author: McCORD, Chief Judge.

text:
    Elvin John ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. EE-306.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1977.

      Elvin John Robinson, in pro. per.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

This is an appeal from an order denying appellant’s motion to vacate and set aside the verdict, judgment and sentence filed under Rule of Criminal Procedure 3.850. His motion contends that he was denied effective assistance of counsel. The trial court denied appellant’s motion without an evidentiary hearing, and appellant contends such was error — that he was entitled to an evidentiary hearing. We agree and reverse.

Appellant, represented by court appointed counsel, was previously convicted of robbery, and upon appeal to this Court, the conviction was affirmed, Robinson v. State, 334 So.2d 611 (Fla. 1 DCA 1976). The af-firmance was without opinion, but the record on that appeal shows the facts to have been as follows:

Clarence M. Barnett, a 22 year old cab driver with the Safety Cab Company in Jacksonville, Florida, testified that he was robbed at gun-point by a passenger on February 8, 1975. Barnett identified appellant as the passenger.

Barnett- stated that he was driving his cab near a dog track in Jacksonville when he picked up one passenger and was then flagged down by appellant Robinson. Barnett stated that, after he dropped off his first passenger, he asked appellant where he wanted to go to which he stated appellant replied “out Blanding Boulevard.” Barnett stated that he drove some distance and then again asked appellant where he wanted to go, and appellant then named the VFW Hall as his destination. Barnett stated that he did not know the location of the VFW Hall and called his dispatcher -for directions and to inquire as to the amount of the fare. Barnett stated that the dispatcher could not give him directions to the VFW Hall and that appellant directed him. The cab driver testified that appellant told him he lost $700 or $800 at the dog track that night and was not sure he could pay the entire fare. The driver stated that he told appellant he would need some of the money and that appellant gave him approximately $4 which was the change in appellant’s pocket.

Following these events, the cab driver claimed appellant turned to him and said, “Hey, look,” and that appellant had a gun pointed at his side. The cab driver stated he replied, “Don’t kill me, I’ll give you anything just don’t kill me.” The driver stated he continued driving at approximately 45 miles an hour for about two miles further, crossing over into Clay County, when appellant then said, “Give me your money,” and the cab driver stated that he gave appellant two $20 and two $5 bills. The cab driver stated that after he drove a couple of more miles, appellant said, “Pull over right here, I’m going to kill you.” Barnett stated that he then slowed the cab down and pulled over to the shoulder of the road at which point he reached for the gun, a struggle ensued, and the gun went off firing a bullet through the ceiling of the cab. He said he hit appellant in the face with his elbow, opened the door and pushed him out of the cab. Barnett stated that appellant put one hand in his pocket, then just stood there next to the cab while Barnett drove away. Barnett drove around the block, called his dispatcher, and flagged down a police officer.

Deputy Sheriff Robert Alfred testified that he happened to be driving in that area at about 11:30 p. m. on the night of February 8, 1975, when he noticed a taxi cab’s inside light on and the driver motioning that he would like to talk to him. Alfred walked to the cab and talked with Barnett who related the events to which he testified in court. Deputy Alfred found a two shot .22 caliber derringer on the seat of the taxi cab, which was introduced into evidence. Deputy Alfred radioed for another officer, who quickly arrived on the scene, and Deputy Alfred then proceeded to look for the subject described by Barnett. Deputy Alfred saw a subject coming out of some woods (bushes) who met the description given by the cab driver, which person was appellant, and proceeded to question him. Deputy Alfred described appellant’s condition at that time as: “He has lost one shoe, he was wet, muddy and had been drinking.” This officer agreed during his testimony that appellant was quiet, passive and cooperative. This officer located appellant approximately 200-250 yards from the place he met the taxi cab driver. Immediately upon approaching appellant, appellant gave the following information to Deputy Alfred: “The information that he give me, that he had caught a cab in Jacksonville, and advised the cab driver to bring him to the VFW Club and that the cab driver had pulled a gun on him and took his money. And, he jumped out of the cab and run and the cab driver shot at him.”

Deputy Alfred stated that appellant was frisked at the scene, and a search was conducted of the surrounding area for money and appellant’s shoe, neither of which were found. No further investigation was done on this case following appellant’s arrest.

The State presented the testimony of Deputy Frank Soeffler who explained the State’s theory that the appearance of the metal surrounding the bullet hole in the ceiling of the cab indicated that it came from the direction of the passenger side of the vehicle. No scientific support for that conclusion was presented.

Appellant, testifying in his own behalf at trial, related essentially the same facts which Deputy Alfred stated were related to him by Appellant at the scene on the night in question. Appellant stated that he was a barber by trade, 32 years old and unmarried. He stated that he had taken $176 from his savings account with which to play the dogs that weekend, and went to the McDuff Dog Track on Saturday, February 8, 1975, about 6:30 p. m. and drank vodka and orange juice, consuming about eight drinks, until about 11:00. Appellant stated that he had ten winning tickets on the 11th race, winning over $200. He stated that the security guard near the front of the track told him that he should leave because he was pretty drunk and took appellant to the information booth where a cab was called for him. Appellant stated that the security guard escorted him out to the cab when it arrived and that he got in the front seat and told the driver immediately that he would like to go to the VFW Hall on Blanding. Appellant stated that during the journey he took some money out of his coat pocket and his pants pocket, looked at it, and put all of the money in his pants pocket. Approximately 15 minutes later he asked the driver how much the trip would cost, stating that he believed it would be about $7 because he had made the trip three or four times before having recently joined the VFW Hall. Appellant stated that the driver then turned on the inside light, slowed down, pulled over to the shoulder of the road, at which point appellant then asked again how much he would owe him to which the driver replied, “I want it all.” Appellant testified to these events in further detail stating:

“He said, T want it all.’ I said, ‘What are you talking about?’ He said, ‘Just lay it all in the seat.’ And, that is when he had his left hand over there pointing at me, I couldn’t really see what he had in his hand at the time because it was dark in the cab. So, I said, ‘Well, here you go.’ And, when I took my money out I just threw it down in the seat and I grabbed his hand, we scuffled for a few minutes, and the gun went off down by the floorboard. And, I jumped out of the car and I run behind the cab down the road, about 45, 50 feet. And, there is a field over on the right hand side, I went over there and squatted down in the bushes, full of bushes over there, and he pulled off. And, when he pulled off I come back out in the road, walking up the road it was two cars coming in the same direction that we had been coming from. And, I tried to flag them down and they did not stop. And, another car was coming the other direction, it was a police officer, and he stopped."

