author: OTT, Chief Judge.

text:
    Michael Anthony RIFE, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-2373 to 82-2375.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

The trial court adjudicated Michael Anthony Rife guilty of and sentenced him for both grand theft and dealing in stolen property. We reverse and set aside the grand theft conviction and sentence as violative of section 812.025, Florida Statutes (1981).

Section 812.025 prohibits a defendant from being found guilty of both grand theft and dealing in stolen property where the two offenses arose from one scheme or course of conduct.

In the instant case, the informations charged defendant with stealing a boat and a motor belonging to Richard Fernandez on February 25, 1981, and dealing the same property on the same date. The factual basis recited by the assistant state attorney at the plea hearing essentially tracked the allegations contained in the informations. Without something more to meaningfully disrupt the flow by a clearly disjunctive interval of time or set of circumstances, defendant’s conviction of and sentence for grand theft must be set aside. See Victory v. State, 422 So.2d 67 (Fla. 2d DCA 1982); Williams v. State, 404 So.2d 1165 (Fla. 2d DCA 1981).

We do not mean to infer and do not read section 812.025 to prohibit convictions of both grand theft and dealing in stolen property in all situations where the same property is involved. Cf. Cleaves v. State, 450 So.2d 511 (Fla. 2d DCA 1984). The statutory prohibition against dual convictions only extends to the theft and dealing in stolen property “in connection with one scheme or course of conduct.” The state may be able to prove that the theft of property and sale of that same property are distinct and unrelated criminal incidents. But cf. Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981).

We vacate and set aside the conviction and sentence on the grand theft charge. In all other respects, the judgment and sentences are affirmed.

BOARDMAN and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Jose Antonio ROSARIO, Alterman Transport Lines Inc., and Bankers and Shippers Insurance Company of New York, Appellants, v. Nancy Johnson MELVIN, Appellee.
    No. 83-1661.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.

      William A. Donovan and Ronald L. Napier of Napier & Donovan, Naples, for appellant Jose Antonio Rosario.
    Jeffrey C. Quinn of Sparkman, Erickson, Quinn, P.A., Naples, for appellee.
   GRIMES, Judge.

In this appeal from a final judgment of $61,000, appellants contend that the court erred in failing to grant a new trial because the jury improperly applied the doctrine of comparative negligence.

The case involved personal injuries which were suffered in a two car accident. At the trial there was evidence of both negligence and comparative negligence. The court gave the standard jury instruction on these issues, and the appellants requested no special instructions on such issues. Ultimately the jury returned the following verdict:

VERDICT

We, the Jury, on the claim of Plaintiff, NANCY JOHNSON MELVIN, find for the Plaintiff as follows:

1. JOSE ANTONIO ROSARIO was negligent in the following percentage 60_%.
2. NANCY JOHNSON MELVIN was negligent in the following percentage 40_%.
3. Taking into account the above-referenced percentages, we find that the Plaintiff, NANCY JOHNSON MELVIN, is entitled to 61,000 as the proper amount of damages she has sustained.
SO SAY WE ALL.

Dated: This 26 day of January 1983.

/s/ Donald F. Hickey
As Foreperson

At no time did appellants object to the form of the verdict.

Later appellants filed a motion for new trial supported by an affidavit of one of the jurors stating that the jury did not reduce the $61,000 figure by the percentage of comparative negligence. The court interviewed three jurors but their comments were indecisive as to whether or not comparative negligence had been applied to reduce the verdict to $61,000. The court denied the motion for new trial.

Appellants contend that the court erred in permitting the jury to make the reduction in the amount of the verdict attributable to comparative negligence without proper instructions. Even if appellants’ argument has any merit, it comes too late.

The court did not employ the special verdict form contained in Florida Standard Jury Instructions in Civil Cases, Model Charge No. 1. This form, which follows the suggestion of Lawrence v. Florida East Coast Ry., 346 So.2d 1012 (Fla.1977), provides for the jury to determine only the parties’ respective percentages of negligence and the plaintiff’s total damages, leaving for the court the mathematical calculation necessary to reduce the verdict by the percentage of comparative negligence. While the verdict form submitted in this case was somewhat unclear, it did instruct the jury to take into account “the above-referenced percentages” in determining damages. Be that as it may, appellants waived any ambiguities when they failed to object to the form of the verdict.

Moreover, immediately following publication of the verdict, the court asked the jury if the $61,000 figure was a net figure after the reduction of the percentage. One of the jurors answered affirmatively. This colloquy occurred in the presence of the other jurors and shortly thereafter they each agreed to the verdict in a jury poll. The fact that some of the jurors were later confused over how the verdict was reached did not provide a legal basis to set it aside. See Cummings v. Sine, 404 So.2d 147 (Fla. 2d DCA 1981).

AFFIRMED.

BOARDMAN, A.C.J., and DANAHY, JJ., concur.


author: SCHOONOVER, Judge.

text:
    CITY OF CLEARWATER, Jack Bryant and Bill Burchfield, Appellants, v. Eugene B. THOMAS, Appellee.
    No. 83-1994.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.

      Richard Griesinger, Asst. City Atty., Clearwater, for appellants.
    Elizabeth Anne Goodale, Largo, for ap-pellee.
   SCHOONOVER, Judge.

Appellants, City of Clearwater (City) and its agents, Jack Bryant and Bill Burchfield, have filed this interlocutory appeal from an order granting appellee, Eugene B. Thomas, a partial summary judgment. We reverse.

Appellant Bryant, a Clearwater police officer, towed appellee’s homemade boat from its mooring place to the Clearwater Marina where it was impounded. When appellee discovered that his boat was missing, he went to the marina and demanded its return. While the parties were disputing over the amount of impoundment and storage fees claimed by the City, the boat disappeared. The record indicates that the marina was guarded by city personnel between the hours of 6:00 a.m. and 9:00 p.m. and by private security personnel between 9:00 p.m. and 5:30 a.m. The boat was stolen between 5:30 a.m. and 6:00 a.m. on March 13, 1980.

After the boat’s disappearance, appellee filed a two-count complaint in the trial court. The first count-sought damages for wrongful taking without due process of law, and the second count sought damages for negligence.

The trial court granted a partial summary judgment on appellee’s negligence count. The court found that the City was a gratuitous bailee of the boat and held that the City and its agents were negligent in failing to protect and return appellee’s boat. This appeal timely followed.

A bailee is not an insurer of property entrusted to its keeping and is not liable for the loss of the bailed property except where there is a breach of duty of a requisite degree of care. Fruehauf Corp. v. Aetna Insurance Co., 336 So.2d 457 (Fla. 1st DCA 1976). Since appellants were gratuitous bailees, before a summary judgment could be properly entered, appellee had the burden of showing that appellants committed gross negligence as a matter of law. Armored Car Service, Inc. v. First National Bank, 114 So.2d 431 (Fla. 3d DCA 1959).

We recognize that, in a bailment for mutual benefit, the bailee’s failure to return the bailed property in accordance with the terms of the bailment agreement, raises a presumption of negligence on the part of the bailee, unless he satisfactorily explains such failure. The law under such circumstances imposes on the bailee the burden of showing that he exercised the degree of care required by the nature of the bailment. Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). This presumption of negligence has been extended to apply to gratuitous bailees. Marine Office-Appleton & Cox Corp. v. Aqua Dynamics, Inc., 295 So.2d 370 (Fla. 3d DCA 1974); see also, 8 Am.Jur.2d Bailments § 326 (1980). Furthermore, a bailor may be entitled to a summary judgment on a prima facie showing of entitlement to the presumption of negligence if the bailee fails to present evidence contradicting that presumption. Ferrell Jewelers v. Southern Mill Creek Products Co., 205 So.2d 657 (Fla.1967). However, this presumption is a vanishing one. Insurance Company of Pennsylvania v. Estate of Guzman, 421 So.2d 597 (Fla. 4th DCA 1982).

In the case sub judice, we find that appellants did present some evidence rebutting said presumption. First, appellants explained the disappearance of the boat by presenting evidence of theft. Next, appellants established that the boat was properly tied to a slip in a well lighted and guarded area. Therefore, some degree of care was exercised by appellants. The question remaining as to whether it was due care sufficient to negate gross negligence was a question for the trier of fact, and accordingly, summary judgment should have been denied. Clermont Marine Sales, Inc.

We accordingly reverse and remand for proceedings consistent herewith.

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


author: SHARP, Judge. DAUKSCH, Judge,

text:
    Benjamin E. WRIGHT, Appellant, v. Albert YURKO, Leon C. Dorman, Lila Dorman and Barnette Greene, Appellees.
    Nos. 82-1438, 82-1497.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.

      Robert W. Bowles, Jr., Orlando, and Joe Alfred Izen, Jr., Houston, Tex., for appellant.
    Michael R. Levin, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, P.A., Orlando, for appellee Yurko.
    Michael R. Walsh, Orlando, for appellees Dorman.
    Roy B. Dalton, Jr., of Dalton & Pro-vencher, P.A., Orlando, for appellee Greene.
   SHARP, Judge.

