In accord with the above, we believe the trial court was in error in denying the motion to dismiss. However, since a substantial time has passed since the last hearing and mindful of the concerns noted above, we remand this cause to the trial court with directions that the state be given an opportunity, within a period not to exceed 30 days from the date this decision becomes final, to advise the court if it has any evidence that the appellant’s status has materially changed since the last hearing. If such evidence is cited to the trial court then an additional hearing should be conducted promptly. Barring a good faith representation by the state of the existence of such evidence the trial court is directed to enter an order in accord with the terms of this opinion.

DOWNEY and GLICKSTEIN, JJ., concur.

      . In a similar case the Second District accepted jurisdiction of a petition for writ of common law certiorari filed by the state to challenge the propriety of a trial court's order releasing a defendant who had been acquitted by reason of his insanity. State v. Vigil, 410 So.2d 528 (Fla. 2d DCA 1982).

      . Dr. Saporito testified that he had no idea of the medication received by appellant in 1976, in 1977, and in his hospitalization from 1978 until the present. In fact, the only report Saporito saw that was relevant to appellant’s treatment during his hospitalizations was, by Saporito’s characterization, "a rather meaningless document that was devoid of any information.” Sa-porito then testified that he assumed that appellant’s medications were in insufficient dosages because he had "no reason to think otherwise."


text:
    MILLER YACHT SALES, INC., f/u/b/o Aetna Insurance Company, Appellant, v. MISSION MARINE ASSOCIATES, INC., d/b/a Pacemaker Yacht Co., et al., Appellees.
    No. 83-1109.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Lise S. Armater of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellant.
    Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellee Commercial Union Assur. Co.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees Drake Ins. Co. of New York and Caryl, Anthony, Vaghn & Gibbs.
   PER CURIAM.

Affirmed. We find no error in the trial court’s entry of summary judgment on the basis that the appellant’s claim for property damage against a boat manufacturer insured by appellee insurers was excluded from coverage by a specific exclusion in the insurance policies. The exclusion provided that no coverage was extended to property damage to the named insured’s products arising in any ■ way out of the products themselves. We find no dispute in the record here that the claim was for property damage to a boat manufactured by the insured manufacturer and that the damage arose out of such product. Cf. LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980). We reject appellant’s contention that its claims, predicated on the manufacturer’s alleged failure to install a fire safety system or to warn of the lack thereof, fell outside of the exclusion.

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


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

text:
    Jerome Robert KLEIN, Appellant, v. LAYNE, INC. OF FLORIDA, a Florida corporation, and Royal Trust Bank Corp., a Florida corporation, Appellees.
    No. 83-1437.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Charles S. Dale, Jr., of Dale & Stevens, Fort Lauderdale, for appellant.
    Jill Nexon of Arky, Freed, Stearns, Watson & Greer, P.A., Miami, for appellee, Royal Trust Bank Corp.
   OWEN, WILLIAM C., Jr., Associate Judge.

We answer here what was left unanswered in Greenberg v. Manor Pines Realty Corp., 414 So.2d 260 (Fla. 4th DCA 1982), — that a plaintiff who initiates an action which presents a justiciable issue of law or fact is not subject to being assessed an attorney’s fee under Section 57.105, Florida Statutes (1981), even though, at some point in the course of the litigation prior to final disposition, the action becomes no longer sustainable on either the law or the facts.

Plaintiffs complaint alleged that he was the owner in fee simple of certain real property subject to a 99 year lease under which defendant was a sublessee, that defendant planned to erect an office building to be located partly on plaintiff’s property and partly on the adjacent property owned by defendant, and that plaintiff was in doubt as to his rights under the lease which permitted construction on the leased property but provided that upon termination of the lease any improvement thereon would become the property of the fee simple owner. There is no suggestion that the complaint was frivolous. On January 25, 1982, seven months after the complaint was filed, defendant filed its answer in which it alleged that “since the filing of this action, Royal Trust Bank Corp. has submitted revised plans for approval by the City of Hallendale (which) provide for two separate, free-standing buildings ... (one of which) is to be a full-scale banking facility, entirely situated on the land owned by Royal Trust Bank Corp. in fee simple (and) the other building is a small, drive in facility which will be located entirely on the land ... owned by plaintiff ... these plans have been approved and Royal Trust Bank Corp will build in accordance with them.” Some three months later, at hearing on defendant’s motion for summary judgment, plaintiff took a voluntary dismissal without prejudice. Thereafter the trial court, upon appropriate motion and hearing, awarded to defendant attorney’s fees for that portion of the proceedings subsequent to January 25, 1982, finding that from the time of the filing of the bank’s answer (the allegations of which apparently were undisputed) plaintiff continued the action recklessly and with no reason on his part to believe that the bank was liable to the plaintiff.