Appellant testified further that he lost one of his shoes as he was running from the cab and explained that when the gun went off in the floorboard the bullet must have ricocheted off his shoe exiting through the ceiling of the cab. Appellant said he brought this injury to the attention of the police at the jail the day following his arrest and that he was treated at the hospital on the following Monday.

After an hour and twenty minutes of pondering, the jury announced that it was deadlocked. The trial judge stated to counsel his intention to give the standard charge 2.19 for a deadlocked jury and invited any objection. There was none. After giving the standard charge, the court then made a more “informal” statement asking the jury to try to reach a verdict because, “I don’t think any jury will ever be presented with more of the facts than you have. Some jury will have to decide.” No objection was made by appellant’s counsel to the added “informal” charge.

Appellant’s motion to vacate on this appeal stated specific alleged instances where court appointed trial counsel allegedly “failed to function in a normally-competent manner” as follows:

(1) “He visited the Appellant on only two or three occasions, spanning that period from February 8, 1975, until his trial commenced on April 8, 1975, conferring with him for no longer than a total of thirty (30) minutes.”
(2) “He failed to invoke discovery procedures, and he failed to inspect and evaluate prospective evidence.”
(3) “He failed to inspect the vehicle in which the alleged crime took place to determine the direction of the bullet hole and to substantiate the fact that the bullet had exited the roof of the vehicle via a ricochet,”
(4) “cause an investigation to be made the result of which may have provided important evidence in favor of the Appellant.”
(5) “He failed to interview the security officer at the dog track who would have proven to be an important cooperative witness on behalf of the Appellant both as to the amount of money in his possession at the time of the alleged offense as well as how he happened to enter the vehicle.”
(6) “He failed to investigate the injury of the appellant and interview those persons who gave the Appellant medical attention, which such actions would have substantiated the testimony of the appellant.”
(7) “He failed to otherwise interview prospective witnesses, devote sufficient time to the case, and to subpoena prospective witnesses for the Appellant’s trial.”

The above allegations of appellant’s motions are not refuted by the trial transcript, and we find that, if proved, they make a prima facie case of lack of due process to appellant by denial of effective assistance of counsel. The case must, therefore, be remanded to the trial court for a hearing on appellant’s motion.

As to the standard to be used in determining the question, the Supreme Court in Foxworth v. State, 267 So.2d 647 (Fla.1972), stated that the principles enunciated by Federal District Judge D. L. Middlebrooks in his opinion in Foxworth v. Wainwright, 319 F.Supp. 593 (N.D.Fla.1970), are applicable on this question. We quote as follows a portion of Judge Middlebrooks’ opinion which was quoted with approval by the Supreme Court:

“ ‘Cases in this Circuit challenging the ineffective assistance of counsel are rapidly becoming legion. Following is the gauge by which this Circuit measures the claimed constitutional infraction:
‘ “The generally accepted standard by which to determine whether a defendant has been denied effective assistance of counsel has been set out in Brown v. Beto, 5 Cir., 1967, 377 F.2d 950, 957-958:
‘ “ ‘The actual standard of incompetency applied by the overwhelming majority of courts is stated as follows: Incompetency of counsel such as a denial of due process and effective representation of counsel must be such as to make the trial a farce, sham, or a mockery of justice.’ * * * This court has defined ‘effective counsel’ in terms of a ‘reasonable counsel’ standard: ‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not er-rorless counsel, and counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ McKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592.” King v. Beto, 429 F.2d 221, p. 225, 5th Cir., 1970. See also Odom v. United States, 377 F.2d 853 (5th Cir. 1967).
‘Even more recently this standard has been explained as follows:
‘ “ * * * In this regard, the standard to be observed is not whether petitioner would have fared better if his counsel had been more experienced, knowledgeable or aggressive, but rather whether the record establishes that he lacked the minimum standards of competence necessary to satisfy petitioner’s constitutional right to counsel. Bruce v. United States, 1967, 126 U.S. App.D.C. 336, 379 F.2d 113. The record does not indicate that counsel’s alleged ineffectiveness reduced the proceedings to a farce and a mockery of justice. * * * Rather, it appears from a reading of the record that despite the short time for preparation counsel for the defense rendered reasonably effective assistance under the circumstances.” Cappetta v. Wainwright, 433 F.2d 1027, p. 1029, 5th Cir., 1970.
‘Having studied the transcript and having measured the performance of petitioner’s counsel in light of the standard as set forth above, this Court finds and concludes that counsel “rendered reasonably effective assistance”; that the legal services accorded petitioner were not so poor that he did not have the opportunity to present his side of the story; and that counsel’s representation of petitioner did not render the trial a “farce or a sham.” Parenthetically it might be added that “the time which counsel spends with an accused is merely one factor to be weighed in evaluating the effectiveness of representation.” O’Neal v. Smith, 431 F.2d 646, p. 648, 5th Cir., 1970. Cappetta, supra. In this regard this Court finds that petitioner was not denied the effective assistance of counsel and concludes that this allegation is without merit.’ (319 F.Supp. 593, pp. 596-597)”

In Hawkins v. State, 184 So.2d 486 (Fla. 1 DCA 1966), this Court said:

“ . . . It is elemental that an indigent’s right to counsel necessarily incorporates the right to effective assistance of counsel and that anything less renders the ensuing trial a farcical and mockery proceeding.”

Reversed and remanded with directions that a hearing be held on appellant’s motion.

SMITH and MELVIN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Joseph Edward HALL and Richard Bruce Blalock, Appellees.
    No. GG-350.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1977.

      Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellees.
   McCORD, Chief Judge.

This interlocutory appeal is from an order suppressing evidence — a baggie of marijuana and battery jumper cables.