Wright appeals from judgments denying him relief as plaintiff in two malicious prosecution cases. The cases were consolidated on appeal because they involved the same parties and the same incident. In one suit, which was disposed of by summary judgment, Wright sued Yurko, who represented Leon and Lila Dorman in their malpractice case against Wright. We affirm the summary judgment in that case.

The other suit was filed by Wright against the Dormans and Barnett Greene, an expert witness who testified at the malpractice trial for Leon Dorman. This case was dismissed because the lower court ruled the amended complaint failed to state a cause of action. Greene was also awarded attorney’s fees pursuant to section 57.-105, Florida Statutes (1981). We reverse the dismissal of the complaint and the award of attorney’s fees.

The issue in the Greene-Dorman case is whether the second amended complaint states a cause of action on any ground. The complaint sets forth the factual background out of which both lawsuits arose. In 1976 Wright administered a treatment called a caudal epidural block to Leon Dor-man for the purpose of alleviating his lower back pain. During the course of these treatments or thereafter, both retinas of Leon’s eyes hemorrhaged, resulting in impaired vision. The Dormans retained Yur-ko to represent them in bringing a malpractice suit against Wright. The case was tried before a jury for two weeks, and resulted in a favorable verdict for Wright.

Wright then brought suit against the Dormans and Greene, in essence alleging that the Dormans conspired with Greene to bring the malpractice case, with malice and intent to injure Wright, and without any basis or probable cause to have done so. In addition, there are also allegations that Dormans and Greene conspired to, and gave, false and perjured testimony at the trial with the intent to injure Wright. Wright alleged damages of lost business profits, suit money, and attorney’s fees incurred by defending the suit.

Wright’s complaint against Yurko contains essentially the same allegations except it claims Yurko instigated the suit and conspired with others to injure Wright by presenting perjured testimony. A third count alleges a cause of action of libel and slander against Yurko for statements he and his witnesses made in connection with the malpractice case.

With regard to civil suits for perjury, libel, slander, defamation, and the like based on statements made in connection with judicial proceedings, this state has long followed the rule, overwhelmingly adopted by the weight of authority, that such torts committed in the course of judicial proceedings are not actionable. Perl v. Omni International of Miami, Ltd., 439 So.2d 316 (Fla. 3d DCA 1983); Sailboat Key, Inc. v. Gardner, 378 So.2d 47 (Fla. 3d DCA 1979); Bencomo v. Morgan, 210 So.2d 236 (Fla. 3d DCA 1968); State v. Tillett, 111 So.2d 716 (Fla. 2d DCA 1959). Parties, witnesses and counsel are accorded absolute immunity as to civil liability with regard to what is said or written in the course of a lawsuit, providing the statements are relevant to the litigation. The reason for the rule is that although it may bar recovery for bona fide injuries, the chilling effect on free testimony and access to the courts if such suits were allowed would severely hamper our adversary system. Remedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state.

Since privilege bars Wright’s causes of action against the Dormans, Greene and Yurko for defamation, it follows that there can be no actionable conspiracy to commit the same acts. An actionable conspiracy requires an actionable underlying tort or wrong. An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy. Buchanan v. Miami Herald Publishing Company, 230 So.2d 9 (Fla.1969); Kent v. Kent, 431 So.2d 279 (Fla. 5th DCA 1983); Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981), petition for review denied, 412 So.2d 463 (Fla.1982). Therefore, the counts in both lawsuits which attempt to allege a cause of action in defamation and conspiracy to commit defamation and/or perjury are insufficient as a matter of law, and those causes of action were properly dismissed as to the Dormans, Greene, and Yurko. See Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971).

The only private remedy in this context allowed or recognized is the ancient cause of action of malicious prosecution. This tort has its own special elements and defenses. They are:

(1) A criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action;
(2) the proceeding was instigated by the defendant in the malicious prosecution action;
(3) the proceeding has ended in favor of the plaintiff in the malicious prosecution aetion;
(4) the proceeding was instigated with malice;
(5) without probable cause and
(6) resulted in damage to the plaintiff in the malicious prosecution action.

Kalt v. Dollar Rent-A-Car, 422 So.2d 1031, 1032 (Fla. 3d DCA 1982). If all of these elements of malicious prosecution are properly pleaded in a complaint, the suit must be allowed to proceed. Hopke v. O’Byrne, 148 So.2d 755 (Fla. 1st DCA 1963). On the other hand, if one element is not sufficiently pleaded, the complaint should be dismissed. Napper v. Krentzman, 102 So.2d 633 (Fla. 2d DCA 1958).

We think that Wright pleaded all of the required elements of malicious prosecution against the Dormans and Greene, and therefore, the lower court improperly dismissed the amended complaint. Although verbose and stated in a conclusory fashion, see Hopke, Wright touched on each of the elements for malicious prosecution, as well as for conspiracy to commit malicious prosecution. He alleged that the malpractice suit was filed without probable cause and with malice and intent to injure him; it concluded in his favor; and it resulted in special and general damages to him. Wright further alleged that Greene conspired with the Dormans to bring the suit. Since the complaint stated a cause of action for malicious prosecution, the award of attorney’s fees to Greene under section 57.-105 was improper. Vogel v. Allen, 443 So.2d 368 (Fla. 5th DCA 1983).

In the Yurko suit, similar pleadings were taken beyond bare allegations. Counsel for Yurko moved for summary judgment and attached an affidavit with exhibits seeking to show that Yurko researched and investigated the Dorman case and had a reasonable belief that Dorman had a tenable claim against Wright., In his affidavit, Yurko set forth the names and conclusions of four medical experts he consulted, the medical books and treatises he read, and a history of his consultations with Dorman. Wright failed to file any counter-affidavits in opposition to the summary judgment motion.

Attempting to create a fact issue which would preclude summary judgment and thereby avoid the consequences of failing to file any counter-affidavits or depositions, Wright argues that Yurko’s affidavit should be disregarded because it fails to state it was made on the basis of Yurko’s personal knowledge. In order to bar affidavits based on hearsay, Florida Rule of Civil Procedure 1.510(e) requires that affidavits supporting or opposing summary judgment shall be made on the basis of personal knowledge.

In this case, although the preamble to Yurko’s affidavit omitted the introductory statement that he was making it based on personal belief and knowledge, it is clear from the statements made in the body of the affidavit that they were based on his own knowledge. He listed his own conversations, research, and activities he took regarding his preparation for, and the filing of, the malpractice suit. Since there could be no other source for the statements other than his personal knowledge, we think Yur-ko’s affidavit was in proper form.

The effect of Yurko’s motion for summary judgment was to shift the burden to Wright to come forward and show with proper proofs that a material question of fact existed as to whether Yurko brought the suit without probable cause. Noack v. B.L. Watters, Inc., 410 So.2d 1375 (Fla. 5th DCA 1982); Hardcastle v. Mobley, 143 So.2d 715 (Fla. 3d DCA 1962). Probable cause in the context of a civil suit is measured by a lesser standard than in a criminal suit.

But obviously less in the way of grounds for belief will.be required to justify a reasonable man in bringing a civil rather than a criminal suit.... [T]he instigator need not have the same degree of certainty as to the facts, or even the same belief in the soundness of his case, and that he is justified in bringing a civil suit when he reasonably believes that he has a good chance of establishing it to the satisfaction of the court or jury. He may, for example, reasonably submit a doubtful issue of law, where it is uncertain which view the court will take.
[Termination of the proceeding in favor of the plaintiff against whom it is brought is no evidence that probable cause was lacking, since in a civil action there is no preliminary determination of the sufficiency of the evidence to justify the suit. [Footnotes omitted],

W. Prosser, Law of Torts § 120, at 854-855 (4th ed. 1971). To establish probable cause, it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, but rather that he had a reasonable belief, based on facts and circumstances known to him, in the validity of the claim.

In Central Florida Machine Company, Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA), petition for review denied, 434 So.2d 886 (Fla.1983), a similar case against an attorney was disposed of in his favor by summary judgment. As in the instant case, the plaintiff in Williams had filed nothing in opposition to a motion for summary judgment. The appellate court held that summary judgment was proper because the probable cause determination was, at that juncture, a question of law and the affidavits were sufficient to show that the.attorney conducted a reasonable investigation of the facts prior to filing suit, and had developed sufficient information to support “a reasonable honest belief in a tenable claim.” Id. at 203. The court observed that if attorneys were required to meet too high a standard, it “could conceivably prohibit attorneys from pursuing and establishing new causes of action and could hinder the development of new legal theories.” Id. It suggested the same standard as that adopted to test frivolous lawsuits and the award of attorneys’ fees pursuant to section 57.105 should govern whether suits are filed without probable cause in the context of malicious prosecution suits.

We need not in this case adopt such a low standard. The affidavit here shows Yurko reasonably researched and investigated his case, and had a tenable theory to present to the court and jury. The fact that the case went to the jury and survived motions for summary judgment and directed verdict (which were most surely made), while not conclusively proving probable cause, is a strong indication of a substantial case. Cf. Pinkerton v. Edwards, 425 So.2d 147 (Fla. 1st DCA 1983); K-Mart Corporation v. Sellars, 387 So.2d 552 (Fla. 1st DCA 1980). Since one of the essential elements for malicious prosecution, filing without probable cause, was established as lacking in the suit against Yurko, summary judgment was properly entered in his favor. Kalt.

