author: DeCARLO, Judge.

text:
    Charles BAKER v. STATE.
    8 Div. 673.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

In November, 1974, the grand jury of Madison County indicted the appellant for first degree murder and charged him with killing Charles Burgess by stabbing him with a knife.

On March 3, 1975, the appellant was arraigned and pled not guilty and not guilty by reason of insanity. The jury was empaneled and on March 4th after hearing the evidence they found the defendant guilty of murder in the first degree and fixed his punishment at life imprisonment. The appellant gave notice of appeal and after his motion for a new trial was denied, he filed a motion for a free transcript and appointed counsel.

The facts surrounding this stabbing occurred on Saturday, October 13, 1974, at Charles and Martha Burgess’ apartment which was located in a housing project on Binford Court in Huntsville, Alabama. Doris Taylor was Charles Burgess’ cousin and on the evening of the day before the incident, she and her three children came to the Burgess’ apartment for a weekend visit. That night she asked the appellant, Baker, whom she had been dating, to take her to her home in Decatur “. . .to pick up a few things.” The appellant told her he could not take her that night because he could not get “transportation.” On the following day, Saturday, October 13th, appellant made four visits to the Burgess’ apartment. He was drinking at the time and during these visits there were discussions concerning the trip to Decatur.

Doris Taylor testified that before the appellant returned the fourth time, Charles Burgess had come home from work. She was playing cards on the dining room table with Charles and Martha Burgess when the appellant entered the room. The appellant said he wanted to take her to Decatur and when she said that she had changed her mind, he asked her to come outside. When she told the appellant she was not going outside he drew his hand back to hit her and Charles Burgess stepped between them. According to Taylor, Burgess told the appellant, “he wasn’t going to fight in his house” and at that point, appellant hit Burgess. He was holding Burgess with one hand and hitting him with the other. Burgess was knocked to the sofa and appellant was trying to choke him when Martha Burgess came from the bedroom. Taylor stated that Martha Burgess told the appellant to leave her husband alone but appellant continued hitting him. Burgess was wrestling with Baker and trying to get up from the couch. He did not have a chance to hit appellant and subsequently fell from the sofa onto the floor. The children then came into the room about that time and when Taylor looked, Burgess was on his back on the floor. According to Taylor, the appellant was standing over Burgess and while holding him down with one hand, he picked up the knife from the coffee table. Taylor did not know how many times the appellant stabbed Burgess but after he stabbed him the first time, she ran out the door. She recalled that Martha Burgess was standing nearby and was asking the appellant to leave her husband alone. Taylor did not see Martha Burgess touch the appellant. However, she admitted running out the door when the children jumped on appellant’s back.

During cross-examination, Taylor said she did not see anything in the deceased’s hands and did not see him with his hands in his pockets.

Martha Mae Burgess was the wife of the deceased and the appellant was her first cousin. She stated that the defendant came to their house to»eat almost every day at the invitation of both her and her husband. Further, she said that Doris Jean Taylor had been staying with them and that she was her husband’s cousin.

Mrs. Burgess testified that on October 12, 1974, her husband came home from work about 4:00 P.M. and that she, Taylor, and the children were playing cards at the time. She also testified that appellant came to the house about 2:30 P.M., but left and came back in about fifteen minutes. At that time the appellant told Taylor to get ready to go to Decatur and Taylor said, “okay.” Baker then left again and it was during this period that her husband came into the house. When the appellant returned he and Taylor had a quarrel and Mr. Burgess told them to go outside and not to fight in the house. Baker, at that point, went outside but in about twenty minutes returned and came to the back door. Appellant and Taylor then had another argument and he demanded that she come outside. After Taylor refused, Mrs. Burgess heard a slap. She was in her bedroom at the time and when she stepped back into the room she saw her husband getting out of the chair and heard him say: “Man, I asked you not fight in my house.” Appellant then turned and said, “nigger, that’s enough.” At that point, appellant hit Mr. Burgess and knocked him against the kitchen table. The deceased was trying to get off the table when appellant pulled him up and they fell back towards the couch. They then wrestled over the television and down on the floor. When they were on the floor, Mr. Burgess said, “man, forget it, let me up.” The appellant responded: “I’ll forget it alright . . . I’ll forget it you nigger because I’ll kill you.” Mr. Burgess again asked the appellant to let him up and the appellant said: “I’ll let you up when I kill your M. . . f. . . ass.” ■' The appellant then reached for a knife on the table and Mrs. Burgess ran over and grabbed his arms. Mrs. Burgess pleaded with the appellant not “to do it,” and appellant said: “I’m going to kill him, turn me loose. I’m going to kill the M.. . f.turn me loose.” Mr. Burgess then said: “Baby, turn him loose or he’ll hurt'you.” When she turned the appellant loose he stabbed her husband.

During cross-examination, Mrs. Burgess said that after the appellant stabbed her husband she saw him hit him in the jaw and then go out the back door. She said that he then came back and started beating her husband. Further, Mrs. Burgess recalled he left a second time and then returned and kicked her husband.

Mrs. Burgess said her husband was about five feet tall and weighed about 165 pounds and described him as a “short dumpy man.”

Connie Hill was Mrs. Burgess’ ten-year-old son by a former marriage. On the day in question he saw his father lying on the floor with the appellant hitting him. Connie said, that when the appellant took a knife from the coffee table, his mother grabbed appellant’s hand. He testified they wrestled for a short time while the appellant was sitting on his step-father. According to the witness he grabbed the appellant and was thrown back. Further, Connie said that after the stabbing, appellant continued to hit his father.

LeVon Hill was Mrs. Burgess’ eight-year-old son by a former marriage and he recalled that at the time of the stabbing he was outside playing. When he heard the “curtain fall” he went into the living room and saw the appellant sitting on top of his step-father. LeVon said that appellant hit and stabbed his father.

During cross-examination, he said that at the time of the stabbing his step-father and the appellant were “sort of rolling around and fighting on the floor.”

Rickey Martin, a police officer, recalled investigating a stabbing at Binford Court on October 12, 1974. It was approximately 4:25 P.M. when he arrived and saw Mr. Burgess, the deceased, lying on the ground behind the apartment. The victim was lying face-down and when Martin turned him over he noticed a stab wound in the chest. Later that evening Martin saw the appellant and heard Detective Curlee inform him of his constitutional rights.

During cross-examination, Martin stated that after a conversation with Detective Curlee, he went to Jim Parker’s apartment at Binford Court and found the murder weapon on the bookcase behind a Bible.

Ron Curlee was with the homicide division of the Huntsville Police Department on October 12, 1974. On that day he investigated a stabbing at Binford Court and it was during that investigation that he talked to the appellant. He stated that after the appellant was arrested he was informed of his constitutional rights.

On cross-examination Curlee said that he asked where the murder weapon was and the appellant told him that it was in “Mr. Parker’s house.” Curlee conveyed this message to another officer and after the knife was turned over to him, he gave it to Van Pruitt.

Van Pruitt was employed by the State of Alabama in the Department of Toxicology and Criminal Investigation. On October 15, 1974, Detective Curlee submitted a knife to his office. On the same day, he performed a post mortem examination of the body of Charles Burgess, the victim. Pruitt observed one stab wound in the chest which penetrated the heart to a depth of one-half inch. It was his opinion the stab wound was the cause of death.

During cross-examination, Pruitt said he did not run a blood-alcohol test on the deceased and did not examine the knife for finger prints.

After recalling Officer Curlee and Martin to establish the occasion for finding the murder weapon, the State rested its case. At that time the appellant withdrew his plea of not guilty by reason of insanity and made a motion to exclude the State’s evidence.

Counsel argued that the testimony showed a void in the time between the alleged fight and time of death. He alleged there had been no evidence that some intervening cause, as other physical infirmities, had not been the cause of death. The motion was overruled and the appellant subsequently took the stand in his own behalf.

Baker recalled the day of the incident and said that he had gone to the Burgess’ apartment in response to a request from Doris Taylor. He talked with Taylor and she wanted him to take her to Decatur. Baker told her he had to get a car and subsequently borrowed one from Billy Jones. As they prepared to leave, Jones informed him that the car did not have any insurance and that he could not let him have it. Taylor then returned to the Burgess’ apartment and Baker subsequently persuaded Joe Cochran to drive her to Decatur. Baker then went over to the Burgess’ apartment and was standing by the back door talking to Taylor when she told him she was not ready to leave. He said that he and Taylor quarreled after he entered the apartment and that Charles Burgess who was seated in a chair, got up and reached for a knife on the table. When Burgess started for the table, Baker grabbed him. According to appellant, they wrestled to a point in the living room where Charles Burgess fell to the floor on his back holding the knife. Appellant said that Martha Burgess then grabbed his hair and started pulling it. The appellant maintained that it was during this tussling that he was pushed on top of the victim. He stated that when he fell, the weight of his body caused the knife to go into Burgess. Baker testified that he then took possession of the knife and when he started out the front door, Charles Burgess was standing.