Police officers, while investigating the tripping of a silent burglar alarm at a filling station, found appellees working on their truck on the filling station premises where they had remained with permission of the owner following his closing of the station earlier that evening. While the officers were checking appellees’ drivers licenses for their identities and checking the building in connection with a possible burglary, appellees became belligerent and began yelling profanities at the officers in loud voices. They were arrested for breach of the peace, and one officer went over to their truck to make an inventory search of it prior to its impoundment. A door of the truck was open, and before beginning a search, the officer saw a baggie of marijuana in plain view on the floorboard. The vehicle was then completely searched, and battery jumper cables were found behind the seat. Upon the owner’s arrival at the station, he identified the jumper cables as having been taken from his station. Appel-lee contends the search was illegal — that the arrest of appellees for breach of the peace was not a legal arrest and, therefore, there was no basis for a search as an incident to it; that even if the arrest was legal, the search of the vehicle was not justified as a search incident to the arrest; that there was no justification for an inventory search.

It is unnecessary that we determine the legality of the arrest or the search as an incident to the arrest or the legality of the search as an inventory search. The officer had the right to be in the vicinity of the truck while conducting his investigation of the apparent burglary. When, before entering the vehicle, the officer saw the baggie of marijuana on the floorboard in plain view, such created probable cause to believe that the vehicle was carrying contraband. The search of the vehicle for additional contraband was then fully justified. See Sheff v. State, 329 So.2d 270 (Fla.1976); State v. Nieman, 292 So.2d 610 (Fla. 4 DCA 1974); Beck v. State, 181 So.2d 659 (Fla. 2 DCA 1966); Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

REVERSED.

BOYER and MELVIN, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Daniel Clive LYTTLE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1995.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, and Dennis J. Plews of Law Offices of Robert H. Schultz, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

In 1974 appellant was charged by information with forcible rape contrary to Section 794.01, Florida Statutes (1973). A mistrial in the first trial of the case was declared when the jurors were unable to reach a verdict. Appellant’s second trial resulted in a conviction. Appellant was adjudicated guilty and sentenced to life in prison with credit for time served. On appeal this court reversed and granted appellant a new trial. Lyttle v. State, 320 So.2d 424 (Fla.2d DCA 1975).

After appellant’s conviction in the second trial, but prior to the reversal of that conviction by this court, appellant was sentenced to three four-year prison terms for inciting to commit perjury, tampering with a state witness and concealing evidence. The sentencing judge directed that these sentences be served concurrently with the previously imposed life sentence.

Another mistrial occurred during a third trial. Appellant’s fourth trial resulted in a conviction, and he was again sentenced to life in prison. The judgment and sentence provided, “Not to receive credit for time served. Said sentence to run consecutive to sentence now serving.”

In this appeal appellant argues that it was error for the trial court to impose a consecutive life sentence upon re-conviction because it amounts to an enhancement of his previously reversed life sentence. Appellant further contends that it was error to deny him credit for time served. He relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in support of both arguments. We agree.

Whether a life sentence is concurrent or consecutive with other sentences may affect a future decision of the Parole and Probation Commission to grant or deny appellant parole. The determination that appellant’s new sentence must be served consecutively to the other three had the effect of enhancing the severity of the sentence because prior to the reversal of his original life sentence, all four sentences were concurrent. Whenever a trial judge imposes a more severe sentence upon a defendant after a new trial, the factual data upon which the increased sentence is based must affirmatively be made part of the record. North Carolina v. Pearce, supra. Since the trial judge did not articulate his reasons for imposing consecutive time, the most he could do was to impose a concurrent life sentence.

It was also error to deny appellant credit for time served. The constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully credited in imposing sentence for reconviction of the same offense. North Carolina v. Pearce, supra; cf. Section 921.161(1), Florida Statutes (1973). The fact that the sentence is for life does not diminish the requirement to allow credit for time served. Jenkins v. State, 346 So.2d 1055 (Fla.2d DCA 1977). Appellant is entitled to receive credit time since his initial incarceration. Marshall v. State, 310 So.2d 55 (Fla.2d DCA 1977).

We have examined the other issues raised by appellant in this appeal and consider them to be without merit.

We affirm appellant’s conviction but remand this case to the trial court with directions to correct appellant’s sentence by making it concurrent with his other sentences and by specifying the amount of credit time. Appellant need not be present for this purpose.

SCHEB and DANAHY, JJ., concur.


author: PER CURIAM.

text:
    Charles JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2025.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Rehearing Denied Jan. 5, 1978.
    Jack O. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and James R. Wulchak, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Iran J. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 77-419.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However we agree with appellant that there are imperfections in his sentence. The present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. We remand the case for correction of sentence, and appellant need not be present at that time.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    CITY OF TAMPA, Petitioner, v. Clara J. HAROLD, Respondent.
    No. 77-485.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.

      Henry E. Williams, Jr., City Atty., and Stann W. Givens, Asst. City Atty., Tampa, for petitioner.
    Larry L. Rardon of Hughes & Rardon, P. A., Tampa, for respondent.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

Petitioner/defendant, City of Tampa, seeks a writ of common law certiorari to review an order granting respondent/plaintiff’s discovery motion for production of certain records. We grant the writ.

By her second amended complaint respondent Clara J. Harold sued petitioner alleging a breach of a pension contract entered into by petitioner and respondent’s deceased husband, Mangle 0. Harold, a fireman employed by petitioner for more than ten years prior to his death on October 31,1974. Respondent’s complaint further alleged that all provisions of the pension contract had been performed by both her and her deceased husband and that her claim for pension benefits had been denied by petitioner.

Petitioner answered by denying respondent’s entitlement to widow’s pension benefits and by raising as an affirmative defense that respondent had caused the death of her deceased husband by unlawful homicide.

The trial of this cause was set for March 21, 1977 by joint motion of the parties. On March 3, 1977, counsel for respondent/plaintiff filed a motion seeking an order of the court requiring petitioner/defendant “to produce and to permit the Plaintiff, and/or her attorney or agent, to inspect, copy and/or photograph, each of the following documents:

“The homicide report and all other reports pertaining to Mangle O. Harold.” The only ground alleged by the motion to support discovery of these items was that they constitute or contain evidence relevant and material to matters involved in this action.