We recognize that our determination that Yurko had probable cause to file the malpractice suit may have a binding effect in Wright’s suit against the Dor-mans and Greene. However, reliance on advice of counsel is not an absolute defense in a malicious prosecution case. Further pleadings in the Dorman-Greene case will be required to raise this affirmative defense, and Wright may be able to challenge its application in his reply or facts raised in the record as that case progresses. Therefore, final disposition by us, on the basis of the amended complaint and motion to dismiss, would be premature in the Dorman-Greene case.

AFFIRMED AS TO APPEAL NUMBER 82-1438; REVERSED AS TO APPEAL NUMBER 82-1497; AND REMANDED.

COWART, J., concurs.

DAUKSCH, J., concurs in part; dissents in part, with opinion.

DAUKSCH, Judge,

concurs in part; dissents in part:

I would affirm the trial court in all respects.

      . The complaint is exceedingly prolix and disorganized and, therefore, we have had to summarize its content rather than quote it as we would have preferred to do.

      . 70 C.J.S. Perjury § 92 (1951); Restatement (Second) of Torts §§ 586-88, 635 (1981).

      . 16 Am.Jur.2d Conspiracy § 55 (1964).

      . W. Prosser, Law of Torts, § 114, (4th ed. 1971); see S.A. Robertson v. Industrial Ins. Co., 75 So.2d 198 (Fla.1954); Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977).

      . Buchanan v. Miami Herald Publishing Co., 230 So.2d 9 (Fla.1969).

      . 10 FIa.Jur.2d Conspiracy-Civil Aspects § 1 (1979).

      . Id.; Prosser, supra note 4, at § 119; see Bencomo v. Morgan, 210 So.2d 236 (Fla. 3d DCA 1968); Leach v. Feinberg, 101 So.2d 52 (Fla. 3d DCA), cert. denied, 104 So.2d 596 (Fla.1958).

      . Cf. Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981).

      . The comment to Florida Rule of Civil Procedure 1.510 states "the requirement that it [the affidavit] show affirmatively that the affiant is competent to testify to the matters stated therein is not satisfied by the statement that he has personal knowledge; there should be stated in detail the facts showing that he has personal knowledge."

      . Goldstein v. Sabella, 88 So.2d 910 (Fla.1956).

      . Gallucci v. Milavic, 100 So.2d 375 (Fla.1958).

      . City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).

      . Collateral estoppel may be applicable. See United States Fidelity and Guar. Co. v. Odoms, 444 So.2d 78 (Fla. 5th DCA 1984).

      . [A]dvice of counsel is a defense to an action predicated upon malicious prosecution only in [the] event there has been a full and com-píete disclosure made to the attorney before his advice is given and followed.

        Glass v. Parrish, 51 So.2d 717, 721 (Fla.1951); see Paulk v. Buczynski, 106 So.2d 100 (Fla. 2d DCA 1958); Prosser, supra, note 4, at § 119.


author: COWART, Judge.

text:
    Gary Edward DUBA, Appellant, v. STATE of Florida, Appellee.
    No. 82-1670.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

The defendant, driving a van, pointed an air pistol at a victim and said, “Get in the van or I’ll kill you.” The victim fled. The defendant was apprehended, charged with, and convicted of, the offense of aggravated assault with a deadly weapon (§ 784.-021(l)(a), Fla.Stat.) and the offense of attempted kidnapping (§§ 777.04 and 787.-01(l)(a)8, Fla.Stat.).

Considering all of the facts and circumstances, including certain contents of the van, we find sufficient competent evidence for the charge of attempted kidnapping to go to the jury and from which the jury could infer (as it did) that the defendant had the specific mental intent to inflict bodily harm upon, or to terrorize, the victim as required by the kidnapping statute (§ 787.01(l)(a)3, Fla.Stat.). See State v. Williams, 444 So.2d 13 (Fla.1984); Lynch v. State, 293 So.2d 44 (Fla.1974); Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), rev. den., 426 So.2d 25 (Fla.1983); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

The air pistol in question was designed to expel as projectiles, small round metal pellets, or shot, commonly known as BB’s, by the release of gas from a small container or “cartridge” of compressed carbon dioxide (C02) gas. When seized by the police the air pistol lacked the necessary C02 cartridge and none were found on the defendant or in the van. Further, the police found the pistol was inoperative when loaded with a C02 cartridge. An issue at trial was whether the air pistol was a deadly weapon within the meaning of the aggravated assault statute.

The trial court prohibited the defense counsel from arguing to the jury that the particular air pistol was not in fact a deadly weapon because it did not contain the necessary C02 cartridge and was in fact inoperative and incapable of expelling a projectile that could do bodily harm. Because that issue was a question for the jury to decide as a matter of fact, we hold the trial court erred and reverse the defendant’s conviction of the aggravated assault charge.

M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982), and other cases hold that a firearm is a deadly weapon as a matter of law for purposes of the aggravated assault statute, regardless of whether it is loaded or capable of firing and expelling a projectile. As explained in Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970), a threat made with a gun can cause such subjective fear and reaction as to foreseeably cause death or great bodily harm to the assailant or bystanders even if the gun used in an assault is not loaded and is not itself directly capable of producing death or great bodily injury. While this may be true as a practical matter, it does not change the correct meaning of the term “a deadly weapon,” which, as part of a criminal statute, must be strictly construed. Accordingly, we agree with Judge McNulty, dissenting in Jones v. State, 238 So.2d 661 (Fla. 2d DCA 1970), and reject the expansive view of the definition of “a deadly weapon”, contained in M.R.R. and Bass, supra.

We hold that whether or not an object is a deadly weapon is a question of fact to be determined by the jury from the evidence, taking into consideration its size, shape and material and the manner in which it was used or was capable of being used. All facts having probative value as to these matters are admissible on this issue and arguable by counsel and this includes facts relating to whether an object which may be capable of producing death or great bodily harm only by expelling a projectile was, at the relevant time, capable in fact of doing so. See Harpham v. State, 435 So.2d 375 (Fla. 5th DCA 1983), as limited by Ridley v. State, 441 So.2d 188 (Fla. 5th DCA 1983). But see Emshwiller v. State, 443 So.2d 488 (Fla. 2d DCA 1984); Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983).

The conviction of attempted kidnapping is affirmed and the conviction for aggravated assault is reversed and the cause is remanded for a new trial on the aggravated assault charge.

AFFIRMED in part; REVERSED in part.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . We note that on the page of the judgment and sentence relating to the aggravated battery offense (Count I) the trial court wrote, "No sentence — Count 1 is lesser of Count 2." This action and reference appears to have been based on this court's interpretation of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), in Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982). In view of Bell v. State, 437 So.2d 1057 (Fla.1983), it appears that if, as the trial court suggests, the battery (or aggravated battery) offense is a necessarily lesser included offense of the attempted kidnapping offense, constitutional double jeopardy prevents a trial and conviction for the lesser included offense and, if it is not, section 775.021(4), Florida Statutes (1983), directs a separate sentence on the conviction of battery (or aggravated battery) offense. On this remand we leave the initial determination of that question to the trial court.


author: PER CURIAM.

text:
    Wally S. TATRO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1738.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    James K. Freeland, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

It appears from the record that the state failed to prove, by a greater weight of the evidence, that the appellant’s conduct violated the terms of his probation. Accordingly, the trial court abused its discretion in revoking appellant’s probation. The order of revocation of probation and the sentence imposed thereon are vacated and the cause remanded with directions to reinstate appellant’s probation.

DAUKSCH and SHARP, JJ., and SCOTT, R.C., Associate Judge, concur.


author: SHARP, Judge.

text:
    Joseph Martin BROCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-317.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Brock appeals from judgments adjudicating him guilty of burglary of a dwelling and four counts of grand theft. We reverse and remand this case for a new trial because the prosecutor improperly commented upon Brock’s right to remain silent.

Brock chose not to testify at his jury trial. During closing argument, the prosecutor told the jury that: “Today is the day he has to stand up and, ‘fess to what happened and pay for what he did.” Defense counsel immediately objected and moved for a mistrial. We believe that this comment was fairly susceptible of being interpreted by the jury as referring to Brock’s failure to testify. Layton v. State, 435 So.2d 883 (Fla. 3d DCA 1983).

Such a comment mandates the reversal of any criminal conviction because the harmless error rule does not apply. Harris v. State, 438 So.2d 787 (Fla.1983). Therefore, despite the fact that overwhelming evidence was adduced at trial against Brock, we have no choice but to reverse his convictions and remand this case for a new trial. However, we affirm the trial court’s determination that Brock’s confessions were voluntary, and find that they were properly entered into evidence.

REVERSED AND REMANDED.

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

      . § 810.02(3), Fla.Stat. (1981).

      . § 812.014(1), Fla.Stat. (1981).