I

The only contention raised by the appellant concerns the closing arguments of the prosecution. Counsel argues that the cumulative effect of the prosecutor’s comments to which objections were interposed created an atmosphere of bias which no comments or rulings by the court could eradicate. The record in this appeal discloses the following excerpts from the closing argument of the defense counsel, Mr. Ship-man, and those of the prosecutors, Mr. Miller and Mr. Simpson. The entire list of objections made during closing argument is as follows:

“MR. SHIPMAN: Defendant rests, your Honor.
“THE COURT: State your case to the jury.
“(Whereupon, Mr. Miller addressed the jury with closing remarks, during which the following occurred:
“MR. SHIPMAN: We object to the statement that they have a duty to safeguard other colored persons lives in Binford Court, [sic]
“THE COURT: Sustained.
“(Whereupon, Mr. Miller further addressed the jury with closing remarks, following which Mr. Shipman addressed the jury with closing remarks, during which the following occurred:)
“MR. SIMPSON: If it please the Court we object to the statement by counsel whether the witness had prior husbands and whether her children were legimate [sic] or illegimate, [sic], that is irrelevant and ask Defense Counsel not to make such remarks to that in the Court.
“THE COURT: Overruled.
“(Whereupon Mr. Shipman further addressed the jury with closing remarks, during which the following occurred:)
“MR. SIMPSON: May it please the Court that is not a statement consistent with this matter, the testimony was that there were two distinct charges.
“THE COURT: Overruled.
“(Whereupon Mr. Shipman further addressed the jury with closing remarks, following which Mr. Simpson addressed the jury with closing remarks, during which the following occurred:)
“MR. SHIPMAN: We object to that line of questioning for the District Attorney to say that I told a lie, I object to that, I never said he coached the children.
“THE COURT: Well just comment on the testimony of the witnesses.
“(Whereupon, Mr. Simpson further addressed the jury in closing remarks during which the following occurred:)
“MR. SHIPMAN: We object to that, he handed me something else, I never got those statements, let the record show I never got those statements.
“THE COURT: Overruled.
“(Whereupon, Mr. Simpson further addressed the jury with closing remarks, during which the following occurred:)
“MR. SHIPMAN: We object to what the District Attorney would personally like to see in this case.
“THE COURT: Sustained.
“(Whereupon, Mr. Simpson further addressed the jury, following which the following occurred:)
“MR. SHIPMAN: We object again to what something would demand.
“THE COURT: Overruled.
“(Whereupon, Mr. Simpson further addressed the jury with closing remarks, following which the following occurred:)
“MR. SHIPMAN: We object again to what society might demand, that he stay in jail until the sun doesn’t rise, until the sea stops running, etc., whatever else he said, we object to that.
“THE COURT: Sustained.
“(Whereupon, Mr. Simpson further addressed the jury with closing remarks, during which the following occurred.)
“MR. SHIPMAN: Your Honor we object to commenting on the electric chair, it’s not in issue here.
“THE COURT: Sustained.
“(Whereupon Mr. Simpson further addressed the jury with closing remarks during which the following occurred:)
“MR. SHIPMAN: We object about the jury coming back again and being personally involved with the Defendant.
“THE COURT: Sustained.
“(Whereupon, Mr. Simpson further addressed the jury with closing remarks, following which the following occurred:)
“THE COURT: Ladies and gentlemen of the jury, let’s take a recess for five minutes. Be back in here in five minutes.
“(Whereupon, a brief recess was taken following which the following occurred:)
“COURT’S ORAL CHARGE”

Alleged prejudicial remarks by the prosecution during argument must be evaluated and determined on the merits of the individual case. Racine v. State, 290 Ala. 225, 275 So.2d 655. Further, our courts have recognized that a necessity exists for allowing the trial judge wide discretion in regulating the argument of counsel. Bullard v. State, 40 Ala.App. 641, 120 So.2d 580.

After reviewing the arguments condemned by counsel as error, we are of the opinion that the cumulative effect of the comments did not create an atmosphere of bias.

We have noted that the judge before proceeding with the trial, admonished the jury not to consider as evidence anything said by the attorneys or the court. Further, at the request of the defendant, the judge gave the following written requested charge:

“The court charges you, the jury, that you are not to consider any statement made by the District Attorney, either in opening statement nor [sic] in closing argument, as being evidence against the Defendant.”

In view of the foregoing, we believe that the precautionary measures taken by the learned judge, would have eradicated any prejudice if any existed.

As can be seen from the summary of the statements objected to in the argument that is detailed above, only three rulings were adverse to this defendant.

The first instance was as follows:

“MR. SHIPMAN: We object to that line of questioning for the District Attorney to say that I told a lie, I object to that I never said he coaxed the children.
“THE COURT: Well just comment on the testimony of the witnesses.”

In our judgment, this seems to be an expression of opinion by the prosecuting attorney and was induced by some remark made by the defense attorney during his closing argument. See: York v. State, 34 Ala.App. 188, 39 So.2d 694; and Knight v. State, 50 Ala.App. 39, 276 So.2d 624. In light of the court’s instruction that the argument of counsel should not be taken as evidence, we do not believe this was an improper comment. See: George v. State, 54 Ala.App. 90, 304 So.2d 908.

The second instance was:

“We object to that, he handed me something else, I never got those statements, let the record show that I never got those statements.”

It is apparent that this was a reply to some remark that the district attorney made and without being informed what the argument was, we can not pass on the objection. Lee v. State, 50 Ala.App. 713, 282 So.2d 333.

The last instance involving an adverse ruling to this defendant was in response to the objection:

“We object again to what something would demand.”

This could have been interposed to an admonition by the district attorney calling for law enforcement. However, since we are not informed of what the argument was, we can not pass on the objection. See: Canady v. State, 55 Ala.App. 473, 316 So.2d 720; and Lee v. State, supra.

II

We have reviewed the evidence in this case, a substantial portion of which is detailed above, and it is our opinion that it presented questions of fact for the jury. Further, such evidence was sufficient to sustain the conviction and the denial of the motion to exclude the State’s evidence, and the overruling of the motion for a new trial did not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have searched the record and did not find any error.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Dillard Wayne SUMMERS v. STATE.
    8 Div. 875.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Clement J. Cartron, III, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged Dillard Wayne Summers with the robbery of William Sam-pie by putting him in fear and taking from his person “One (1) watch, of the value of, to-wit: $75.00; One (1) money clip, of the value of, to-wit: $10.00.” The jury found the appellant “guilty as charged” and fixed punishment at ten years imprisonment. The trial court then set sentence in accordance with this verdict.

William J. Sample testified he was employed by the Venderbush Sheet Metal Company and worked out of their home office, which is located in Detroit, Michigan. Mr. Sample stated that on December 11, 1975, he was in Huntsville, Alabama on business for his company and was a registered guest at the Kings Inn Motel located on the North Parkway in Huntsville. The witness testified he was in his room taking a shower around 6:30 p. m. when he heard someone knocking at his motel room door. Mr. Sample stated that he went to the door and opened it slightly to see who his visitors were, then heard someone call the name “Bill.” The witness testified he then opened the door a little further, whereupon he saw a man standing outside his room with a knife. Mr. Sample stated that at this time he attempted to shut his door, but two men, one armed with a sawed-off shotgun and the other with a knife, forced the door open and pinned him between the wall and the door. The witness testified that one of the men placed the shotgun under his chin and threatened to “blow my head off,” then threw him “face down on the bed.” Mr. Sample stated that while one of the men would go through his belongings, the other would demand that he remain in his “face down” position by prodding him either with the knife or gun, which resulted in his sustaining a “small cut” on his left foot and a “lump” on the back of his head. Mr. Sample testified that the men took several items from his room, including the watch and money clip referred to in the indictment. The witness testified that the two men ripped the telephone connection out of the wall, told him not to inform the police “right away,” then left. Mr. Sample stated he then went to another room in the motel and called the police. The witness positively identified the appellant in court as the man with the sawed-off shotgun the night of the robbery, and stated that he had picked the appellant’s picture from among several other photographs when they were displayed to him by Detective Turner at the General Motor’s plant near Athens, Alabama, subsequent to the incident in question. Mr. Sample noted that the appellant’s skin was “very dark complected,” and thought that at the time of the robbery the appellant could possibly be “a black person of some generations removed.” Mr. Sample further testified that shortly before the appellant’s trial, he made a positive identification of the appellant in a lineup conducted in the Madison County Jail. A photograph depicting this lineup was admitted into evidence without objection.

Detective Patrick Dillaha of the Huntsville Police Department testified he conducted the initial investigation of the robbery scene on the night of December 11, 1975, and stated that he lifted several latent fingerprints from Mr. Sample’s motel room, but found none to be “identifiable.” Detective Dillaha also stated that Mr. Sample told him the night of the robbery that “the taller of the subjects [the appellant] could have been a colored male.”

Detective Howard Turner testified that subsequent to the incident in question, he went to Mr. Sample’s job site near Decatur and displayed to him five mug shots from which Mr. Sample identified the two men that perpetrated the robbery on December 11, 1975. All of the pictures which were shown to Mr. Sample during this identifying procedure were offered in evidence without objection, and the appellant’s photograph was marked “State’s Exhibit # 8.” Detective Turner testified that at the time Mr. Sample selected the appellant’s photograph, he commented only that the appellant’s face “seemed familiar to him,” but made a more definite identification of the appellant’s alleged accomplice, Greg Mel-lotte, by writing on the reverse side of Mellotte’s photograph, “This is the subject that robbed me and was holding the knife.”