A hearing was held on March 16, 1977, which culminated in the order under review, entered on March 17, 1977 granting respondent’s motion to produce and ordering the petitioner to produce said reports on or before 9:30 a.m. Friday, March 18, 1977.

We are of the view that the order in question constitutes an abuse of the trial court’s discretion and departs from the essential requirements of the law to the irreparable harm of petitioner.

First, it is clear that police reports are not public records within the meaning of Section 119.01, Florida Statutes (1975) and thus need not be held open at all times for personal inspection by any person. Police reports are ordinarily confidential.

Further, petitioner raised its claim of privilege of confidentiality of police reports below, imposing a burden on respondent of showing that the matters she sought to discover were not in fact so privileged. We believe that respondent failed to meet her burden of showing a need for discovery of the aforesaid homicide report and other police reports, sufficient to outweigh the strong public policy reasons for keeping police reports confidential. We note that the record reflects that respondent waited until only 18 days remained prior to trial to commence her discovery by filing the aforesaid motion, which is extremely broad in its scope (“all reports”) and, further, very nonspecific as to the ground upon which said discovery was sought (“evidence relevant and material”).

In State v. Johnson; a criminal case, the supreme court held that police reports could be produced and used in evidence only in a rather restrictive sense and outlined the criteria governing such production or use. “It depends, as we have said, upon 1) being critical 2) upon a material and vital point 3) reasonably exculpatory of defendant within sound judicial discretion, and 4) after ‘in camera’ review and deletion of any improper matter.”

In light of the foregoing, it is our view that the order herein under review is much too broad in its scope and we reverse and remand. Upon remand the respondent will have the opportunity of meeting her burden of showing the requisite necessity for compromising the confidentiality of the police reports that she seeks to discover. Furthermore, if respondent meets her burden of demonstrating the necessity for production, then the trial court should conduct an in camera inspection and review of the reports so that any matters not proper or appropriate for discovery may be deleted.

In the interest of smoothing out proceedings on remand, we here parenthetically reject petitioner’s additional argument that these police reports were work product and thus privileged and not subject to discovery in any manner. Police reports which are made in routine investigation after a death, and admittedly not made with regard to the preparation for trial of any pending litigation (i.e., not made with regard to this cause), do not constitute work product.

In view whereof, we issue our writ of certiorari, reverse the order herein under review and remand for further proceedings not inconsistent herewith.

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

      . See Glow v. State, 319 So.2d 47 (Fla.2d DCA 1975).

      . See Leithauser v. Harrison, 168 So.2d 95 (Fla.2d DCA 1964).

      . Cf. Glow v. State, supra, n. 1.

      . 284 So.2d 198 (Fla.1973).

      . Id. at 201.

      . See Nationwide Insurance Company v. Monroe, 276 So.2d 547 (Fla.2d DCA 1973), cert. denied, 283 So.2d 366 (Fla.1973).


author: HOBSON, Acting Chief Judge.

text:
    SAINER CONSTRUCTORS, INC., a Florida Corporation, Appellant, v. The SCHOOL BOARD OF SARASOTA COUNTY, Florida, a Florida Corporation, for the use and benefit of Montgomery Enterprises, Inc., a Florida Corporation, and Don E. Nooe, d/b/a N & T Enterprises, Appellees.
    No. 77-548.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Rehearing Denied Dec. 30, 1977.
    Robert P. Rosin and Daryl J. Brown of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellant.
    Stephen D. Rees and Malcolm C. Riddell of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellee, The School Bd. of Sarasota County.
    F. Linton Sloan, Jr., of Sloan & Meyer, Bartow, for Don E. Nooe.
   HOBSON, Acting Chief Judge.

Appellant takes this interlocutory appeal from an order denying its motion to dismiss for failure to prosecute; Fla.R.Civ.P. 1.420(e).

The motion to dismiss was filed June 28, 1976 and alleged that the last affirmative action was on the 20th day of February, 1975, when it had served a motion to set the case for trial. The trial court assumed the motion to set the case for trial had been filed and served on that date and under the holding of City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975), denied appellant’s motion.

Appellant takes the position that its allegation that the motion to set the case for trial had been served on February 20, 1975 was an inadvertent mistake and that in truth and fact the motion had never been filed or served. In its brief the appellant argues that the last record activity was August 30, 1974. The appellee school board asserted in its brief that the motion to set the case for trial had been served on February 20,1975 and that under the case of City of Miami, supra, it was the duty of the trial court to enter an order setting the cause for trial. In view of this dispute we temporarily relinquished jurisdiction to the trial court to determine whether or not the motion to set the case for trial had actually been filed and served. We have received the trial court’s determination which found that the motion was not filed and served but that he had relied upon the appellant’s statement in its motion to dismiss that it had been. Therefore, under City of Miami, supra, he had denied the motion to dismiss.

It is now apparent from the record before us that the last activity in this cause was on August 30, 1974 and the appellant’s motion to dismiss filed on June 28, 1976 should have been granted. Therefore, we reverse the cause and remand to the trial court for the entry of a final judgment of dismissal for failure to prosecute.

GRIMES and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Lena F. HAMMETT, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Bizzy B, Inc., Respondents.
    No. 77-717.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Bruce A. Campbell, of Barrs, Melendi, Williamson & Levens, Tampa, for petitioner.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Jr., Tallahassee, for respondents.
   SCHEB, Judge.

An unemployment compensation appeals referee held that petitioner/claimant was discharged for misconduct connected with her work, and was therefore not entitled to receive unemployment benefits. Upon review, the Industrial Relations Commission affirmed. Claimant Hammett now petitions for certiorari. We grant the writ.

On June 7, 1976, petitioner/claimant Lena Hammett applied to respondent agency for unemployment compensation benefits. Her application was denied by a claims examiner on the ground that she had been terminated due to misconduct. She appealed this decision, and on July 23, 1976, the appeals referee affirmed the claims examiner’s determination.