        .Harris v. State, 438 So.2d 787 (Fla.1983); U.S. Const. amend. V.


text:
    Leon L. HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-543.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

We affirm this case without prejudice to file an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850 raising the issue of proper credit for jail time served. Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981); see also Jablonskis v. State, 422 So.2d 356 (Fla. 5th DCA 1982).

AFFIRMED.

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


text:
    Timothy W. FELTNER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1232.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    Timothy W. Feltner, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Fenn v. State, 418 So.2d 286, 288 n. 2 (Fla. 5th DCA 1982); Amlotte v. State, 435 So.2d 249, 252 (Fla. 5th DCA 1983).

ORFINGER, C.J., and COBB and CO-WART, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Richard PULLIAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-770.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.
    Jerry Hill, Public Defender, and Robert L. Williams, Jr., Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The defendant, Richard Pulliam, appeals the lower court’s order adjudicating him guilty of the sale of a counterfeit controlled substance. We reverse and remand.

The defendant was charged by information with the sale of a counterfeit controlled substance in violation of section 817.563, Florida Statutes (1981). The facts surrounding the charge and subsequent conviction are as follows:

Arthur Johnson, a narcotics detective for the Pasco County Sheriff’s Department, was working undercover at the Bulls Eye Bar in Zephyrhills, Florida. He and his partner, Debra McKendree, had been investigating several lounges in that area over a period of several months. On the evening of February 22, 1982, Officer Johnson saw the defendant walking out of the Bulls Eye Bar as Johnson and McKendree were arriving. The two men greeted each other outside the bar, and the defendant asked Officer Johnson if he “did acid.” Johnson said he did. The defendant told Johnson that he would sell him some for four dollars “a hit.” Officer Johnson and the defendant walked to the rear of the bar where the transaction was completed.

During his opening statement at trial, the prosecutor stated:

That substantially is the whole thing you’ll hear about a series of drug investigations that went on over — over a period of five, five and a half months about this time, that Mr. Johnson and Ms. McKen-dree were involved in.

Defense counsel’s objection to this comment was overruled. Later in the trial, the prosecutor sought to elicit testimony from Officer Johnson on the same subject matter:

Q. Did you in fact arrest Mr. Pulliam on the 22d of February?
A. No, I didn’t.
Q. Why not?
A. Well, there was an ongoing investigation into the — State—(interrupted)
BY MR. EBLE: Objection, Your Hon- or, the same as what I mentioned before about this ongoing investigation.
BY THE COURT: All right, sir, objection overruled.
BY MR. HOWARD [Assistant State Attorney]:
Q. Why didn’t you arrest him again?
A. There was an ongoing investigation into all the people that were doing narcotics in the area. I had to work approximately two months prior to making any cases, locating people that were doing drugs. When I discover who they was, I would make it my business to go out and purchase drugs from them. And by arresting anyone, I would have a disadvantage, my cover would have been disposed of and I would not have been able to work undercover any more.
Q. How many months of the investigation, continuing the investigation after February 22nd of last year?
A. I believe until the end of April, the beginning of May.
Q. Okay. Were you able to determine when Mr. Pulliam was in fact arrested for that particular charge?
A. We had a roundup — I believe it was June the 11th. I believe we arrested everyone that I made [a] case against.

Again, defense counsel’s objection to the reference to the state’s ongoing investigation was overruled.

On appeal, Pulliam argues, inter alia, that the comments made and elicited by the prosecutor concerning this series of ongoing drug investigations conducted by the state are irrelevant and highly prejudicial to the defendant and constitute reversible error. We agree.

The test of admissibility is relevancy and the test of inadmissibility is lack of relevancy. Johnson v. State, 130 So.2d 599 (Fla.1961). However, even “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.... ” § 90.403, Fla.Stat. (1983). See Sias v. State, 416 So.2d 1213 (Fla. 3d DCA), pet. for rev. den., 424 So.2d 763 (Fla.1982). In this case, the comment made by the prosecutor in his opening statement, which demonstrated no relevance, suggested defendant’s involvement in a wave of criminal activities and, as such, was prejudicial. See Buckhann v. State, 356 So.2d 1327 (Fla. 4th DCA 1978); Kellum v. State, 104 So.2d 99 (Fla. 3d DCA 1958). While this comment, alone, might not create an inference in the minds of the jury so highly prejudicial as to require reversal, this statement, coupled with Officer Johnson’s comments, reaches that level of prejudice.

Although the state suggests that the relevance of Officer Johnson’s testimony was to show why the defendant was not immediately arrested, this suggestion is not well taken. First, Officer Johnson could have explained that the state was conducting other unrelated investigations and therefore did not arrest the defendant immediately. Such testimony would have been sufficient for that purpose without the testimony regarding the ongoing narcotics investigation. Second, even assuming there were some arguable relevance in this testimony, its probative value is clearly outweighed by its prejudicial effect. In Armstrong v. State, 377 So.2d 205 (Fla. 2d DCA 1979), we held that evidence of a crime by a third party was reversible error “in that the testimony is not relevant to the crime charged and is highly prejudicial by inferring criminal conduct on the part of defendant from criminal conduct of a third party,” notwithstanding the fact that the state urged that the testimony was necessary to explain the reason for the employees’ surveillance. See also Albright v. State, 378 So.2d 1234 (Fla. 2d DCA 1979). Similarly, in this case repeated reference to the state’s ongoing investigation is highly prejudicial to the defendant’s case. We therefore hold that evidence of the state’s ongoing narcotics investigation, specifically that portion indicating that the investigation was directed towards people “doing narcotics” in the area, which may well have left the jury with the highly prejudicial implication that the defendant was in some way involved in the collateral investigation, was reversible error.

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

REVERSED and REMANDED.

SCHEB and RYDER, JJ., concur.


text:
    STATE of Florida, ex rel. Orneta M. QUIGLEY, Appellant, v. James Webster QUIGLEY, Appellee.
    No. 83-1501.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.
    Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for appellant.
    Robert L. Donald and William C. Merchant of Pavese, Shields, Garner, Haver-field, Dalton & Cottrell, Fort Myers, for appellee.
   HOBSON, Acting Chief Judge.

The state, ex relatione Orneta M. Quigley, appeals an order rendered in favor of James W. Quigley which dismissed Mrs. Quigley’s petition for enforcement of an alimony clause of an out-of-state divorce decree. We affirm because, in our view, a Florida circuit court lacks subject matter jurisdiction under the Uniform Reciprocal Enforcement of Support Act (hereinafter “URESA”) to enforce an alimony provision of an out-of-state divorce judgment.

Mrs. Quigley, a resident of Wayne County, Michigan, filed a petition in the Wayne County Circuit Court to initiate support proceedings under the URESA against her former husband, Mr. Quigley, a resident of Lee County, Florida, in order to enforce a $50 a month permanent alimony provision of a final judgment of divorce which had been filed by the Michigan court several years earlier. The Michigan court issued an order which certified that Mrs. Quig-ley’s petition set forth facts from which it could be determined both that Mr. Quigley owed a duty of support and that the Lee County Circuit Court could obtain jurisdiction. Upon being served with the petition by the Lee County Circuit Court, Mr. Quig-ley submitted a motion to dismiss it, alleging that the URESA provides enforcement remedies for only child support, not alimony. After conducting a hearing on the matter, the Lee County Circuit Court rendered an order dismissing the petition with prejudice for lack of subject matter jurisdiction under the URESA.

The state, ex relatione Mrs. Quigley, contends on appeal that the history of the URESA, the language of the URESA, and interpretations of the URESA by courts in other states show that the court below had subject matter jurisdiction under the URE-SA to decide Mrs. Quigley’s request for enforcement of the alimony provision. Mr. Quigley counters by pointing out that the Florida Legislature revised the URESA in 1979 and stresses that, in so doing, it inserted section 88.012, entitled “Legislative Intent.” He submits that the wording of section 88.012 is “extremely important” to this appeal because he is of the belief that it evidences the legislature’s intent to limit the scope of the word “support,” which is found in numerous subsequent sections of the URESA, to support for unemancipated minor children, not a former spouse. The state replies that the recent decision by our sister court in Helmick v. Helmick, 436 So.2d 1122 (Fla. 5th DCA 1983), directly resolves the issue at bar. In Helmick, notwithstanding the language of the recently inserted section 88.012, the Fifth District Court of Appeal interpreted the URESA as applying to support for a former spouse, as well as dependent minor children.

We agree with Mr. Quigley’s position and therefore respectfully disagree with our sister court’s holding in Helmick. The polestar for all statutory construction is legislative intent. See, e.g., Parker v. State, 406 So.2d 1089, 1092 (Fla.1982); State v. Webb, 398 So.2d 820, 824 (Fla.1981). Legislative intent is determined primarily from the language of the statute. See, e.g., St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982); S.R.G. Corp. v. Department of Revenue, 365 So.2d 687, 689 (Fla.1978). The legislative intent with regard to the URESA is manifested by section 88.012. Contrary to our sister court’s statement in Helmick that section 88.012 makes merely a “passing reference to child support only,” 436 So.2d at 1123, this section in fact plainly says several times that the URESA shall apply to enforcement of foreign child support judgments. This section not once remarks that the URESA shall also apply to alimony provisions of foreign divorce decrees.