After the State rested its case, the appellant made a motion for a “directed verdict” alleging “an uncommitted communication of identification” which was denied by the trial court. The appellant presented no defense and announced “Satisfied” at the conclusion of the trial judge’s oral charge to the jury.

I

During the direct examination of Mr. Sample, the State attempted to offer into evidence a sawed-off shotgun allegedly used by the appellant in the commission of this offense. The record at page 31 disclosed the following:

“Q. Mr. Sample, I show you this item marked State’s Exhibit 3 and ask you if you have ever seen that before?
“A. It’s really hard to say. I believe I have seen it before but I couldn’t honestly give you a yes or no as to it.
“MR. MORGAN: You may cross examine.
“MR. CARTRON: Your Honor, I have got a motion to make first and I think it should be made outside the presence of the jury.
“THE COURT: All right, ladies and gentlemen, would you please go to the jury room. We will take just a short recess. If you will, just go to the jury room. “(Thereupon, the jury left the courtroom and went into the jury room, at 10:25 A.M., at which time, outside the presence and hearing of the jury the following proceedings were had and done:)
“THE COURT: Okay, if you will, state your motion, Mr. Cartron.
“MR. CARTRON: The Defendant at this time would move for a mistrial cfh the basis that the proposed sawed-off shotgun is prejudicial and extremely harmful to the Defendant. There has been no identification of said weapon and we would indicate to the court that the same vain attempt was made to introduce such evidence at another trial. This, in itself, should have put the prosecution on notice that the—
“THE COURT: Well, let me ask the State this; do you intend to — well, that is correct there was an attempt to introduce the shotgun or at least the shotgun was part of another trial but the issues in that trial are different and the witnesses are different. I will ask the State though, whether or not you intend to ask this witness if he can identify this shotgun?
“MR. MORGAN: Yes, sir, this witness on his direct testimony—
“THE COURT: Was it here during the examination of him earlier?
“MR. MORGAN: No, sir.
“THE COURT: You just brought it?
“MR. CARTRON: No, Judge, he has already testified that he could not identify this particular gun.
“THE COURT: I don’t recall that testimony. I don’t believe he was presented this weapon and asked about it.
“MR. MORGAN: Yes, sir, I did.
“THE COURT: Did you do that in direct examination?
“MR. MORGAN: I sure did, I had it marked for identification.
“THE COURT: All right, I am sorry.
“MR. MORGAN: And I asked him if he had ever seen this shotgun before and could he identify it, I think was in essence what I asked.
“THE COURT: I missed that and I apologize for it.
“MR. MORGAN: And his response to that was, I think so but I can’t be positive.
“MR. CARTRON: Yes, sir, that he was not sure. ,
“THE COURT: Well, then I will ask you to put it back in the bag and we will proceed further. There will be no mistrial on that basis.
“MR. CARTRON: Can we ask the jury to disregard that portion of the testimony?
“THE COURT: I think the jury understands his testimony as that shotgun not having been identified and I think that they will take that testimony at that value that he could not identify it, and therefore it could not be considered as evidence.
“MR. CARTRON: Your Honor, the Defendant would request the Court to instruct the jury that they disregard it.
“THE COURT: That they disregard—
“MR. CARTRON: Any testimony concerning that.
“THE COURT: No, I will not instruct the jury that they disregard any testimony concerning—
“MR. CARTRON: Concerning a shotgun.
“THE COURT: Concerning a shotgun-now, what is the exhibit number?
“MR. MORGAN: Three.
“MR. CARTRON: Three.
“THE COURT: I will instruct the jury that it is not in evidence; that they are not to consider it as being in evidence or as having been identified.
“All-right, it will be just one more minute before we get started.
“(Thereupon, the jury returned to the courtroom at 10:45 A.M., at which time, in the presence and hearing of the jury, the following proceedings were had and done:)
“THE COURT: Ladies and gentlemen, before we begin cross-examination I want to caution you that State’s Exhibit 3 which is a shotgun or a weapon of some description is not in evidence and is not to be considered by you as evidence in this case and you are not to give any consideration to that at this point in this case and so I caution you to exclude that from your consideration at this point.” [R. 31-36]

Although the shotgun, marked State’s Exhibit # 3, was never allowed into evidence for the jury’s consideration, Mr. Morgan, the Assistant District Attorney, made reference to this weapon during his closing argument. The record reflects the pertinent part of his argument as follows:

“MR. MORGAN: And I showed to him a weapon of that description and I am satisfied was the weapon used—
“MR. CARTRON: We object and ask that that be excluded.
“THE COURT: Sustained.
“MR. CARTRON: And ask that the jury disregard that statement.
“THE COURT: Ladies and gentlemen, disregard the last remark by counsel. “(Thereupon, Mr. Morgan continued and concluded addressing the jury in final argument, on behalf of the State, there being no further objections made nor exceptions reserved, following which the following proceedings were had and done:)” [R! 71-72] '

The appellant contends the district attorney’s remarks concerning the “weapon used” were improper per se in that they constituted a statement of fact previously excluded from evidence and were designed solely to inflame, incite, and prejudice the minds of the jury against .the appellant.

In the instant case the trial court sustained the appellant’s objection to the alleged improper remarks to which we have above referred, and also complied with the appellant’s request for instruction to the jury to disregard them. Absent from the record is any further objection or motion made by the appellant concerning the prejudicial effect of these remarks, and thus, there being no ruling adverse to the appellant in this regard, nothing is presented for our review. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975); Simon v. State, 181 Ala. 90, 61 So. 801 (1913); Wilson v. State, 56 Ala.App. 13, 318 So.2d 753 (1975).

A careful examination of the record, as required by Title 15, Section 389, Code of Alabama 1940, reveals no reversible error. Accordingly the judgment of conviction is hereSy

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Eugene RIZZARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-120.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Richard L. Jorandby, Public Defender, and Lois J. Frankel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appeal dismissed on the authority of Jackson v. State, Fla.App.1974, 294 So.2d 114.

WALDEN, C. J., and OWEN and MAG-ER, JJ., concur.


text:
    Eugene RIZZARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-120.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1975.
   ORDERED that appellant’s October 24, 1975 Motion for Rehearing is hereby granted, and the above-styled case is now reinstated. Fla.App., 338 So.2d 537.


text:
    Eugene RIZZARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-120.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Richard L. Jorandby, Public Defender, and Lois J. Frankel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and record on appeal, rehearing having been granted, Fla.App., 338 So.2d 537, and the cause reinstated for consideration on the merits, we are of the opinion that defendant has failed to demonstrate reversible error. Accordingly, the judgment of conviction and sentence are AFFIRMED.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


author: McCAULEY, Associate Judge.

text:
    Thomas G. FREEMAN and Beverly P. Freeman, his wife, Appellants, v. Burton Dyal McINTOSH, Jr., a/k/a B. D. McIntosh, Jr., and Florence Rosena McIntosh, his wife, Appellees.
    No. 75-469.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Robert J. Pierce and Thomas G. Freeman of Freeman & Woolf oik, Altamonte Springs, for appellants.
    Thomas A. Speer of Speer & Speer, Sanford, for appellees.
   McCAULEY, Associate Judge.

This is an Appeal from a Final Judgment permanently enjoining the obstruction and deprivation of use of the South 328.7 feet of Marker Street lying north of State Road 436, Altamonte Springs, Florida, by the Appellants.

The Circuit Judge, following prevailing case law, made sufficient findings of fact supported properly by the record, and I would affirm that Final Judgment.

The City Council of Altamonte Springs correctly passed its Ordinance No. 232-73 on July 10,1973, closing, vacating and abandoning the said portion of Marker Street (a/k/a Market Street) thereby vesting title in Appellants, due to their prior ownership of adjacent platted lots to the entire 40 foot right-of-way running between lots 16 and 17, and a 20 foot right-of-way (to road center line) running along and adjacent to lots 28 through 31. Appellants thereafter erected a fence running along the outer boundaries of that portion of the right-of-way which had vested in them upon the city’s vacation of the street. A reference map included in Appellee’s Brief, and received in evidence as Plaintiff’s Exhibit No. 1, is attached to this opinion for purpose of clarification.

Ownership of the lots by both parties is not in dispute. Both parties obtained title to the lots abutting the east and west sides of the vacated street by Deeds describing platted lots in a platted sub-division. Appellee acquired title in 1949 to the lots on the east side, and Appellant acquired title in 1971 to the lots on the west side. Examination of the record and the exhibits fully support the Circuit Judge’s finding:

“That the obstructions placed by the Defendants on the south 328.7 feet of said platted street lying north of State Road 436, if permitted to remain, would have deprived the Plaintiffs and their lessees, licensees, invitees, employees, agents, servants and invited guests of the use of their private road easement on and over the south 328.7 feet of said platted street lying north of State Road 436, which right of user in said platted street is reasonably and materially beneficial to the Plaintiffs, and the loss of the use thereof by the Plaintiffs and their lessees, licensees, invitees, employees, agents, servants and invited guests would materially reduce the market value of said platted lots by twenty percent (20%), to-wit: $19,000, and would materially reduce said platted lots rental value and use value, and therefore such obstruction of said platted street was unlawful, and Plaintiffs are entitled to a permanent injunction prohibiting and restraining said Defendants, their agents, servants and employees from obstructing said south 328.7 feet of said platted street lying north of State Road 436.”