The evidence before the appeals referee showed that petitioner began working as manager of the Bizzy B convenience store in Brandon in February of 1976. One of her responsibilities was to fill in for absent employees when no one else was available.

On the morning of Saturday, May 29, 1976, while petitioner was working the day shift with a new trainee, her area supervisor, Elida Simmons, came into the store, told petitioner that she had no one to work the night shift that night, and suggested that petitioner go home and return at 5:00 P.M. to work the night shift. Petitioner responded that she had plans for the evening that she could not cancel. She then suggested to Mrs. Simmons that the new trainee work the night shift. The supervisor was reluctant to accede to petitioner’s suggestion, however, because the trainee, although experienced in working in convenience stores, was so new to Bizzy B. After some discussion, Mrs. Simmons left the store, saying she would check on the matter and get back with petitioner. Forty-five minutes later she called petitioner to her office and fired her, telling petitioner that she “did not have her heart in Bizzy B.”

On the above facts, the appeals referee found that petitioner was discharged for misconduct connected with her work because,

although the claimant did not refuse to work, her actions and attitude during the discussion are equivalent to a refusal and tantamount to an intentional disregard of the employer’s interests.

On petition for certiorari to review administrative actions in granting or denying unemployment benefits, it becomes incumbent upon this court to determine whether there was substantial competent evidence to support the findings of the appeals referee. Florida Department of Commerce v. Dietz, 349 So.2d 1226 (Fla.2d DCA 1977); Newkirk v. Florida Industrial Commission, 142 So.2d 750 (Fla.2d DCA 1962).

Here we conclude that the evidence supports the appeals referee’s finding that petitioner did not refuse to work, but that there is no substantial competent evidence to support his finding of misconduct.

Section 443.06, Florida Statutes (1975) provides: “An individual shall be disqualified for benefits . . . [when] he has been discharged by his employing unit for misconduct connected with his work . . .” Although the Unemployment Compensation Law does not define misconduct, this court, along with the Third District, has approved the following definition:

“Misconduct” ... is limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

Fredericks v. Florida Department of Commerce, 323 So.2d 286 at 288 (Fla.2d DCA 1975); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla.3d DCA 1963).

While petitioner may have shown poor judgment in not readily acceding to her supervisor’s suggestion, we do not think her behavior amounted to “misconduct” within the meaning of the statute. In Woskoff v. Desta Enterprises, Inc., 187 So.2d 101 (Fla.3d DCA 1966), claimant was fired because she objected when her employer did not pay wages for the work day lost because of the Memorial Day holiday and persisted in what the referee termed “insubordinate” demands for such pay. The referee, as here, found that claimant’s actions were “tantamount to an intentional disregard of the employer’s interest,” 187 So.2d at 103, and disqualified her from receiving benefits. The Third District reversed, holding that claimant’s conduct, though unsatisfactory and evincing poor judgment, was not such as to constitute misconduct. If the persistent unreasonable demands of the claimant in Woskoff did not constitute misconduct, then petitioner Hammett’s single, arguably unreasonable suggestion can hardly be said to amount to the misconduct contemplated as a basis for denial of unemployment benefits.

Certiorari is granted and the decision of the Industrial Relations Commission is quashed. The cause is remanded with directions to grant petitioner’s claim for unemployment compensation benefits.

GRIMES, Acting C. J., and DANAHY, J., concur.

      . Judicial review by petition for writ of certio-rari from orders of the Industrial Relations Commission in unemployment compensation matters is provided for by § 443.07(4)(e), Fla. Stat. (1975).


text:
    Bobby Farris ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 77-801.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. However, the judgment and sentence of the court, while indicating that appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). In addition, the language ordering appellant to be confined “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: BOYER, Judge.

text:
    Betty Jo DIXON, formerly Betty Jo Moody, Appellant, v. Howard Wilson MOODY, Appellee.
    No. FF-485.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1977.

      Jerry R. Poole, of Pinkston & Poole, Jacksonville, for appellant.
    Floyd G. Yeager, Jacksonville, for appel-lee.
   BOYER, Judge.

No recitation of facts is necessary to resolve the two issues presented by this appeal nor to announce or clarify (if such be necessary) the controlling law.

Appellant first contends that the trial court erred in admitting evidence, over her objection, in a proceeding by her seeking an increase in child support payments awarded by a prior final judgment in a dissolution proceeding, as to the value of property awarded to her by that final judgment pursuant to a pre-judgment stipulation of the parties. We hold that it was and is properly within the discretion of a trial judge, when considering an award of child support or a modification thereof, to allow evidence of, and to consider, any and all assets owned by either or both parties, regardless of the source of those assets. The source from which the possessing party obtained a particular asset, and the nature of the asset (viz: whether fixed or liquid) are factors which may be considered by the trial court, and it is not error to admit evidence of the existence and possession of the asset. (For a somewhat similar holding see Birge v. Simpson, 280 So.2d 482 (Fla. 1st. DCA 1973)).

Appellant next urges that the trial court erred in the amount by which the child support was increased. Although the increase in award was, in our view, conservative, we cannot.hold, giving the order of the trial court the presumption of correctness required by law, that he abused his discretion and thereby erred.

AFFIRMED.

McCORD, C. J., and MILLS, J., concur.


author: RAWLS, Judge. BOYER, Judge,

text:
    J. B. JOHNSTON, Jr., and A. W. Magruder, Jr., Appellants, v. C. E. HAYES and Chevron Oil Company, a corporation, Appellees.
    No. DD-51.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1977.
    Rehearing Denied Dec. 29, 1977.

      John E. Venn, Jr., Tampa, for appellants. William D. Ryals of Dell, Graham, Will-cox, Barber, Ryals & Henderson, Gaines-ville, and John U. Thompson, Pensacola, for appellees.
   RAWLS, Judge.