Section 88.012 reads in its entirety:

Common-law and statutory procedures governing the remedies for the establishment and enforcement of orders of support for children by responsible parents under the Uniform Reciprocal Enforcement of Support Act have not proven sufficiently effective or efficient to cope with the increasing incidence of establishing and collecting child-support obligations when the petitioner and respondent reside in different states. The state, therefore, exercising its police and sovereign powers, declares that the common-law and statutory remedies pertaining to family desertion and non-support of dependent children shall be augmented by the additional remedies directed to the resources of the responsible parents as mandated by the Florida IV-D program in chapter 409. In order to render resources more immediately available to satisfy child-support orders, it is the legislative intent that the remedies provided herein shall be in addition to, and not in lieu of, existing remedies. It is declared to be the public policy of this state that this act shall be construed and administered to the end that the children residing in this or some other state shall be maintained from the resources of responsible parents, whether the responsible parents live in this or some other state, thereby relieving, at least in part, the burden borne by the custodial parent or the general citizenry through public assistance programs.

(Emphasis added.)

Mr. Quigley’s argument that section 88.012 reveals that the Florida Legislature intended for the URESA to apply only to support for dependent minor children, but not to alimony for a former spouse, is buttressed by a recognition that, before section 88.012 was inserted into the URE-SA by the revisions of 1979, the URESA was held to apply to child support and alimony. See Thompson v. Thompson, 93 So.2d 90, 93 (Fla.1957); Cox v. State, 180 So.2d 467, 470 (Fla. 2d DCA 1965); Clark v. Clark, 139 So.2d 195, 197 (Fla. 2d DCA 1962); 1977 Op.Att’y Gen. Fla. 077-77 (July 26, 1977). The legislature is presumed to be cognizant of the judicial construction of a statute when contemplating making changes in the statute. See Seddon v. Harpster, 403 So.2d 409, 411 (Fla.1981). Thus, it is presumed that when the legislature effectuates changes in the statute, it intends to accord the statute a meaning different from that accorded it before the changes were made. See, e.g., Seddon; Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968). Given the aforementioned construction of the URESA prior to the insertion of section 88.012 in 1979, it is logical to conclude that the legislature’s reason for injecting section 88.012 was to evince its disapproval of that construction.

The state, noting that “alimony” is a type of “support,” see Black’s Law Dictionary, Rev. 4th Ed. (1968), points to several portions of the URESA which speak solely in terms of “support,” see sections 88.031(3), (9) and (19), and reasons that the URESA applies to alimony. However, the various parts of a statute should be construed consistently with one another in order to harmonize all of its portions. See, e.g., State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 269, n. 5 (Fla.1978); Vocelle v. Knight Brothers Papers Co., Inc., 118 So.2d 664 (Fla. 1st DCA 1960). Reading the word “support” in subsequent sections of the URESA in pari materia with section 88.012, which the state has not done, the term “support” means only “child support.”

Because Florida law controls in this case, see section 88.081, it is not of importance how other courts construe out-of-state versions of the URESA. In any event, even though several out-of-state cases have either held or intimated that the obligor is responsible under the URESA for alimony as well as child support, see O’Neill v. O’Neill, 420 So.2d 261 (Ala.Civ.App.), aff'd 420 So.2d 264 (Ala.1982); Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1965); Weller v. Weller, 14 Ariz.App. 42, 480 P.2d 379 (Ariz.Ct.App.1971); Government of the Virgin Islands v. Lorillard, 358 F.2d 172 (3d Cir.1966), it should be noted as well that various other states have either held or expressly provided that the URESA does not apply to alimony, see, e.g., Parker v. Parker, 593 S.W.2d 857 (Tex.Civ.App.1980); Idaho Code, § 7-1049(f) (1981).

Accordingly, we affirm the order granting Mr. Quigley’s motion to dismiss Mrs. Quigley’s petition with prejudice for lack of subject matter jurisdiction under the URE-SA.

AFFIRMED.

RYDER and CAMPBELL, JJ., concur.

      . See §§ 88.011-88.371, Fla.Stat. (1981).


text:
    Jacquie Lowe ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1504.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.
    Jerry Hill, Public Defender, Paul C. Helm, Asst. Public Defender, and Gerald 0. Johnson, Certified Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Jacquie Lowe Robinson appeals from revocation of her probation and sentence for obtaining property by worthless check.

In the judgment, appellant was ordered to pay $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). Appellant, an indigent, was not given prior notice that costs under these sections would be assessed against her. Accordingly, the assessment was not appropriate and is hereby stricken. Jenkins v. State, 444 So.2d 947 (Fla.1984); Kerney v. State, 445 So.2d 381 (Fla. 2d DCA Feb. 3, 1984). Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

In all other respects, the judgment and sentence are AFFIRMED.

OTT, C.J., and SCHOONOVER and LE-HAN, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Curtis Mitchell SAMMONS, Appellee.
    Nos. 83-1612 to 83-1614.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.

      Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    James R. Dirmann of Dirmann & Scott, Sarasota, for appellee.
   RYDER, Judge.

The state appeals an order granting ap-pellee Sammons’ motions to dismiss the three informations filed against him for first degree grand theft in violation of section 812.014(2)(a), Florida Statutes (1981). We reverse.

The first information alleged that on July 26, 1982, appellee committed grand theft with respect to a 1981 Chevrolet Corvette, “said property being of the value of $20,-000 or more lawful money.” The second information stated that on March 28, 1983, appellee committed grand theft with respect to a 1978 Mercedes 450SL, “said property being of the value of $20,000 or more lawful money.” The third information alleged that between July 1 and July 30, 1982, appellee committed grand theft with respect to another 1981 Chevrolet Corvette, “said property being of the value of $20,000 or more lawful money.”

The First District Court of Appeal recently addressed the same issue which is now before us. In Davis v. State, 445 So.2d 627 (Fla. 1st DCA 1984), the court explained:

With respect to the grand theft count, the state charged the defendant with first degree grand theft, a second degree felony, alleging that the motor vehicle had a value of $20,000 or more. The appellant contends that it was error to deny his motion to dismiss the charge of grand theft in the first degree. The appellant says that theft of a motor vehicle is a third degree felony under the theft statute and that the state is not at liberty to charge first degree grand theft where the property is a motor vehicle even though the vehicle has a value of $20,000 or more. We do not believe that the legislature intended such a construction of the provisions of the theft statute. A more reasonable construction, and one we adopt, is that the enumeration of certain kinds of property in section (2)(b) of the theft statute is a recognition that stealing certain kinds of property should be treated at least as third degree felonies regardless of the value of such property but that first degree grand theft may be charged where that property has a value of $20,-000 or more. The fact that such a construction imbues the prosecuting authority with the discretion to decide whether to charge theft of a $20,000 motor vehicle as a third degree felony under subsection 2(b) or as a first degree felony under subsection 2(a) is unavailing to the defendant. See Soverino v. State, 356 So.2d 269 (Fla.1978); State v. Copher, 395 So.2d 635 (Fla. 2d DCA 1981); Cf. State v. Young, 371 So.2d 1029 (Fla.1979). (emphasis supplied).

We agree with the reasoning of our sister court in Davis and, therefore, adopt its analysis and holding. Accordingly, we reverse and vacate the trial court’s order dismissing the three complaints, direct the lower court to reinstate the informations, and we remand for further proceedings consistent with this decision.

REVERSED, VACATED and REMANDED with instructions.

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


author: RYDER, Judge;

text:
    David HALE and Nelson Rios, Appellants, v. STATE of Florida, Appellee.
    Nos. 83-1754, 83-1755.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge;

Appellants Hale and Rios, through an Anders v. State of California brief, seek review of their judgments and sentences for robbery with a deadly weapon in violation of section 812.13(2)(a), Florida Statutes (1981). Although informed of their right to file a supplemental brief, neither appellant has chosen to exercise this right. Therefore, after reviewing the Anders brief and examining the record on appeal, we find no merit in the contentions that there was insufficient evidence to sustain the convictions and that the trial court committed reversible error in admitting the statements made by appellant Rios and overheard by Officer Lash.

In the Anders brief, appellants’ counsel also argued the trial court erred in ordering each appellant to pay $10.00 pursuant to section 960.20, Florida Statutes (1981), (Crimes Compensation Trust Fund) and $2.00 pursuant to section 943.25(4), Florida Statutes (1981), (Law Enforcement Training and Correctional Officer Training Trust Fund). Upon examination of the record, we strike the portion of each appellant’s judgment and sentence which requires him to pay the above-mentioned costs because we find nothing in the record to indicate that either appellant was given notice that these costs would be imposed and was also given an opportunity to object to the assessments. Jenkins v. State, 444 So.2d 947 (Fla.1984); Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984). Our decision to strike the court costs is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

Therefore, we AFFIRM the convictions and sentences as modified herein.