Appellants suggest that Appellees and their assigns (particularly one tenant of Ap-pellee who runs a semi-truck operation) should use the ingress and egress provided by Leonard Street, the closest intersection on the south end of Marker Street. A careful observation of Plaintiff’s Composite Exhibit No. 11, and Plaintiff’s Exhibit No. 2 (an engineer’s survey of the southern intersection of Marker Street and Leonard Street) clearly sustains the finding of obstruction and deprivation of use of Marker Street by Appellees if ingress and egress to State Road 436 is denied Appellees by the method forced upon the Appellees by the Appellants. The Appellees are entitled to free and unobstructed ingress and egress by reason of the rights acquired at the time of purchase of the platted lots, Powers v. Scobie, 60 So.2d 738 (Fla.1952):

“It is our view that the ‘intermediate’ view, referred to either as the ‘beneficial’ or as the ‘complete enjoyment’ rule, by the annotator in 7 A.L.R.2d at page 633, should be adopted in this jurisdiction. This rule is ‘that the extent of the grantee’s private right of user in streets and alleys shown on a map or plat by reference to which his conveyance was made is limited to such streets and alleys as are reasonably and materially beneficial to the grantee and of which the deprivation would reduce the value of his lot.’ 7 A.L.R.2d, Sec. 7, page 633. Adoption of this rule means, in effect, that each case must be determined on its own facts, but that, of course, the complaining party must to prevail show damage or detriment to his property.” Id. at 740.

The loss of market value is undisputed in the testimony by the two real estate appraisers. Appellees’ witnesses, Mr. White, who testified that the value of Appellees’ loss would be 30%, and Mr. Condiff, who testified the value would be $19,000 less. Furthermore, the City of Altamonte Springs’ Engineer, Mr. G. Frimmel, confirms in his testimony that it is not possible for large trucks to make a legal turn from Leonard Street into Marker Street, and vice versa. Again, Composite Exhibit No. 11 illustrates the problem.

The proposition contended by the Appellants that the damage suffered by the Appellees does not differ in kind from that suffered by the public at large and other nearby property owners, as a result of the closing of the road, is not supported by the evidence, and the finding by the Circuit Court must be supported, and the opinion of the Appellate Court should not be substituted on this Doint.

One of the tenant occupants of Ap-pellees’ lots is a heavy equipment repair operation with need to tow large equipment on Marker Street. Inability to properly turn into Leonard Street shows that, indeed, said tenants, and therefore Appellees’ damages do differ in kind from that of the general public.

Further, testimony by another tenant, Tope Brothers Fruit Company, indicates that the said tenant will suffer damages not in kind by other users by “greater use in gas by driving almost a mile extra ‘each time ingress or egress through Marker Street, as opposed to State Road 436, is necessary’ ”. . _

The Court recognizes that both the “complete enjoyment” rule, as enumerated in Powers v. Scobie case must be complemented by the proposition that a special injury, differing not only in degree, but also in kind, from the damage sustained by the community at large, must be shown. O’Dell et al. v. Walsh, 81 So.2d 554, 555 (Fla.1955); Brooks-Garison Hotel Corp. v. Sara Inv. Co., 61 So.2d 913, 915 (Fla.1952). The application of the “complete enjoyment rule” in no way diminishes this requirement. Dan Dee Corp. v. Samuels, 124 So.2d 733 (2nd D.C.A.Fla.1960), in fact, the Supreme Court in Brooks-Garison Hotel Corp., supra, after specifically discussing the “complete enjoyment” rule, went on to hold:

This court is committed to the rule that an action by an individual to enforce his right to use a public street must be based on a special and particular injury, differing not only in degree but also in kind, from that sustained by the community at large . . . ” Id. at 916.

However, considering all the applicable legal standards in light of the uncontrovert-ed evidence and clear findings of the Circuit Court, the Court finds no basis for reversal and hereby affirms the decision of the Circuit Court.

WALDEN and DOWNEY, JJ., concur.


text:
    Cornell Bernard CONLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1821.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 1976.
    Rehearing Denied Oct. 29, 1976.

      Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of robbery, conspiracy to commit robbery, and assault and battery. Three points have been raised on this appeal, one of which has merit.

From our examination of the record on appeal we conclude that the trial court erred in denying appellant’s motion for judgment of acquittal, based upon insufficiency of the evidence to prove the existence of a conspiracy to commit robbery. Appellant’s conviction of conspiracy to commit robbery is reversed.

We have considered the other points raised by this appeal and find no reversible error. Appellant’s convictions for robbery and assault and battery are affirmed.

Affirmed in part and reversed in part and remanded with instructions that appellant’s conviction and sentence of conspiracy to commit robbery be vacated.

DOWNEY and ALDERMAN, JJ., and DANAHY, PAUL W., Jr., Associate Judge, concur.

      . The Attorney General, in his brief, asserts that appellant admitted in a statement to police that he committed the conspiracy. However the record on appeal does not support this assertion. In order to maintain credibility with the court, appellate counsel should not make factual assertions not supported by the record on appeal.


author: McCORD, Judge. BOYER, Chief Judge

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, Appellant, v. Roland Edwards ADAMS, Appellee.
    No. AA-409.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.
    Rehearing Denied Nov. 15, 1976.

      Edwin E. Strickland, Tallahassee, and Enoch J. Whitney, for appellant.
    Barry L. Zisser of Zisser & Robison, Jacksonville, for appellee.
   McCORD, Judge.

Appellant, the State of Florida Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, appeals a final judgment which granted petition for writ of certiorari brought by appellee Roland Adams from an order entered by appellant denying appellee’s motion for reinstatement of his driver’s license. The final judgment directed appellant to reinstate the license.

Appellant contends that the circuit court erred by failing to dismiss appellee’s petition for certiorari upon the ground that the circuit court lacked jurisdiction. We agree. By appellant’s order of April 10, 1973, ap-pellee’s driving privilege in the State of Florida was revoked effective April 15, 1973, pursuant to § 322.27(5), Fla.Stat. (1972 Supp.), by virtue of his having been convicted of 15 moving traffic offenses within a five year period. Appellee later seeking reinstatement applied for and was granted an administrative hearing which was held on September 5,1975. Thereafter on September 17, 1975, the reviewing board of appellant denied reinstatement. Appel-lee was advised of the action of the reviewing board by a form issued by appellant on September 17, 1975, which set out the action taken by the board. Thereafter, appel-lee’s attorney corresponded with appellant inquiring as to the basis for the determination by appellant of the denial of the reinstatement. On October 28, 1975, appellee filed petition for writ of certiorari in the Circuit -Court of Duval County “seeking review of the order of revocation.”

As above stated, the order of revocation was issued on April 10, 1973. Final agency action on reinstatement occurred on September 17, 1975, when appellant’s reviewing board denied reinstatement. Fla. App. Rule 4.5c requires that application for writ of certiorari be filed in the court within 30 days from the rendition of the decision, order, judgment or decree sought to be reviewed. Appellee’s petition for writ of certiorari was not filed in the Circuit Court of Duval County until 41 days after the final decision of appellant. The time period allowed by the rule for filing the petition is jurisdictional. Powell v. Civil Service Board of Escambia County, 154 So.2d 917 (Fla.App. 1, 1963). The circuit court lacked jurisdiction to consider the case.

The trial court, in its final judgment found that the “final order” did not “include findings of fact and conclusions of law separately stated” and that there were no “concise and explicit statement of the underlying facts of record which support the findings” as is required by § 120.59, Fla.Stat. (1975), (the Administrative Procedure Act). We have heretofore ruled, in cases where the petition for certiorari was timely filed, that findings of fact based upon the evidence must be made. McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla.App. 1, 1975); Lynch-Davidson Motors, Inc. v. Calvin, 308 So.2d 197 (Fla.App. 1, 1975); Bill Kelley Chevrolet, Inc. v. Calvin, 308 So.2d 199 (Fla.App. 1, 1974). In this case, however, the court was without jurisdiction to rule upon the question.

§ 120.68, Fla.Stat. (1975), (the Administrative Procedure Act) provides in part as follows:

“(1) A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
(2) Except in matters for which judicial review by the supreme court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides.”

In apparent conflict with the above statute, § 322.31, Fla.Stat. (1975), provides as follows:

“The final orders and rulings of the department [of Highway Safety and Motor Vehicles] wherein any person is denied a license, or where such license has been cancelled, suspended or revoked, shall be reviewable in the manner and within the time provided by the Florida appellate rules only by a writ of certiorari issued by the circuit court in the county wherein such person shall reside, in the manner prescribed by the Florida appellate rules.”

The parties did not question whether or not under the above statute the circuit court had jurisdiction to entertain a petition for writ of certiorari from an order of appellant. Since we are quashing the judgment on other grounds and the point was not raised by the parties, we make no ruling thereon but will leave the question to be raised in a proper case.

