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- IV THE DISTRICT COURT OF APPEAL OF -THE STATE OF FLORIDA
FOURTH DISTRICT JANUARY TERM 1980
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WALTER LUPTON, NOT FINAL UNTIL TIME EXPIRES
Appellant, - - l~0 REHEARING PE7lTION
ACID, .IF FIL;=D, DISP'C~SEI3 OF. - -
v. - '
Case No. 78-2606.
PIpARTt~EI+tT 4F TIEALTII ANn RF,HABII:ITA-
TIVE SERVICES OF THE STATE OF FLORIDA
as assignee and subrogee of the -
rights of SHARON SMITH,
Appellee. -
7pinion filed February 6, 1980
Appeal from the Circuit Court for
St. Lucie County;.Philip G. Nourse,
Judge. - -
Edgar A. Brown of Lloyd & Brown,
Fort Pierce, for appellant. '
Oshorne Walker O'Quinn, Fort Pierce,
for appellee.
MOORE, J.
Defe*3ant appeals-a final judgment in a paternity action
which, inter alia, determined him to be the father of a child
born to Sharon Smith. He contends that the evidence was insuffi-.
cient to support a finding of paternity.. We reverse.
II The Department of Health and Rehabilitative Services
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i brought this action as assignee anti subrogee of the rights of
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~ Sharon Smith. During trial, Ms. Smith admitted having inter-
course with another man, in addition to the appellant, during
the riedically recognized period when conceation could have
occurred. No evidence was adduced by the Department which
elir.?inated the other man as the father, nor which pinpointed
appellant as the father. Rather, the court was left to speculate
which of the two men was the father of the child, which it may
~ not 30. Yarmark v. Strickland, 193 So.2d 212 (Fla. 3rd DCA 1966),
cert.denie3 201 So.2d 559 (Fla. 1967). Compare Roe v. ~?iacy,
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~ 363 So.2d 616 (Fla. lit DCA 1978).
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Accordingly, the final judgment is reversed. I
~s~a FEa 2s ~ i~ o i
DOWNEY, C . J . and LETTS , J . , concur . FilEO Alto~NECUMOf 0
- ST~OGER POITRA~A•
L'tEi~t %ERi:ift; t:0i}RT
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