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

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493 (1967).


text:
    Eddie Dean HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-689.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Bennett H. Brummer, Public Defender, and Joseph C. Segor, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

The defendant was arrested on an outstanding bench warrant as a result of a traffic violation charge. He was read his Miranda rights and then advised that he was going to be interrogated in regard to an unsolved homicide. Following questioning, he gave an oral confession that he was the paid killer of the victim “drug dealer”. Subsequently, after again being advised of his Miranda rights, he gave a statement which was reduced to writing and executed by him. After he was indicted he moved to suppress the two confessions. At the hearing on the motion, after the state presented its evidence, the defendant declined the opportunity to testify and the trial court denied the motion to suppress. Thereafter the matter came on for trial before a different trial judge. The motion to suppress was renewed. The second trial judge indicated that he found the statements to be voluntary based on the prior trial judge’s ruling and would leave the question of coercion as testified to by the defendant to the jury.

We find no error in the first judge’s ruling on the original motion to suppress. Ross v. State, 386 So.2d 1191 (Fla.1980); State v. Williams, 434 So.2d 967 (Fla. 3d DCA 1983); State v. Delgado-Armenta, 429 So.2d 328 (Fla. 3d DCA 1983).

We also find no error in the second trial judge submitting to the jury the issue of whether the confessions were voluntarily given in light of the defendant’s testimony that they were the result of coercion and duress. McDole v. State, 283 So.2d 553 (Fla.1973); Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982); Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

We have examined the other rulings urged as erroneous and find these points to be without merit. Tibbs v. State, 397 So.2d 1120 (Fla.1981); State v. Williams, supra; Davis v. State, 425 So.2d 654 (Fla. 5th DCA 1983); Compare, Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla.1971); State v. Garcia, 422 So.2d 926 (Fla. 3d DCA 1982).

Therefore the verdict, judgment and sentence be and they are hereby affirmed.

Affirmed.

      . "THE COURT: The Court finds that the statement heretofore entered into evidence by the state has been freely and voluntarily given.
      The Court denies the motion to suppress.
      MR. MCDONALD: Is the Court making a specific finding of fact as to how it arrived at this:
      THE COURT: The Court finds that the answers to the questions that as a matter of fact in this Court's opinion indicates that the Defendant understood exactly what he was doing in signing.
      The mere fact that some of the statements are not perhaps as counsel would or I would like them to be as clear as makes very little difference.
      I’m convinced the overall statements that were given, the Defendant understood exactly what he was signing, gave it freely and voluntarily and knew the factual basis of it. Did it freely and voluntarily.
      Therefore, the motion is denied."

      . "THE COURT: As to the Motion to Suppress, the Court will again adopt the previous ruling of Judge Arthur Snyder and deny the motion.
      As to the issue concerning the question of sufficiency of the evidence, the Court is aware, without citations or cases that indicate that a confession alone plus the corpus delicti is sufficient to create a jury issue.
      It is the viewpoint of this Court that it is strictly a question of credibility of witnesses as to whether or not to believe the confession or not.
      With that statement by the Court, I consider it to be a jury issue.”


author: FERGUSON, Judge. SCHWARTZ, Chief Judge

text:
    R.D.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-798.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, a sixteen-year-old juvenile, was arrested in possession of a stolen and severely damaged moped from which the identification number had been removed; he had no registration documents for the vehicle. The explanation offered by appellant for being in possession of the recently stolen property was that he had purchased the moped from a boy named Rodney Middleton for $35 and that it was in poor condition when he bought it. It is conceded here, by the State, that no attempt was made to verify or refute appellant’s testimony. On the charge of grand theft, appellant was adjudicated delinquent and committed to the custody of the Department of Health and Rehabilitative Services.

Appellant contends that the circumstantial evidence relied upon by the state is insufficient to support the delinquency adjudication, relying mainly upon two recent cases of the court which are factually similar — R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982) and R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981). We held in R.A.L. that:

[T]he respondent’s unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped — that he bought it at a flea market — rendered the state’s case, which was based solely on the inference provided by Section 812.-022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt. 402 So.2d at 1337.

The State argues that this case is factually distinguishable from R.A.L. and R.M. because there are incriminating circumstances inconsistent with appellant’s explanation in addition to the inference provided by the statute — specifically that the identification number on the vehicle had been removed.

But an inference that the identification number was removed by the person who sold the moped to appellant is just as reasonable as, and comports with, appellant’s otherwise unrefuted testimony that he purchased the vehicle in poor condition from a person named Middleton. In other words, the alleged additional incriminating circumstances do not point to this appellant as the thief to the reasonable exclusion of some other person. There is then no meaningful distinction between this case and those relied upon by appellant. “The law does not deal in probabilities, but in proof of guilt beyond [a] reasonable doubt.” A.R. and F.M. v. State, 393 So.2d 1174, 1175 (Fla. 3d DCA 1981), citing Davis v. State, 90 So.2d 629 (Fla.1956) and Fisk v. State, 138 Fla. 815, 190 So. 10 (1939).

Reversed and remanded with directions to discharge the appellant.

SCHWARTZ, Chief Judge

(dissenting).

I would agree that, standing alone, the circumstantial evidence introduced against R.D.S. is insufficient, applying the usually applicable rule on the subject, to establish his guilt. But, uniquely in a prosecution like this one for theft, the state is aided by the statutory inference of guilty knowledge supplied by Sec. 812.022(2), Fla.Stat. (1983). State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969). That inference may, in turn, be dissipated as a matter of law, only when the possession of a recently stolen object is “satisfactorily explained” by entirely “unrefuted, exculpatory, and not unreasonable” testimony of innocence. R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981). Accord, R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981).

In my view, the evidence that the moped’s identification number had been deliberately defaced was an “additional incriminating circumstance” under R.A.L., which takes this case out of that category. I think that the trial judge, as the trier of fact, was entitled to consider the likelihood either that the respondent knew or should have known of the removal or that he had done it himself and conclude, as the court obviously did, that the juvenile’s testimony was unworthy of belief and thus that the legislatively-imposed inference of guilt had not been overcome. See State v. Graham, 238 So.2d 618 (Fla.1970). I believe therefore that P.N. v. State, 443 So.2d 193 (Fla. 3d DCA 1983), and State v. Fox, 404 So.2d 799 (Fla. 3d DCA 1981), rather than R.A.L., R.M., and A.R., control. I would affirm.

      . Section 812.022(2), Florida Statutes (1983) provides:
      Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen, [e.s.]


author: DOWNEY, Judge.

text:
    Michael McTEVIA and Mary Ann McTevia, Appellants, v. Paul SCHRAG and Prudential Property and Insurance Company, Appellees.
    No. 82-2289.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.

      F. Blane Carneal, P.A., Fort Lauderdale, for appellants.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, and Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellee-Prudential Property and Ins. Co.
   DOWNEY, Judge.

Appellants, Mr. and Mrs. McTevia, were plaintiffs in the trial court. They brought suit against appellees to recover for injuries incurred in a motor vehicle accident with appellee, Schrag.

A crucial issue concerning liability was whether the McTevias were on the wrong side of the road at the point of impact. At the time of the incident Brien Epstein, a friend of the McTevias, told an officer investigating the collision that he had been following the McTevias in his car but he did not witness the accident. Two weeks later Epstein appeared at the police station and advised officers that he had lied at the scene of the accident; he said he actually saw the accident and Schrag was on the wrong side of the road while the McTevias were on their proper side.

The McTevias moved in limine to preclude any evidence relative to Epstein’s first statement that he had not seen the accident on the ground that such a statement was a report privileged under Section 316.066(4), Florida Statutes (1981). Initially, the trial court granted the motion, but after further study of the question the court ruled the evidence admissible because the statute was inapplicable. From a judgment in favor of the McTevias, which they felt was inadequate, they have perfected this appeal.

It is contended that the change in ruling after the jury was chosen prejudiced McTe-via’s case. On a more substantive basis, the McTevias argue the trial court erred in denying their motion in limine to exclude evidence of Epstein’s first statement. We hold the trial judge ruled correctly and that the McTevias did not demonstrate any prejudice that would constitute reversible error.

There are a number of cases construing various aspects of Section 316.066. From those cases and Sections 316.064, 316.065, and 316.066 of the statutes we learn that certain persons, the driver or the owner or an occupant, if the driver is incapacitated, are required to make a report if their vehicle is involved in an accident resulting in bodily injury or death or severe property damage. Such a report or statements made to an investigating officer forming the basis of his report are privileged and cannot be used in subsequent litigation arising out of the accident except for purposes not relevant here. This privilege inures only to those required to make the report. State v. Coffey, 212 So.2d 632 (Fla.1968); State v. Edge, 397 So.2d 939 (Fla. 5th DCA 1981); Lobree v. Caporossi, 139 So.2d 510 (Fla. 2d DCA 1962). It does not apply to statements of other witnesses or persons who may volunteer information to the investigating officer. The privilege is constitutionally mandated because the statutes require a report under penalty of law and in certain instances the report could otherwise be in derogation of one’s Fifth Amendment rights. State v. Coffey, supra. From the foregoing lessons it appears that Epstein was not required by law to report to the investigating officer; he was therefore not involved in the accident within the meaning of Section 316.066(4), Florida Statutes (1981). Thus, the testimony regarding Epstein’s change in story was admissible.