Writ of certiorari is granted and final judgment is quashed.

SMITH, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially)-

I am of the view that actions of appellant misled appellee’s attorney and lulled him into a sense of security which resulted in the untimely filing now complained of. Nevertheless, the issue before us is one of jurisdiction, over which neither we nor the Circuit Court have control. I, accordingly, concur in the result reached for the reasons stated in the majority opinion.


text:
    James W. CHURCH, Appellant, v. Josephine CHURCH, Appellee.
    Nos. 75-1514, 75-1701.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Joseph Teichman, Miami, for appellant.
    Bolles, Goodwin, Ryskamp & Welcher and Jack E. Thompson, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

In these consolidated appeals petitioner, James Church, appeals those provisions of a final dissolution of marriage judgment awarding various benefits to his former wife, Josephine, and ordering him to send his adult children to college and a subsequent order directing that he pay $3,100 in attorneys’ fees.

The marriage between Josephine and James was dissolved, and the judgment recited an agreement between the parties which provided that (1) all assets owned by the parties shall be evenly divided; (2) Josephine retain exclusive use and possession of the marital domicile until such time as their youngest child moves out or vacates the premises; (3) James pay $100 per week alimony; (4) James pay the children’s college expenses and continue medical insurance coverage on them. Thereafter, upon Josephine’s motion for attorneys’ fees, an order was entered directing James to pay $3,100 of the $4,100 awarded to her attorneys. Subsequently, James filed a motion to correct the record and at a hearing the chancellor found that James had never consented to give Josephine exclusive use of the marital residence and ordered that the record be corrected to reflect this fact. These appeals from the final judgment and order on attorneys’ fees followed.

We first concerned ourselves with the interlocutory appeal from the order directing that James pay $3,100 of the $4,100 in fees awarded to Josephine’s attorneys. We find the order awarding attorneys’ fees to be void in that although the chancellor and the parties at this dissolution hearing agreed that attorneys’ fees would be allowed at a subsequent date, the final judgment failed to reserve jurisdiction with respect to this matter. Therefore, the chancellor lacked jurisdiction to enter a subsequent order awarding attorneys’ fees. See Frumkes v. Frumkes, Fla.App.1976, 328 So.2d 34.

As to the plenary appeal from the final judgment, James first contends that the chancellor erred in awarding Josephine exclusive occupancy and use of the marital residence. We find this point well taken.

All the children born of their marriage have attained the age of majority and in the absence of an agreement between the parties or of the finding of a special equity, it was error to award exclusive possession of the residence to Josephine. See Saviteer v. McAdoo, Fla.App.1975, 310 So.2d 28. This provision of the judgment is reversed.

After a review of the remaining points on appeal, we conclude no reversible error has been made to appear. Thus, the final judgment is affirmed in all other respects.

Affirmed in part, reversed in part and remanded for further proceedings not inconsistent herewith.


text:
    Roberto SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-1547, 75-1623.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Ellis S. Rubin and Eliot R. Weitzman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

These consolidated appeals are taken by Roberto Suarez, the defendant, from an order of the trial court denying a motion for relief pursuant to Rule 3.850, Fla.R.Crim.P.

Suarez was charged by indictment with murder in the first degree. He was tried by jury, found guilty of murder in the second degree, convicted of murder in the second degree and sentenced to twenty five years in the state penitentiary. On appeal to this court, his conviction was affirmed.

The thrust of the Rule 3.850 motion to vacate judgment and sentence, the subject of this appeal, is that Suarez was denied effective representation of counsel due to the failure of his trial attorney “. to call a vital Defense Witness and to secure a Police Report in connection with said witness’ testimony . . . ” This witness, contends the defendant, could have testified as to the victim’s reputation in the community as a violent person, thereby supporting a defense of self defense.

It is reflected in the record of the trial proceedings as well as in the court’s findings in the order denying the Rule 3.850 motion, that defendant Suarez had private counsel throughout the entire trial of the cause. We agree with the court’s conclusion that the allegations in the motion are not sufficient to entitle the defendant to an evidentiary hearing. Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. Swindle v. State, 202 So.2d 132 (Fla. 3rd DCA 1967); Nelson v. State, 281 So.2d 49 (Fla. 3rd DCA 1973). The record sub judice fails to demonstrate extraordinary circumstances.

In addition, as a general rule, a defendant may not contest the competency of privately retained counsel. Everett v. State, 161 So.2d 714 (Fla. 3rd DCA 1964); Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Dickenson v. State, 261 So.2d 561 (Fla. 3rd DCA 1972).

Affirmed.


author: CHARLES CARROLL, Associate Judge.

text:
    Tommy MILES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1974.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Michael Zelman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

By information, the defendant below was charged with having assaulted a named person “with a certain deadly weapon, to wit: a pistol”. On a plea bargain, he pleaded guilty to the charge and adjudication of guilt and sentence were withheld. and he was placed on probation for a designated period on certain conditions. For a violation of the probation, which occurred a short time later, his probation was revoked, a judgment of guilt of aggravated assault was entered and he was sentenced thereon to imprisonment for a period of five years, less certain jail time served. Several months thereafter the defendant moved under Rule 3.850 RCrP for relief from the judgment and sentence.

On this appeal by the defendant from an order denying his motion for relief, it is contended the trial court failed to comply with the provision of Rule 3.170(j) RCrP which required that there be a determination by the court “that there is a factual basis for the plea of guilty.”

At the hearing on the occasion of the entry of the guilty plea, the attorney for the defendant (public defender) stipulated that the facts constituted “an offense”. In response to a request by the court to submit a proffer of the facts, the assistant state attorney stated that during the course of an argument the defendant struck the victim with a pistol (in Dade County). When asked by the court if that was “about what happened”, the defendant answered: “Just about”, and when asked by the court if there was anything else he wished to say, the defendant said: “No, sir, but one thing it wasn’t a pistol”. The court asked: “What was it?”, and the defendant answered: “It was a toy”. The item was not produced, and there was no inquiry or evidence as to the character of the toy, so as to determine, from its design, size, weight, etc., whether it was a deadly weapon.

The use or involvement of a deadly weapon in an assault is an essential element of the crime of aggravated assault. Goswick v. State, Fla.1962, 143 So.2d 817; Colainni v. State, Fla.App.1971, 245 So.2d 893; Monroe v. State, Fla.App.1975, 318 So.2d 571.

A “deadly weapon” has generally been defined to be one likely to produce death or great bodily injury, and whether the weapon involved is to be classed as “deadly” is a factual question. Goswick v. State, supra, 143 So.2d 817 at 820.

When the facts submitted in this case as a predicate for the plea of guilty to the charge of aggravated assault showed an assault and battery but failed to show that a deadly weapon was involved, there was a lack of factual basis to support the defendant’s plea of guilt of the crime of aggravated assault.

Here there was no showing or evidence upon which the court could determine whether the implement or “toy” involved in the assault and battery was a deadly weapon. Under those circumstances it was improper to accept the plea of guilty of aggravated assault and to enter judgment and sentence thereon.

Moreover, unless in entering his guilty plea the defendant was aware of the legal necessity that a deadly weapon be involved, and of the legal definition of a deadly weapon by which the implement or toy should be judged, (and it was not shown he had such awareness), his guilty plea to aggravated assault, as distinguished from assault and battery, was not voluntary. Monroe v. State, supra.

In view of the difference in the severity of those crimes, and the penalties therefor, it cannot be said that the plea of guilty to aggravated assault in the absence of a showing that a deadly weapon was involved did not result in manifest injustice. This case was different from one where on entry of such a plea a defendant denies use of a weapon, when evidence was presented that a deadly weapon was involved. Compare Williams v. State, Fla.1975, 316 So.2d 267.

On authority of Kendrick v. State, Fla. App.1975, 308 So.2d 152, and Monroe v. State, supra, the cause is remanded to the circuit court for further proceedings, to conduct a noticed hearing for the purpose of determining whether the weapon used in the assault was a deadly weapon within the meaning of the law.' If it is determined by the court that the item so used was a deadly weapon, the adjudication of guilt of the defendant of the crime of aggravated assault and the sentence imposed thereon by the court shall stand and continue in effect. If it is found by the court that said item or weapon used in the assault was not a deadly weapon, the trial court shall vacate the judgment and sentence, and, at the election of the defendant, permit withdrawal of the plea of guilt of aggravated assault or treat the otherwise voluntary guilty plea as one to the lesser offense of assault and battery revealed by the shown facts, and impose sentence thereon as provided for by law.

Caused remanded with directions.


text:
    T. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 76-174.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1976.
    James G. Mahorner, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The Division of Youth Services appeals an order entered by the circuit court, juvenile division. The order in question states that T. W.:

“. . . [Sjhall be placed on probation for a period of three (3) years with a condition of that probation being that said child shall successfully complete the program at the Arthur G. Dozier School for Boys.”

Appellant attacks the order on three points. We find merit in two points. The third point becomes moot through resolution of the other two points.