The trial court found, and we accept, that after the bank served its answer on January 25, 1982, and plaintiff became aware that the bank no longer intended to erect an office building astride the boundary line between plaintiff’s property and the bank’s property, the plaintiff was aware that no justiciable issue of law or fact remained to be litigated. But the purpose of Section 57.105 is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorney’s fee awards on losing parties who engage in these activities. Sachs v. Hoglund, 397 So.2d 447 (Fla. 3d DCA 1981). Plaintiff’s claim was not baseless when initiated and we think it neither proper nor wise to apply the provisions of Section 57.105 against this plaintiff simply because at some point in the course of the litigation, defendant, by ceasing the course of conduct which plaintiff complains, thereby renders moot the relief sought under the complaint and leaves at that point no remaining justiciable issue of law or fact to be resolved. While good common sense might suggest, if not indicate, a cessation of hostilities at that point, there are ample remedies available to the defendant and to the court by which, under such circumstances, prompt disposition of the case can be made. No litigant whose case is non-frivolous at its inception should be burdened with second guessing the court as to the exact point during the course of the litigation where there remain no justiciable issues of law or fact to be resolved, at the risk of being penalized through an attorney’s fee award for failure to recognize that point when it is reached.

In summary, we think that under the teaching of Whitten v. Progressive Casualty Insurance Company, 410 So.2d 501 (Fla.1982), a plaintiff whose claim is nonfrivolous at its inception should not be assessed with attorney’s fees under Section 57.105, Florida Statutes (1981), even though at some point in the course of litigation it becomes apparent that there no longer remains any justiciable issue of law or fact. In other words, the frivolousness of a claim (or, for that matter, of a defense) is to be judged and determined as of the time it is initially presented, and if it can pass muster at that point, subsequent developments which render the claim (or the defense) to be without justiciable issue in law or fact should not subject the losing party to the price tag of bearing the other party’s attorney’s fees by virtue of an award under Section 57.105, Florida Statutes (1981).

The order awarding defendant an attorney’s fee is reversed.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    ISLE OF PARADISE “A”, INC., a Florida corporation not for profit, et al., Petitioners, v. Peter A. HOTCHKISS and Jill Hotchkiss Worden, Co-Trustees of the Ira A. Hotchkiss Irrevocable Trust, Respondents.
    No. 84-780.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Ned Kimmelman of Goldman, Leibell & Kimmelman, P.A., Hollywood, for petitioners.
    Bradford J. Beilly of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for respondents.
   PER CURIAM.

We grant certiorari to the extent that we quash the order of the trial court compelling petitioner to answer interrogatory # 27. Respondent has failed to demonstrate that the information sought by this interrogatory is reasonably calculated to lead to the discovery of admissible evidence in the trial of this cause. See, Florida Rule of Civil Procedure 1.280(b)(1). We find no error in the trial court’s order compelling petitioner’s answer to interrogatory # 6.

CERTIORARI GRANTED.

LETTS, BARKETT and DELL, JJ., concur.


text:
    ALLIED ELECTRIC SUPPLY, INC., Appellant, v. FRENENV, N.V., a foreign corporation, and Kaufman & Robers, Inc., a Florida corporation, Appellees.
    No. 84-619.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Jeffrey B. Smith of Cooper, Shahady, Frazier, Pugatch & Meyer, Fort Lauder-dale, for appellant.
    Barry D. Hunter of Paul, Landy, Beiley & Harper, P.A., Miami, for appellees.
   PER CURIAM.

The order dismissing appellant’s cause is hereby reversed, the parties having stipulated that the cause was dismissed by the trial court upon an improper basis advanced in error by the parties below.

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


text:
    Lewis Edward OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1357.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Lewis Edward Owens, pro se appellant.
    No appearance required by appellee.
   PER CURIAM.

The order denying post-conviction relief, from which this appeal is taken, recites in pertinent part that the court “finds based upon all the pleadings in the case that the Defendant’s motion is without merit .... ”

We reverse and remand with instructions to comply with the alternatives provided by Rule 3.850 as follows:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

REVERSED AND REMANDED.

HERSEY, DELL and WALDEN, JJ., concur.