However, even if Epstein’s statement had not been admissible, its admission would not be reversible error here because it was clearly cumulative of other testimony regarding that statement and no prejudice was demonstrated by the change in ruling by the court.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

BERANEK and WALDEN, JJ„ concur.


text:
    STATE of Florida, Appellant, v. Earl W. HAYES, Appellee.
    No. 82-2327.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joy Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

REVERSED. We believe the trial court erred in ruling that the provisions of section 831.31, Florida Statutes (1981), were facially unconstitutional and dismissing the charges filed against the appellant for allegedly violating the statute.

The appellant contends that the statute is defective because it fails to specifically provide the element of intent to defraud, a defect we found fatal in reviewing another statute in State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984). We cannot agree that the lack of such element renders the statute void. Section 831.31, as noted in its title, is directed to the problem of the distribution of counterfeit controlled substances, i.e., substances that may be identified as one thing but are really another. We agree that the statute does not make criminal the innocent possession of a counterfeit controlled substance, i.e., the possession by one who has no knowledge that the substance is counterfeit and who is otherwise lawfully entitled to possess what is apparently a valid controlled substance. Section 831.31 is also unlike section 893.-13(2)(a)7, Florida Statutes (1981), which prohibits one from keeping a lawfully dispensed controlled substance in any container other than the one in which it was originally dispensed. See State v. Walker, 444 So.2d 1137 (Fla. 2d DCA 1984).

In conclusion, we uphold the facial constitutionality of section 831.31 and reverse and remand this cause for further proceedings in accord herewith.

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.

      . 831.31 Counterfeit controlled substance; sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver.—
      (1) It is unlawful for any person to sell, manufacture, or deliver, or to possess with intent to sell, manufacture, or deliver, a counterfeit controlled substance. Any person who violates this subsection with respect to:
      (a) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (b) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (2) For purposes of this section, "counterfeit controlled substance” means:
      (a) A controlled substance named or described in s. 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance; or
      (b) Any substance which is falsely identified by its container or labeling as a controlled substance named or described in s. 893.03.


author: LETTS, Judge.

text:
    Ward William CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1932.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Alan I. Karten, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The defendant was charged with possession of cocaine and driving under the influence. A motion to suppress physical evidence was filed and the trial court denied it without granting a hearing on the motion, over objection by defense counsel. We agree with the defendant and reverse.

Florida Rules of Criminal Procedure 3.190(h) and (i) govern motions to suppress. Under these two sections, a motion can be summarily denied if it is legally insufficient. Although the defendant asserts that there is no case law defining the term ‘.‘legally sufficient,” several cases indicate that a motion must clearly state the reasons for suppression and also give a general statement of facts in support thereof as required by Fla.R.Crim.P. 3.190(h)(2). Herring v. State, 394 So.2d 433 (Fla. 3d DCA 1980) and Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983).

The motion here clearly does state the reasons for suppression and a general statement of facts in support thereof, Barker v. State, 438 So.2d 1014 (Fla. 4th DCA 1983). We, therefore, remand the matter to the trial court for a hearing in accordance herewith.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


text:
    August W. DRIESLEIN, former husband, Appellant, v. Patricia Ann DRIESLEIN, former wife, Appellee.
    No. 84-54.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Roger W. Lajoie of Sullivan, Sullivan, LaJoie & Thacker, Vero Beach, for appellant.
    No appearance by appellee.
   PER CURIAM.

This is an interlocutory appeal from an order relating to child custody brought pursuant to Rule of Appellate Procedure 9.130(3)(C)(iii). The parties were divorced in 1981. The judgment contained a provision allowing the husband reasonable visitation privileges. The initial divorce decree was uncontested but since that time the parties have found it necessary to go to court quite often regarding child custody matters and issues of contempt regarding visitation. Unfortunately, the matter has been before several different judges. The husband now appeals an order entered December 21, 1983, contending that the trial court erroneously restricted his visitation privileges. The former wife has not favored this court with a brief.

We affirm with the following cautionary comments. The order in question of December 21, 1983, maintained the husband’s visition privileges in accordance with a prior schedule entered as a result of an emergency hearing. The husband was allowed to visit on alternate weekends. The order provides that all parties are to proceed with mental health counseling and to undergo phychological evaluations concerning ability to care for and provide for the minor children of the parties. The Department of Health and Rehabilitative Services was to furnish the court with various evaluations. The hearing resulting in the order of December 21, 1983, was really only a discussion between the trial judge and the various parties. During this discussion, the parties agreed to submit to psychological evaluation and counseling. The face of the trial court’s order makes it quite clear that it is of a temporary nature and that further proceedings are to occur regarding readjustment and enlargement of the husband’s visitation privileges. Proceedings regarding child visitation and custody are continuing in nature. Trial courts possess continuing jurisdiction to effectuate a plan that will best serve the welfare of the child and the rights of the parties. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978), and Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977). The order under appeal is, at most, a temporary solution and under the circumstances, we do not conclude that the trial court has abused its discretion. The order is therefore affirmed.

AFFIRMED.

BERANEK, HERSEY and DELL, JJ., concur.


text:
    Catherine F. COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1136.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.

      Jerry Hill, Public Defender, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On August 11, 1982, the defendant entered pleas of guilty to charges in four criminal cases pending against her, bearing circuit court case numbers 82-4290, 82-4494, 82-4493, and 82-4256. In case no. 82-4493 the defendant received three years probation to run consecutively to concurrent probation periods of seven years imposed in two of the other three cases.

On March 2, 1983, an affidavit of violation of probation was filed with respect to all four cases. An order was entered revoking probation in all four cases, and in case no. 82-4493 the defendant was sentenced to ninety-nine years imprisonment on one count and fifteen years imprisonment on the other count, to run concurrently-

The defendant challenges the revocation of her probation in case no. 82-4493 on the ground that her probation in that case had not begun at the time of the conduct found to constitute a violation of probation. We agree and reverse the order to the extent that it revokes probation in case no. 82-4493. To hold otherwise would allow consecutive terms of probation to be given concurrent effect. Thomas v. State, 434 So.2d 20 (Fla. 2d DCA 1983). Further, we certify that our decision is in direct conflict with the decisions of our sister courts in State v. Stafford, 437 So.2d 232 (Fla. 5th DCA 1983), Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980), and Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).

REVERSED and REMANDED.

BOARDMAN, A.C.J., and GRIMES and DANAHY, JJ., concur.


text:
    Harvey ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1383.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, and Gerald O. Johnson, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Harvey Alexander alleges his right to counsel was violated by the trial court by accepting a purported waiver of counsel without making an adequate inquiry into the intelligent nature of his so called waiver. We • reluctantly agree and reverse.

Alexander was charged with grand theft in violation of section 812.014, Florida Statutes (1981). He.was arraigned before one judge who, after a short colloquy with Alexander, found he had waived his rights to counsel and to jury trial. Later, the matter was tried before a different judge without a jury. Alexander was found guilty as charged and sentenced to prison for two years. Neither judge made an adequate inquiry into Alexander’s purported waiver and in view of our holdings in Morgano v. State, 439 So.2d 924 (Fla. 2d DCA 1983) and Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983), we hold that both judges below failed to make a penetrating and comprehensive examination of Alexander so that they could treat his implicit waiver of the right to counsel as a knowing and intelligent one.

Therefore, we REVERSE the judgment and sentence and REMAND for a new trial.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Frederick J. BELL.
    No. 82-KA-2235.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Boudreaux, Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
    Paul deMahy, St. Martinville, for defendant-appellant.
   CALOGERO, Justice.

The state charged defendant Frederick J. Bell with three counts of forgery, in violation of La.R.S. 14:72. Following trial a six-member jury returned a unanimous verdict of guilty as charged on each count. Thereafter, the judge sentenced defendant to serve three years at hard labor on count one, five years at hard labor on count two and five years at hard labor on count three, with the sentences to run consecutively. On appeal to this Court defendant presents in two assignments of error one argument concerning the prosecutor’s reference to defendant’s post arrest silence. Upon review we find the defendant’s argument not meritorious and affirm the conviction.

The following sequence of events forms the basis for the charges in this case. On July 14, 1981, defendant presented a check at a branch of the St. Martin Bank and Trust. The check was made out to defendant as payee and bore a purported signature of one “Lorena Burke Jacquet”. Defendant told the teller that his grandmother (Mrs. Jacquet) could not come to the bank and needed money to pay for some work being done for Antoine Cormier, an interdict for whom Mrs. Jacquet was the curator. The teller cashed the check. The following day defendant cashed another check, also purportedly signed by Mrs. Jac-quet, and gave the same reason. Later that same day defendant cashed a third check, explaining that the other checks had been insufficient to pay for the work being done.

Some time later Mrs. Jacquet discovered that the account was overdrawn. She went to the bank to investigate the matter. She saw the checks, and informed the bank personnel that the signature was not hers. A comparison of the signature on the checks with that on the signature card confirmed this. The bank reimbursed Mrs. Jacquet for the amount of the checks.