First, Section 39.11(4), Florida Statutes, provides that a juvenile court shall discontinue exercising active control over a child that the court has committed to the Division of Youth Services. Therefore, a juvenile court cannot require the Division of Youth Services to place a child at a particular facility as a condition of probation. In the Interest of A.S.W., 327 So.2d 872 (Fla.2d DCA 1976); In the Interest of J. N., 279 So.2d 50 (Fla. 4th DCA 1973). Accordingly, that portion of the order which required that T.W. “successfully complete the program of the Arthur G. Dozier School for Boys” is hereby vacated.

Second, Section 39.11(2)(a), Florida Statutes, provides that a child shall be on probation until his 21st birthday unless he is sooner released on the recommendation of the Division of Youth Services or by the court on the motion of an interested party or its own motion. Further, Section 39.-11(4) provides that any commitment to the Division of Youth Services shall be for an indeterminate period of time not to exceed the child’s 21st birthday. Therefore, a juvenile court cannot specify a period of time that a child is to serve on probation. Accordingly, that portion of the order which specified that T.W.’s probation was fixed at “a period of three (3) years” is hereby vacated.

REVERSED and REMANDED.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


author: McCORD, Judge.

text:
    James Lloyd SPARKS, Appellant, v. STATE of Florida, Appellee.
    No. BB-243.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1976.
    Rehearing Denied Nov. 15, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant, James Lloyd Sparks, pled guilty to robbery. He appeals the judgment and sentence contending the court erred in accepting his guilty plea because the factual basis therefor established at the time the plea was entered revealed that he did not carry the firearm used in the robbery and did not go into the gift shop which was robbed while the robbery was taking place; that the factual basis for the plea did not show that he committed the robbery or aided and abetted in its commission.

When the plea was taken, the court asked appellant to give the facts and he stated, “I robbed Cook’s Gift Shop.” His attorney then asked him to tell the court some of the circumstances and he related that he had been traveling around from place to place looking for a job and had arrived in Panama City; that he and one Harris needed some money and didn’t have a place to stay so “we just went in and robbed the place.” On further questioning he stated that he did not go in the store; that Harris had a pistol and Harris went in with the pistol; that he received money from the robber; that “about ten minutes later they caught us at the Pancake House eating.”

Appellant contends that the information to which he pled guilty charged him with taking a .32 caliber pistol into Cook’s Gift Shop, placing Barbara Meeks in fear, and taking $200 from her custody, while the factual basis established at the time of his plea revealed that he did not carry the firearm and that he did not go into the gift shop while the robbery was being committed. This contention is without merit as it makes no difference that there may have been a variance between the charge of the information and the factual basis if the factual basis is sufficient to show that appellant aided or abetted in the commission of the robbery described in the information. § 776.011, Fla.Stat. (1973), states as follows:

“Principal in first degree. — Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.”

The factual basis which was established clearly shows that appellant and Harris were together outside the shop; that Harris went in with a pistol and robbed the shop while appellant remained outside; that the two then divided the money and went to the Pancake House where they were apprehended. Appellant finds comfort in the recent opinion of the Supreme Court of the United States in Henderson v. Morgan, - U.S. -, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). There the Supreme Court ruled that where neither defense counsel nor the trial court explained to the defendant that an intent to cause the death of his victim was an element of the offense of second-degree murder and the defendant made no factual statement or admission necessarily implying that he had such intent, his plea of guilty to a charge of second-degree murder was involuntary; and, in view of the defendant’s unusually low mental capacity, raising the possibility that the homicide was manslaughter rather than murder, the error was not harmless. In the case sub judice, however, appellant’s admissions contained sufficient factual basis that he aided and abetted in the robbery. From his statement, it appears that he knew that his companion was going in the shop with a pistol and rob it while he remained outside. It is a reasonable assumption from his statements that he counseled the robbery and remained outside as a lookout as he stated at one point, “I robbed Cook’s Gift Shop,” and at another, “we just went in and robbed the place.” When his companion emerged, they divided the money. In Henderson the Supreme Court pointed out that the United States District Court found from the evidence presented on Henderson’s petition for writ of habeas corpus that he “was not advised by counsel or court, at any time, that an intent to cause death or a design to effect the death of the victim was an essential element of Murder 2nd Degree.” The Supreme Court in reaching its conclusion that Henderson did not receive adequate notice of the offense to which he pled guilty and that therefore his plea was involuntary stated as follows:

“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent . . .”

Unlike Henderson, in the case sub judice the trial court, after hearing the factual basis, asked appellant: “Have you discussed the case fully with our lawyer Mr. Williams, including any defenses that might be available to you?” To which appellant answered, “Yes, sir.” The court then asked, “Are you satisfied with the advice and representation you have received from Mr. Williams?” To which appellant answered, “Yes, sir.” Under these circumstances, the factual basis for appellant’s guilty plea was adequately established.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    ASSOCIATES DISCOUNT CORPORATION and William A. Ingraham, Jr., Trustee, Appellants, v. John GOMES and Adeline Gomes, his wife, Appellees.
    No. 75-1629.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Jerry B. Schreiber, Miami, for appellants. Ralph M. Jones, Miami, for appellees.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Appellants seek reversal of a final judgment of foreclosure determining appellees’ mortgage to be a superior lien.

In October 1969 appellants Associates Discount Corporation and William A. Ingra-ham, Jr., Trustee had a personal final judgment recorded against John and Estella Martin. Thereafter the Martins purchased from appellees, John and Adeline Gomes, the subject real property and executed a promissory note and mortgage in their favor. Subsequently the Martins defaulted on the mortgage payments, and appellees filed a complaint to foreclose mortgage and a notice of lis pendens. While this action was pending, appellants levied upon the subject property with the October 1969 final judgment against the Martins, and on September 18, 1973 at a public sale the property was sold by the sheriff to the appellants. On November 21 a final judgment of foreclosure was entered in favor of appellees, and on December 27 a certificate of sale issued to them. Upon learning of the sheriff’s sale, appellees moved to set aside the final judgment and sale. This motion was granted, and appellees filed an amended foreclosure complaint adding appellants. Appellees filed motion for summary judgment and after a hearing, the court granted appellees’ motion on the ground that appellees’ purchase money mortgage is a superior lien to appellants’ judgment lien. Thereupon, a final judgment of foreclosure was entered in favor of appellees.

Appellants contend the trial court erred as a matter of law and fact when it upheld the priority of the purchase money mortgage. We cannot agree.

The law is well settled that purchase money mortgages generally take priority over any other prior or subsequent claims or liens attaching to the property through the mortgagor and these mortgages are recognized as being senior to the claims of dower and homestead as well as to judgment liens and mortgages on after acquired property. County of Pinellas v. Clearwater Fed. Sav. & L. Ass'n, 214 So.2d 525 (Fla.2d DCA 1968). Further, appellants’ attempt to execute on their judgment was too late as prior thereto the foreclosure action by appellants had commenced and a notice of lis pendens had been filed. Cf. Baron v. Aiello, 319 So.2d 198 (Fla.3d DCA 1975). Thus, the trial judge was eminently correct in determining that appellees’ purchase money mortgage does have priority.

Affirmed.

BARKDULL, C. J., concurs in decision.


text:
    Robert Allen BRISTOW, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1736.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.

      Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., and Roy Kahn, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant was charged with second degree murder, was arraigned and pled not guilty. A jury trial was held following which a guilty verdict was rendered and judgment entered thereon, with the appellant being sentenced to life imprisonment. This appeal followed.

The appellant and the deceased victim knew each other prior to the evening of February 23, 1975, when the appellant, in his own apartment, had a heated argument with the victim resulting in the victim’s death from blows to the head with a brick. The evidence showed that the deceased had a violent personality and was in the habit of carrying a knife with him, which he had used or threatened to use both on relatives and friends, including the appellant. The appellant argued, as the main thrust of his defense, that he was put into fear by the victim, who had come to see him concerning a reinstatement of their relationship. Appellant’s fear was based mainly upon the victim’s tapping his pocket, allegedly creating in the appellant’s mind the belief that the deceased had a knife in his pocket. In an effort to protect himself, the appellant contends that he left the room and secured a brick, thereupon returning to the room and, following further argument with the victim, struck the latter with the brick, resulting in the victim’s death from injuries to the head caused by the blunt impact of the brick.

Upon completion of the evidence and testimony, the trial judge instructed the jury on second degree murder and lesser included offenses, as well as self-defense. After it had retired for deliberation, the jury returned and requested reinstruction upon the law of assault with intent to commit murder, attempted murder and second degree murder. The court announced its decision to reinstruct upon second degree murder, third degree murder, manslaughter, excusable and justifiable homicide, assault with intent to commit murder and attempted murder. Defense counsel requested that the full self-defense instruction be reread to the jury upon reinstruction. The court denied this request and instead stated that he would give the abbreviated instruction upon self-defense contained in justifiable homicide. Over defense counsel’s objection, the trial court reinstructed the jury as he had announced. Following the reinstruction, defense counsel renewed his objection, which was overruled, the trial judge noting that he had reminded the jury of the original complete self-defense instruction by reference to it but without rereading it.