A deed prepared by appellants conveyed the following described interest in oil and gas royalties to them, viz:

“ . . . Description of property owned by C. E. Hayes, Jay, Florida. Tract No. 1
Begin at a point 910.2 feet North of the SW corner of Lot One (1) of Section Forty (40), (E. H. Holmes Donation); thence South sixty-one degrees and twenty-seven minutes East two hundred ninety-eight (298) feet; thence South twenty-eight degrees and thirty-three minutes West forty four (44) feet; thence East one hundred (100) feet; thence South one hundred fifty-one (151) feet; thence North Eighty-six degrees and twenty-five minutes East three hundred ten (310) feet to West line of old Pollard Road; thence along West boundary line of Pollard Road North thirty-one degrees and twenty-five minutes East Four hundred thirty-five and five tenths (435.5) feet; thence North thirty-four degrees and forty minutes East five fundred [sic] seventy-two (572) feet to cemetery; thence North fifty-three degrees and fifty-five minutes West one hundred seventy-eight (178) feet; thence North nineteen degrees and twenty five minutes East; three hundred thirteen (313) feet; thence South seventy degrees and fifteen minutes East two hundred fifty-one and five tenths (251.5) feet to West line of Pollard Road; thence North twenty-five degrees and forty minutes East six hundred and fifty-two (652) feet; thence North forty-nine degrees and five minutes West four hundred seventy five feet to North line of Lot two (2); thence West one thousand three hundred seventy-seven and three tenths (1,377.3) feet to Northwest corner of Lot One (1); thence South one thousand seven hundred twenty-nine and seven tenths (1,729.7) feet to point of beginning, containing fifty-four and five tenths (54.5) acres, more or less and being in Lots One (1) and Two (2) of Section Forty (40), (E. H. Holmes Donation) Township Five (5) North, Range Twenty-nine (29) West as recorded in Deed Book ‘Q’ page 152 of Santa Rosa County, Florida records.
Less a parcel or tract sold and conveyed unto Mrs. Pansey Owens described as follows to-wit:
Beginning at a point five hundred seventy-six and eight tenths feet (576.8) North of the SW corner of Lot One (1), of Section Forty (40), (E. H. Holmes Donation); thence North eighty-six degrees and twenty-five minutes East Three hundred ninety-nine (399) feet for point of beginning; thence North one hundred thirty-nine (139) feet and corner; thence in a Northwesterly direction a distance of One hundred fifty-two (152) feet to the Northeast corner of the O. C. Hawsey tract and corner; thence South twenty-eight degrees and thirty-three minutes West forty-four (44) feet and corner; thence East one hundred (100) feet and corner; thence South one hundred fifty-one (151) feet and corner; thence North eight-six degrees and twenty-five minutes East sixty-one (61) feet back to point of beginning, said deed recorded in Deed Book A-63, at page 68-70.

Tract No. 2

Commencing at a point 100 rods East of the Northeast corner of Section 19, Township 5 North, Range Twenty-nine West; thence up the Milton & Pollard public road in a Northeasterly direction Nine Hundred Ninety Four (994) yards to corner stob on said public road at the NE corner of lot owned by Sarah Aarons and starting point; thence due West Ninety Six (96) yards to Western corner of lot owned by Sarah Aarons and corner, thence in a northwesterly direction One Hundred Seventeen (117) yards and corner, thence along Northerly boundary line of said tract 330 yards and corner, thence down Brewton and Jay public road in a Southwesternly (sic] direction One Hundred Seventy (170) yards and starting point containing 7 acres more or less. ALSO commencing at the Southwest corner of Lot eight (8) of the E. H. Holmes Grant, Township 5 North, Range 29 West; thence due East on Southern boundary line of Lots seven and eight (7 & 8) of said grant Seven Hundred Forty One (741) yards to center of Jay & Pollard public road and corner, thence up said public road one hundred ten (110) yards and corner, thence West parallel with the said Southern boundry [sic] line of lots seven and eight (7 & 8) Seven Hundred fifty (750) yards to Western boundry [sic] line of said lot eight (8) thence South on said boundry [sic] line 110 yards to place of beginning, containing seventeen acres more or less.

Tract No. 3

Beginning at a point five hundred seven-six and eight tenths feet (576.8) North of Southwest corner of Lot one (1) of Section Forty (40) E. H. Holmes Donation, thence North eighty-six degrees and twenty-five minutes, East three hundred ninety-nine feet (399) thence North one hundred thirty-nine feet (139), thence in a Northwesternly [sic] direction a distance of one hundred fifty-two feet (152), to the Northeast corner of the O. C. Hawsey tract and starting point; thence in a Northern direction ninety (90) feet and corner thence in a Westernly [sic] direction three hundred forty-nine (349) feet to East side of Farmer State Market Highway and corner, thence in a South-ernly [sic] direction down East side of said highway Ninety (90) feet and corner, thence in a Easternly [sic] direction along Northern line of O. C. Hawsey tract three hundred (300) feet to place of beginning, containing .67 acres more or less. It is the intention of the Grantor to convey and the Grantee to receive twenty full royalty acres out of the above described property, (emphasis supplied) Sign here for description:
/s/ C. E. Haves
The royalty interests and rights herein sold, transferred and conveyed are:
(a) 20/80 of Vsth of the whole of any oil, gas or other minerals, except sulphur, on and under and to be produced from said lands; delivery of said royalties to be made to the purchaser herein in the same manner as is provided for the delivery of royalties by any present or future mineral lease affecting said lands. . . .” (emphasis supplied)

In reviewing the foregoing conflicting paragraphs of the instrument, the trial judge held, as a matter of law, that the latter paragraph prevailed.

As reflected in their depositions, appellants (grantees) are sophisticated dealers in oil and gas mineral rights. Appellant Ma-gruder, an experienced oil attorney, testified that the description “was an ambiguity on the face of it, a small one but still an ambiguity.” If the foregoing descriptions defined an 80-acre parcel, the variance in the language would be of no import. However, if the parcel is less than 80 acres, the “twenty full royalty acres” description would vest unto the grantees a larger percentage of the lease. If the subject description defined a parcel greater than 80 acres and the latter conveyance of ““/so of Vsth” of the whole of any oil produced from said lands was applied, more than “twenty full royalty acres” in the lease would have vested in the grantees. The amount conveyed is patently ambiguous.