ASSIGNMENTS OP ERROR NUMBERS 1 AND 4-

With' these assignments defendant contends that the trial court erred in not granting a mistrial when the prosecutor referred to defendant’s post-arrest silence.

In the course of Detective Robert A. LeBlanc’s testimony about the forgery investigation and about defendant’s arrest for the crime, the following exchange took place:.

Q. And, after he was brought to the Sheriff’s office, what did you do?
A. I asked him if he wanted to make a statement, and he refused.
Q. Did he at any time tell you his involvement in this particular matter?
A. No, sir.
BY MR. DEMAHY: Objection, Your Honor.

Defense counsel thereupon recited his objection to the state’s eliciting from the officer the information that defendant did not tell of his involvement, or make a statement concerning his involvement in the matter, noting that the officer’s answer emphasized the fact that Bell had exercised his right against self-incrimination. The court overruled the objection.

Later Bell testified in his own behalf, asserting that his grandmother had told him to get whatever Antoine Cormier needed and that Mr. Cormier had needed some food and some plumbing repairs. During cross-examination the prosecutor asked the defendant: “When you got arrested for this and Detective LeBlanc wanted to give you a chance to tell him what happened, you didn’t tell him?” Again defense counsel objected and moved for a mistrial. The judge overruled the objection. The prosecutor asked defendant whether he had explained what had taken place, to which the defendant answered, “No.”

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court was presented with the question of whether a state prosecutor may impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. Quoting the concurrence of Justice White in United States v. Hale, 422 U.S. 171 at 182-83, 95 S.Ct. 2133 at 2139, 45 L.Ed.2d 99 (1975) the Court explained:

... it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. 426 U.S. at 619, 96 S.Ct. at 2245.

Therefore the Court in Doyle held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest, and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” In so concluding, however, the Court noted at 426 U.S. 619, n. 11, 96 S.Ct. 2245, n. 11:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, (CA5 1975).

Based upon Doyle, this Court reversed a conviction when the prosecutor persistently cross-examined a defendant about his failure to tell his exculpatory story at the time of his arrest. State v. Sam, 412 So.2d 1082 (La.1982). In Sam, however, we noted the Doyle Court’s recognition that, under certain circumstances, a reference by the prosecutor to a defendant’s post-arrest silence is permissible. 412 So.2d at 1084, n. 1, quoting Doyle 426 U.S. 619, n. 11, 96 S.Ct. 2245, n. 11 and citing United States v. Fairchild.

In examining the Fairchild opinion which has been cited approvingly in both Doyle and Sam, and for the following reasons, we find that this case presents one of those circumstances when reference to the defendant’s post-arrest silence is not an impermissible violation of his Fifth Amendment rights, nor is it fundamentally unfair or a deprivation of due process under the Fourteenth Amendment.

In United States v. Fairchild, 505 F.2d 1378 (5th Cir.1975), as part of his defense to charges of receiving and concealing two stolen automobiles in violation of the Dyer Act, 18 U.S.C. § 2313, counsel had alluded to Fairchild’s active cooperation with the police, the court found, “in order to build up his client in the eyes of the jury.” 505 F.2d at 1383, n. 8. In examining the reasons for not permitting prosecutorial comment on a defendant’s post-arrest, post-Miranda silence, the court stated at 505 F.2d 1383:

Miranda established that the prosecution may not use as a part of its case in chief a criminal defendant’s silence following his arrest and warning. This evidence, even though it might be relevant and probative, is normally excluded. But it is important to note that it is excluded for the purpose of protecting certain rights of the defendant. It is not excluded so that the defendant may freely and falsely create the impression that he has cooperated with the police when, in. fact, he has not.... Assuming the law would have excluded from evidence Fairchild’s silence had he not broached the subject of cooperation, once he did broach it the bar was lowered and he discarded the shield which the law had created to protect him. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). (Emphasis provided)

The United States Fifth Circuit Court of Appeal concluded that “evidence of Fair-child’s Miranda silence was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities.” 505 F.2d 1383.

Thus we see that the Doyle proscription against referring to a defendant’s post-arrest silence is not without exceptions. Doyle itself stated that a defendant’s earlier silence may be shown to rebut a defense contention that the defendant had given an exculpatory story to the police after his arrest. In Fairchild, a defendant’s post-arrest silence was admissible to rebut a contention of active cooperation with the police when in fact the defendant had invoked his Fifth Amendment rights.

Additionally we have refused to reverse a conviction because a prosecutor referred to the defendant’s failure to sign the rights form in order to counter suggestions that the defendant’s attitude at the time of his arrest was one of nonchalance. State v. Brown, 395 So.2d 1301 (La.1981).

The case we review here is another situation in which it can be fairly said that the defendant invited the state’s inquiry into what happened in the early stages of the investigation. The state had a legitimate purpose in questioning the defendant and the investigating officer about the defendant’s arrest and defendant’s opportunity to explain what had happened. That was to rebut a defense contention that the prosecutor had failed to investigate the matter thoroughly before bringing charges against the defendant. Only coincidentally was there at the same time a prejudicial effect upon the defendant when this exploration also pointed up his post-arrest silence. The defendant himself broached the subject of a lack of investigation, which prompted the state’s attempt at refutation. The incidental consequence was that the defense lowered the bar and “discarded the [Fifth Amendment] shield which the law had created to protect him.” 505 F.2d 1383.

In his opening statement in this case, defense counsel raised the issue of the state’s failure to investigate the case before bringing forgery charges against the defendant. The following portion of defendant’s opening statement provides:

We’re going to admit Frederick Bell will get up on the witness stand to tell you that he cashed that check at St. Martin Bank. He’s not required to get up and say anything. But, we want you to hear his side of the story. He’s going to get up and say he cashed those three checks at St. Martin Bank, that he signed Lorena B. Jacquet’s name to those three checks that he cashed at St. Martin Bank. But, let me explain the situation under which it happened.

Defense counsel then presented the sequence of events from the defendant’s perspective, including his grandmother’s being out of town and having instructed him to cash the checks to care for the needs of Antoine Cormier in her absence. In concluding, defense counsel made these additional observations:

You may be asking yourself — if this is true, why have these charges been brought against Frederick Bell? Why has he been accused of forgery? I can’t answer that question for you because I didn’t accuse him. I didn’t bring the charges against him. It may be, you know — I’m not trying to say that something illegal has been done by the prosecutor. I’m not trying to chastise the prosecutor. But, people make mistakes. They don’t investigate thoroughly. Possibly that’s the situation here. I just can’t tell you why the charges were-brought, but I can tell you they were unjustly brought.

Defense counsel was clearly making reference to the state’s failure to investigate, in order to boost his client’s position in the eyes of the jury by inferring that he was unjustly, or mistakenly, charged with forgery.

In this case since defense counsel suggested to the jury that the state had failed to investigate the matter, and implied that, had it been investigated properly, the forgery charges would not have been brought against the defendant, the state was allowed to respond by asking the defendant and the investigating officers whether or not they tried to determine the defendant’s involvement by questioning him at the time of his arrest. The defendant may not tell the jury that the state’s case is the result of improper investigation without allowing the state to try to show the jury that the investigation was indeed thorough, or at least sufficiently thorough as to include inquiries of the defendant in order to get leads which might verify, or dispute, defendant’s noninvolvement.

For the foregoing reasons, defendant’s assignments of error are not meritorious.

Decree

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Apparently other charges were pending in this parish as well as in adjoining Iberia Parish which were unresolved at the time the defendant was convicted on the three forgeries. Defendant then apparently negotiated with prosecutors prior to the imposition of the forgery sentences. In St. Martin Parish, pending charges of burglary, theft and illegal possession of firearms were dropped and the defendant entered guilty pleas to simple robbery and one count of distribution of marijuana. Subsequently in Iberia Parish, the defendant pled guilty to four additional counts of distribution. On each of the foregoing counts, he received sentences of five years which sentences were to run concurrently with his forgery sentences.

      . Admittedly State v. Brown, 395 So.2d 1301 (La.1981) was decided by a split panel of justices, authored by a justice ad hoc, joined by four members of this Court with C J. Dixon and J. Lemmon concurring. However the majority's reasons for approving the prosecutor’s questions about the defendant’s refusal to sign the rights form, are similar to those supporting the Doyle exception and the Fairchild opinion.
      The line of questioning, to counter the defense's argument that defendant was nonchalant at his arrest, a factor indicating his innocence, is a reasonable balancing of evidentia-ry factors. Defense counsel, in his opening statement, had placed before the jury the defendant’s nonchalant attitude at the time of his arrest. The jury, having before it this assertion, and being likely to draw inferences therefrom favorable to the defendant, could not have been unduly prejudiced by evidence tending to show defendant had been apprised of constitutional rights which carry with them the gravity of the situation. In fairness, once the inference door had been opened by the defense, the prosecution was entitled to rebut with evidence producing a contrary inference. 392 So.2d at 1313.