The appellant has presented three points, two of which we shall address. The first point concerns the alleged error of the trial court in denying defendant’s motions for judgment of acquittal where it is alleged that the evidence was insufficient to support a conviction for second degree murder inasmuch as the evidence raises a reasonable issue as to whether the defendant had acted in self-defense and the State did not prove the absence of action in self-defense beyond a reasonable doubt. It is appellant’s contention that he does not have to prove that he acted in self-defense, nor does he even have to satisfy the jury that self-defense was necessary. All that is needed is that evidence be presented that raises a reasonable doubt. See Lane v. State, 44 Fla. 105, 32 So. 896 (1902). Appellant asserts that the record reflects no facts that would make his defense impossible to believe. Furthermore, he argues that there were no facts presented by the State serving to impeach, discredit, or controvert his testimony as to the circumstances that led up to the victim’s death. Finally, he asserts that his version of the incident, as related through his confession and trial testimony, must be taken as true, with the trial court, therefore, being in error in denying his motions for acquittal.

Inasmuch as there was evidence presented that the victim was killed while in a sitting position and evidence to the effect that no knife was found on the victim’s person, in the room where the killing took place, or anywhere else for that matter, we believe that the trial judge was not in error in denying the motions for judgment of acquittal. We believe that the questions herein concerning the credibility of a witness and whether to accept the defendant’s defense of self-defense were properly presented by the trial court to the jury for its determination. Evaluation of testimony concerning self-defense is the function of the trier of fact. See Turner v. State, 298 So.2d 559 (Fla.3d DCA 1974). See also Payton v. State, 200 So.2d 255 (Fla.3d DCA 1967), where the court held that ordinarily the question of self-defense is one of fact to be determined by the trier of fact.

The second point that we shall address ourselves to is that concerning the alleged error of the trial court in denying defense counsel’s request for a full rein-struction of the jury as to self-defense. As has already been mentioned, the trial judge gave full instructions on self-defense, but upon the return of the jury requesting rein-struction on certain offenses, the trial judge, over the defense counsel’s objection, gave a more abbreviated instruction on self-defense, and simply reminded the jury of his prior full instruction on that subject. As support for his position, appellant relies upon the Florida Supreme Court case of Hedges v. State, 172 So.2d 824 (Fla.1965), in which the defendant was indicted for first degree murder of her paramour. The trial judge in that case initially instructed the jury on all degrees of homicide, including justifiable and excusable homicide. The jury, thereafter, requested reinstruction on the degrees of homicide. In repeating these charges, the trial judge denied defense counsel’s request to reinstruct on justifiable and excusable homicide. In reversing the lower court, the Florida Supreme Court held that the repeated charges should be complete on the subject involved and that the giving of the partial instruction failed to inform the jury fully and could lead to undue emphasis to the part given to the detriment of the part omitted. See also Stills v. State, 272 So.2d 174 (Fla.lst DCA 1973).

One of the dangers inherent in a partial instruction is the possibility of misleading the jury. It is the appellant’s argument that a partial instruction on self-defense is potentially even more misleading than no instruction at all. We note that the Hedges case stated that although it is proper for a judge to limit the repetition of charges to those requested, the repeated charges should, nonetheless, be complete on the subject involved. It would logically follow, as Hedges so held, that where a judge repeated his charges on the degrees of homicide, he should also include the definitions of justifiable and excusable homicide. To do otherwise would give rise to a strong possibility of misleading the jury. It is the State’s argument in the instant case that a separate charge on self-defense was not essential to a complete and full instruction on the degrees of homicide where the court repeated the instruction upon excusable and justifiable homicide. Under the circumstances of this case, we find ourselves in agreement with the State.

Specifically, we find two aspects of this case that distinguish it from the Hedges case. The first distinction is the difference in the judges’ responses to the requests made in the present case and in the Hedges case. Here, the request was fully complied with by the judge, whereas in Hedges, the request was not fully complied with inasmuch as the justifiable and excusable homicide charges were omitted. The relationship of the self-defense charge to the requested charges made in the present case is far different from the relationship of the omitted charges to the requested charges in the Hedges case. Secondly, we note that under a full review of the circumstances of the present case, the jury appears to have been unclear on the lesser included offenses within second degree murder, but not unclear on the issue of self-defense. It seems readily apparent that the jury was already convinced of the defendant’s guilt of some homicide offense and was simply unsure of which offense and of the law relative thereto.

In short, we find that the trial judge fully responded to the jury’s request and, in addition, instructed upon justifiable and excusable homicide. Then he reminded the jury of the original, full self-defense charges. Such action was reasonable, was not misleading and was in full compliance with the holdings of Hedges and Stills.

Affirmed.

      . The relationship between the appellant and the victim was of a homosexual nature, and the arguments that resulted in the appellant’s killing the victim concerned sexual advances by the latter to the former.

      . We also note, parentheticálly, that in addition to being put in fear, a defendant asserting the defense of self-defense must show that his life was in immediate danger and, therefore, that the killing was necessary. This, in turn, must be based on a showing that he did all he reasonably could to avoid such killing. See State v. Coles, 91 So.2d 200 (Fla.1956). The fact that the defendant, upon being put in fear, left the room, secured a brick and then returned, is hardly compatible with his defense based on self-defense.


text:
    John Murry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1764.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Rehearing Denied Nov. 4, 1976.

      Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant was charged with two counts of robbery, one count of assault with a deadly weapon, and one count of display of a firearm during the commission of a felony. One of the robbery counts was abandoned by the State, and the appellant was acquitted of assault with a deadly weapon. He was tried before the court without a jury and convicted of one count of robbery and display of a firearm during the commission of a felony. The trial court imposed one five year term of imprisonment on both convictions.

On appeal, it is argued that the trial court erred in imposing a general sentence on the charge of robbery and display of a firearm during the commission of a felony, where both charges arose out of a single transaction. The appellant relies upon Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975), for the proposition that general sentences on multiple counts are improper and, therefore, concludes that the general five year sentence is illegal under the Darden rule. See also Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Appellant argues that the proof adduced at his trial established that he was one of two men who robbed a restaurant and that he held a gun on the individuals present in the restaurant. He argues that the testimony of the alleged victim, Mary Jane Cobb, was to the effect that she allowed the two individuals to take the money from her because “they had a gun at my head.” It is, therefore, submitted that the information and the record at the trial clearly indicated that the gun displayed by the appellant was the force which was used to accomplish the robbery. Thusly, appellant contends that there was but one criminal action and, accordingly, only one sentence is proper, whereby he should have been sentenced for the robbery only. This reasoning is said to be required under the Florida Supreme Court decision of Cone v. State, 285 So.2d 12 (Fla.1973), where the defendant was charged with robbery and display of a firearm during the commission of a felony. In that case, the Florida Supreme Court held that where the information and record of the trial indicated that the two acts involved the same victim, sentence could be imposed only for the more serious crime, i. e., the robbery.

We find that the appellant’s reliance on Cone v. State is misplaced inasmuch as Cone has been overruled by implication by the holdings and reasoning of subsequent Florida Supreme Court decisions. See Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); and State v. Ray, 331 So.2d 316 (Fla.1976). See also this court’s decisions in Campbell v. State, 310 So.2d 319 (Fla.3d DCA 1975); and Swyers v. State, 334 So.2d 278 (Fla.3d DCA 1976). In the Campbell case, this court addressed the issue of whether the defendant can be separately sentenced for the crimes of rape and unlawful possession of a firearm when both charges arise out of the same transaction. We there stated: “We think that the question is fully answered in the negative by the holding and the reasoning of the Supreme Court of Florida in Estevez v. State, Fla.1975, 313 So.2d 692.” (310 So.2d 319)

A second point we must address ourselves to is a discrepancy between the transcript below and the record proper. In the transcript, the trial judge indicated his intention to impose two, concurrent, five year terms upon the appellant. However, the actual record proper, which is the formal document of the sentence, simply imposes one five year term for both crimes. It is incumbent upon us, therefore, to remand this case to the trial judge for a corrected sentence consistent with his position in the transcript.

We hereby affirm the judgment of guilt, but reverse the sentence and remand the cause to the trial court for the entry of a corrected sentence.

      . “THE COURT: . . . I’ll adjudicate the Defendant guilty, if I have not done that, and sentence him to five years in the State prison.
      * % jf: j}5
      THE COURT: I’ll sentence him to the first robbery count, and a weapon to run concurrent.
      * * * * * *
      THE COURT: If I can even do that.
      *****' *
      THE COURT: Whatever. Give him five years to run concurrent Nun[c] Pro Tunc to September 25th.”


author: GRIMES, Judge.

text:
    Thomas E. MOOREY, as Personal Representative of the Estate of Donald E. Buck, Deceased, Appellant, v. EYTCHISON & HOPPES, INC., et al., Appellees.
    No. 76-404.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1976.
    William T. Haverfield of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    R. Thomas Corbin of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellee Mobil Oil Co.
   GRIMES, Judge.

The sole issue in this case is whether the appellant’s wrongful death action against the appellee, Mobil Oil Company, is barred by the statute of limitations.

The alleged wrongful death of Donald Buck occurred on November 1, 1973. The complaint was filed against several defendants on Friday, October 31, 1975. An amended complaint naming Mobil as an additional defendant was filed on Monday, November 3,1975. The court dismissed the amended complaint with prejudice as against Mobil as being barred by the statute of limitations.