Ambiguities in a deed are construed against the party choosing the words. The primary consideration in the construction of a deed is ascertaining the intention of the parties from an examination of the whole instrument. As already observed, the intention of the parties cannot be ascertained from the language chosen by these grantees which states, in effect, if less than 80 acres, we receive more than 20 royalty acres — if more than 80 acres, we receive more than 20 royalty acres. Stated another way, the grantees chose language that is better communicated through the colloquial expression: Heads we win; tails you lose. Therefore, this deed presents a case where the variant descriptions were inserted by the grantees for their benefit, and thus the grantees must suffer the result of having such language construed against them.

AFFIRMED.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I take no issue with the principles of law recited in the majority opinion nor in the result reached. I do, however, disagree with the path followed to reach that result. The judgment here appealed is a summary final judgment which was entered on conflicting issues of material fact. On motion for summary judgment issues of material fact may not be resolved by the trial judge hearing the motion. (Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975) and cases therein cited; Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), filed September 8, 1977, not yet reported) I would therefore reverse for a trial on the merits.

      . Although not named an appellant, the trial court entered a “stipulated order” reciting that Lee McCormick “at all times material to the issues in this case” was the owner of an undivided one-third interest in the subject royalty interest. McCormick, the scrivener of the deed, testified on deposition that he had 30 years experience in the “oil business.”

      . Magruder, after graduating from University of Mississippi School of Law, was employed by Carter Oil Company which was merged with Humble Oil Co.; he worked with them as an attorney in Arkansas, Louisiana and Mississippi for four years. In 1961, he opened his private practice and “because of my experience with an oil company my clients immediately became oil clients and, of course, I worked various Alabama, Mississippi and some other areas checking titles and, of course, I purchased interests of my own.”

      . West Yellow Pine Co. v. Sinclair, 83 Fla. 119, 90 So. 828 (1922).


author: RAWLS, Acting Chief Judge.

text:
    Craig HORNSBY, Appellant, v. STATE of Florida, Appellee.
    No. EE-164.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1977.

      Joseph A. St. Ana, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Albritton, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

By an amended information filed May 23, 1975, Hornsby was charged in Count I with entering without breaking with intent to commit a misdemeanor, to-wit: petit larceny, contrary to F.S. 810.03; in Count II with possession of more than five grams of cannabis; and in Count III with conspiracy to commit the felony of entering without breaking with intent to commit petit larceny. Hornsby was charged with having committed the offenses on July 3,1974. On October 29, 1976, after a trial by jury, Hornsby was found guilty of the lesser included offense of trespassing as to Count I and not guilty as to Counts II and III.

As grounds for reversal, Hornsby argues that: 1) he was convicted of a crime that he was not charged with committing, and 2) his failure to object to the jury instruction on the crime for which he was convicted does not now prevent him from raising the issue on appeal, because the error complained of is fundamental.

In 1974, the legislature enacted the Florida Criminal Code which became effective July 1, 1975. This legislation, inter alia created Section 810.08, Florida Statutes (1975), “Trespass in Structure or Conveyance”, which provides, in part: “A person trespasses if he wilfully enters any structure or conveyance of another without being authorized, licensed, or invited.” The offense is a misdemeanor of the second degree, unless the trespasser is armed or the structure or conveyance is occupied by a human being in which case the offense is a first degree misdemeanor. Chapter 810, Florida Statutes (1975), covers the general area of the offenses of burglary and trespass; however, prior to July 1, 1975, the effective date of the Florida Criminal Code, there was no mention of trespass in Chapter 810, Florida Statutes (1973), which was titled simply “Burglary”. Rather, trespass, or “malicious” trespass, which is apparently the offense Hornsby was convicted of, was to be found in Chapter 821, Florida Statutes (1973), which was entitled “Trespass and Injury to Realty and Similar Offenses” and which described numerous trespasses to realty, the majority of which related to the taking of wildlife, timber and farm and grove products from the property of another without his permission. The only subsection of Chapter 821 remotely applicable to the actions of Hornsby is Section 821.18, Florida Statutes (1973), which provided:

“Other trespasses. — -Every trespass upon the property of another, committed with a malicious and mischievous intent, the punishment of which is not specially provided for, shall be guilty of a misdemean- or of the second degree . . . .” (emphasis supplied)

Section 821.18, Florida Statutes (1973), along with the remainder of Chapter 821, was repealed by the Florida Criminal Code effective July 1, 1975.

The major crime that Hornsby was charged by information with having committed is found in Section 810.03, Florida Statutes (1973):

“Entering without breaking. — Whoever enters without breaking any dwelling house, or any of the buildings or structures mentioned in §§ 810.01 and 810.02 . shall be guilty of a felony of the third degree . . . .”

Section 810.03, Florida Statutes (1973), was repealed on July 1, 1975, and its proscribed offense was incorporated in the definition of “burglary” (Section 810.02, Fla.Stat. [1975]).

Thus, on the date of Hornsby’s trial in October, 1976, for offenses charged to have been committed on July 3, 1974, Section 810.03, Florida Statutes (1973), had been repealed for more than a year as well as Section 821.18, Florida Statutes (1973), which proscribed “other trespasses” to realty.

At trial, the court instructed on trespass as follows:

“Now, I neglected to instruct you as to one other lesser included offense. Within the general crime of entering without breaking it necessarily includes within it trespass. Now, let me instruct you as to the law of trespass.
“It is a crime of trespass to a structure for any person to wilfully enter any structure without being authorized, licensed, or invited by the owner or occupant. Now, the essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that, one, Craig Hornsby did enter the structure described in this information; that such structure was owned by the Clerk of the Circuit Court or the County Commissioners of Leon County; that such entry was without the permission, express or implied, by the Clerk of the Circuit Court or the County Commission of Leon County and that such entry was wilful.”

Not only did defense counsel not object to the above instruction, but he specifically approved all the instructions given when questioned by the trial court.

When a statute makes the criminality of an act depend on the intent with which it was committed, criminal intent must be alleged in the accusation and proved at trial. In Sheffield v. State, 90 So.2d 449 (Fla.1956), the Supreme Court addressed this issue, viz:

“Section 590.28, Florida Statutes 1955, F.S.A., by its terms expressly requires a specific criminal intent to damage or destroy property of another. It further provides that such intent must be engendered ‘by malice or spite or by the hope of material gain or employment to be derived either directly or indirectly’. No such specific intent is alleged or proved in the instant case.”

