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STATE v. SMITH

No. 80-878.

401 So.2d 1126 (1981)

STATE of Florida, Appellant, v. Larry SMITH, Appellee.

District Court of Appeal of Florida, Fifth District.

Rehearing Denied July 30, 1981.

Attorney(s) appearing for the Case

Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for appellant.

Margene Roper, Port Orange and J. Russell Hornsby of Law Offices of J. Russell Hornsby, P.A., Orlando, for appellee.

Phyllis Gelman and Joanne Schulman of the National Center on Women and Family Law, Inc., New York City, Deborah A. Sammons and Treena Kaye of Central Florida Legal Services, Inc., Sanford, for amici curiae.

FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order dismissing a count of sexual battery against appellee. The charge arose from an incident which involved appellee and his wife, the latter being the victim of the battery.

Appellee and his wife were married in 1975 and separated in 1979. On November 29, 1979, Mrs. Smith filed for divorce and on December 6, 1979, she obtained a temporary restraining order enjoining the parties from molesting, harassing...

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