The cause of action for wrongful death accrues upon the date of the decedent’s death. Walker v. Beech Aircraft Corporation, 320 So.2d 418 (Fla.3d DCA 1975). The statute of limitations on a wrongful death action is two years. Section 95.11(4)(d), Florida Statutes. Where the last day of a limitation period falls on a Saturday, Sunday or legal holiday the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Herrero v. Black and Decker Manufacturing Company, 275 So.2d 54 (Fla.3d DCA 1973), opinion approved and certiorari discharged, 281 So.2d 18 (Fla. 1973). Therefore, if the last day of the limitations period was Saturday, November 1, 1975, the amended complaint which first named Mobil as a defendant was timely filed on Monday, November 3, 1975.

In McMillen v. Hamilton, 48 So.2d 162 (Fla. 1950), our Supreme Court held that the filing of a suit and the issuance of summons ad respondendum on October 27, 1949, was within the four-year statute of limitations for a tort which accrued on October 27,1945. The court stated that where an act is to be performed within a specified period of time, the first day of the period is excluded from the computation and the last day of the period is included.

Mobil argues that the holding of McMillen v. Hamilton, supra, was superseded in 1974 by the passage of Section 95.031, Florida Statutes, which stated in part:

“95.031 Computation of time. — Except as provided in subsection (2), s. 95.051, and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
(1) A cause of action accrues when the last element constituting the cause of action occurs.
* * * It

Mobil reasons that the legislature has now specified that the day upon which the cause of action accrues must be .considered as the first day in computing the period of limitations. Under this interpretation, the last day for filing the complaint against Mobil would have been Friday, October 31, 1975. We cannot agree with this contention.

The obvious purpose of Section 95.031, Florida Statutes (1974) was to make more precise the dates upon which various causes of action accrued. Since specific statutory circumstances under which limitations periods are tolled were being established in Section 95.051 as part of the same legislation, it was logical to include in Section 95.031 a statement that except as set forth in Section 95.051, the' time within which an action shall be begun runs from the time the cause of action accrues. Section 95.031 did not provide for a new method of computation. Specifying that the statute of limitations begins to run from the time the> cause of action accrues is nothing new because this was true when McMillen v. Hamilton, supra, was decided. In that ease the Supreme Court simply held that in computing the length of the limitations period, the date upon which the act occurred which begins the statute running is excluded.

In order to give a claimant precisely the number of years prescribed by the legislature within which to sue, one could argue that the period should be measured from the exact time of day that the act occurred which brought about the commencement of the cause of action. No doubt the practical problems inherent in this type of computation prompted the Supreme Court to opt for the well-recognized rule for computing time which excludes the first day of the period and includes the last. Cf. Fla.R.Civ.P. I.090(a).

Since the last day of the limitations period fell on November 1, 1975, which was a Saturday, the appellant had until Monday, November 3, 1975, which was not a legal holiday, within which to amend the complaint to join Mobil as a defendant.

REVERSED.

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

      . Under § 95.01, Fla.Stat. (1949) then in effect, an action was not deemed commenced until the process was delivered to the proper officer for service.

      . This statute was amended in 1975 but those changes are not pertinent to the disposition of this case.

      . Under Mobil’s interpretation of § 95.031, unless the act which precipitates the cause of action occurs immediately after midnight, the various limitation periods prescribed by law would always be reduced by a fraction of a day.


author: BOARDMAN, Acting Chief Judge.

text:
    Clifton MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-656.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1976.
    Rehearing Denied Nov. 12, 1976.
    Jack 0. Johnson, Public Defender, and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant/defendant was charged with entering without breaking with intent to commit a felony and grand larceny. He entered a plea of nolo contendere to both charges. At that time the trial judge adjudicated appellant guilty of entering without breaking and sentenced him to five years imprisonment. The judge stated that he would not pass sentence on the larceny charge. It appears from the final judgment however that appellant was adjudicated guilty on both charges and sentenced to the one five-year term for both crimes.

Appellant contends that his plea was not voluntarily made with full understanding of its significance. During the court’s colloquy with appellant to determine the voluntariness of the plea the judge misinformed him that the maximum sentence for entering without breaking was 15 years. We affirm the judgment on this charge since appellant has failed to show that he did not know the correct maximum term or to demonstrate any prejudice resulting from the misstatement. Young v. State, 327 So.2d 127 (Fla.2d DCA 1976).

We accept appellee’s suggestion that the trial court clarify its judgment and sentence on the grand larceny charge. If the trial judge intended to adjudicate appellant guilty on both charges the sentence must be apportioned between the two. Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975).

Accordingly, we affirm in part and remand in part with directions.

GRIMES and SCHEB, JJ., concur.

      . The maximum term is five years. §§ 775.082(4)(d) and 810.03, Fla.Stat. (1973).


text:
    George W. R. ESBERGER, Appellant, v. FIRST FLORIDA BUSINESS CONSULTANTS, INC., a Florida Corporation, Appellee.
    No. 76-1035.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1976.

      Larry B. Roberts and L. Scott Rawnsley, Seminole, for appellant.
    Seymour A. Gordon, of Gay & Gordon, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellee/plaintiff filed a complaint based on a contract to sell a business located in Florida. He attempted to serve appellant/defendant, who was residing in California at that time, under Sections 48.161 and 48.181, Florida Statutes. Appellant filed a motion to quash asserting therein insufficiency of process and insufficiency of service of process and to abate for lack of jurisdiction over the person. After a hearing, the trial court denied said motion. Appellant claims that the court erred in that ruling. We agree.

It is well established that Florida’s long-arm statute is to be strictly construed. Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973); Wm. E. Strasser Const. Corp. v. Linn, 97 So.2d 458 (Fla.1957). To perfect service pursuant to Sections 48.161 and 48.-181, Florida Statutes, the complaint must allege the jurisdictional requirements prescribed by the statute. Henschel-Steinau Co. v. Harry Schorr, Inc., 302 So.2d 198 (Fla. 4th DCA 1974). The plaintiff is required to allege that the cause of action arises from business activities conducted in the state and that the defendant is either a resident of a foreign state or country, a resident of Florida who subsequently becomes a nonresident, ór a resident of Florida who conceals his whereabouts. See O’Connell v. Loach, 203 So.2d 350 (Fla. 2d DCA 1967), Section 48.181, Florida Statutes. The complaint filed by appellee is silent as to the residence of appellant and does not adequately allege that the cause of action arose from business activities conducted within this state.

Accordingly, the order on appeal is

REVERSED.

GRIMES and SCHEB, JJ., concur.


text:
    Ronald Anthonio COGMON, Appellant, v. STATE of Florida, Appellee.
    No. W-266.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction of aggravated assault and possession of a weapon by a state prisoner. He contends the verdict of the jury was not unanimous, and therefore the court erred in accepting it and denying his motion for mistrial and his motion for a new trial. After the jury deliberated for one and one-half hours, the court called it back and gave it an “Allen” charge. Forty-five minutes later, the jury returned with verdicts of guilty to both charges. The defense requested that the jury be polled and the clerk proceeded to do so. When the clerk came to juror Searcy, the transcript of the trial shows the following:

“MRS. CLERK: Mrs. Searcy, was that your verdict of guilty on both counts?
JUROR SEARCY: (Shakes head negatively.) It wouldn’t agree with my conclusions, no.
THE COURT: I didn’t hear that.
JUROR SEARCY: I said that I turned in a guilty plea, but it wouldn’t agree with my conclusions if I got up and said that it was.
THE COURT: But that is the verdict you reached in the jury room?
JUROR SEARCY: Yes.
THE COURT: And that’s the verdict that has just been read here?
JUROR SEARCY: Yes.
* * * * * *
THE COURT: Mrs. Searcy?
JUROR SEARCY: Yes, sir.
THE COURT: Did I correctly understand you to say that arriving at this verdict or reaching this verdict you did bothers your conscience?
JUROR SEARCY: Yes, sir.
THE COURT: But that you still felt that was the verdict to be reached with the other members of the jury?
JUROR SEARCY: I felt like this. If the majority, five of them, would say he was guilty that there was no alternative.
THE COURT: But that you independently arrived at that verdict along with the other five members of the jury. Is that correct?
JUROR SEARCY: Well, at the end, yes, I did.”

In the above questioning of Juror Searcy by the court, it is apparent that she did not agree with the verdict but just went along with it after the “Allen” charge because she felt that she had no other alternative if five of the other jurors did not agree with her. It was not explained to her that she did not have to agree to the verdict simply because the other five jurors agreed. After stating that the verdict would not agree with her conclusions, she was asked if that was the verdict she reached in the jury room and she said yes, but it is clear that on being polled she repudiated that agreement and thereafter did not disavow the repudiation. Fla.R.Crim.P. 3.450 states as follows:

“Upon the motion of either the State or the defendant or upon its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict. If a juror dissents, the court must direct the jury be sent back for further consideration; if there be no dissent the verdict shall be entered of record and the jurors discharged.

Juror Searcy having dissented from the verdict and there having been no subsequent unanimous verdict, a mistrial should have been declared.

Reversed for a new trial.

RAWLS, Acting C. J., and SMITH, J., concur.