See also Harris v. State, 93 So.2d 725 (Fla. 1957).

Here, the only criminal trespass applicable at the time of Hornsby’s offense was found in Section 821.18, Florida Statutes (1973). Further, this section specifically provided that the trespass upon the property of another be committed with a malicious and mischievous intent”. Malicious and mischievous intent was neither alleged in the charging information nor proved at trial.

The state argues that since Hornsby did not object to the trespass instruction as given by the trial court, he has not preserved the right to argue this point on appeal. The state’s position must be rejected for the reasons stated in Haley v. State, 315 So.2d 525 (Fla. 2nd DCA 1975), viz:

“The state argues that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not charged in the informations. This is fundamental error. . . . ”

The judgment appealed is reversed with directions that Hornsby be discharged.

BOYER and SMITH, JJ., concur.

      . The instruction on trespass, which was read to Hornsby’s jury, is substantially similar to the standard jury instruction corresponding to Section 810.08, Fla.Stat. (1975). This instruction was approved for use and publication by the Florida Supreme Court in In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, Case No. 48,-491, opinion filed February 4, 1976. It is noted that the previous set of Standard Jury Instructions approved May 27, 1970, did not contain an instruction which corresponded to Section 821.18, Fla.Stat. (1973), although it did contain an instruction on malice which was to be used only when trespass with malice was charged in the information or indictment and which, additionally, was only applicable to Section 821.28, Fla.Stat. (1973), which prescribed the penalties for injuring flowers, removing natural products, or molesting game or fish on the property of state institutions.


text:
    John Charles HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. FF-216.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1977.
    Frank E. Sheffield, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Five points have been presented on this appeal from a final judgment by which appellant was adjudicated guilty of second degree murder and use of a firearm in the commission of a felony in accordance with a jury verdict finding him guilty of those crimes.

Although well briefed and argued we find each point to be without merit. While not frivolous, none of the points are novel and each has been sufficiently addressed by prior opinions of this and the other appellate courts of Florida. Accordingly, no useful purpose will be accomplished by repetition here.

Finding that appellant has failed to demonstrate reversible error the judgment and sentence are

AFFIRMED.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Roosevelt TURNER et al., Appellants, v. ADOPTION OF Kashi Madora Huggins TURNER, Appellee.
    No. FF-238.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1977.

      J. David Holder of Barrett, Boyd & Holder, Tallahassee, for appellants.
    Robert F. Williams and Joyce Davis, Tallahassee, for appellee.
   McCORD, Chief Judge.

This appeal is from a final order denying the petition of appellants, Roosevelt and Louisa Turner, for adoption of their minor granddaughter, Kashi Madora Huggins. Kashi was born in May, 1973, to appellants’ deceased daughter Jerry Dean Turner Huggins and appellee John Huggins. During a period when appellee and his wife, Jerry, were estranged, she and one Theodore Rollins were murdered by appellee. At the time of the murder, appellee was on probation after having been charged with assault to commit murder in the first degree upon his wife and having pled nolo contendere to the lesser offense of breaking and entering with intent to commit a misdemeanor. Following the murder of his wife and Rollins, appellee was charged with first degree murder of each of them. He subsequently pled guilty to second degree murder of each of them, and on April 14, 1975, he was adjudged guilty and sentenced to two consecutive sentences of life imprisonment.

Since her birth, Kashi has lived in the home of appellants. On September 2, 1975, over appellee’s protest, letters of guardianship were issued by the court to appellant Roosevelt Turner to act as guardian of the person and property of the minor child. Subsequently, on June 21, 1976, appellants petitioned for adoption of the child. Appel-lee was transported from the state prison to the hearing on the petition. He did not consent to the adoption and opposed it. In its final order, the trial court found from the evidence that there had not been a legal abandonment as required by § 63.062 and § 63.072, Florida Statutes; that termination of parental rights by adoption may only be done over the objection of a natural parent when there is a showing by clear and convincing evidence of complete abandonment. Citing this Court’s opinion in Harden v. Thomas, 329 So.2d 389 (Fla. 1 DCA 1976), the trial court further found that imprisonment of a natural parent for a lifetime sentence does not constitute abandonment, as a matter of law, of a natural child.

Subsequently, after hearing appellant’s motion for rehearing, the trial court denied same finding: “that the petitioners’ motion for rehearing be and the same is hereby reluctantly denied.” It is significant that the trial judge made the following statements on the record at the hearing on petition for rehearing upon being presented with a report of investigation of the Department of Health and Rehabilitative Services:

“Well, I suspect that you have concluded that the Turner home is a fine home to raise a youngster. And I have no doubt in my mind but that that’s true. If there was any way that I could ignore the law, I would do so.
Let me for the benefit of Mr. and Mrs. Turner say that this has been one of the hardest decisions that I have had to make since I have sat in this position. I concluded that the law that should govern my decision in this matter was whether or not that there was a case of parental abandonment, abandonment by the father. And the cases seem to tell us that the fact of incarceration alone does not constitute abandonment. That was a hard decision and if there was any way I could have conscientiously ruled otherwise, I would have done so.
Mr. Holder, I will let you say whatever it is you want to tell me . . .if you can tell me that abandonment and can show me some cases that abandonment is not the issue — in other words, if I was going to consider what was in the best interest of that child, I would give her to Mr. and Mrs. Turner immediately. My inclination all along was to give Mr. and Mrs. Turner this youngster.
If there were any way that I could conscientiously say that there has been abandonment, I would. But, I just don’t feel — I didn’t feel — that my conscience would permit me to do that. That was a hard decision for me to make because I know that this young lady’s report says that you have got a fine household. And I have never doubted that. I guess I was trying to buy some time to make my decision when I asked for this report or perhaps at that time I thought that that was the most important factor to consider. And as far as I am concerned, it is what is in the best interest of the child. But the law says there has got to be abandonment. And incarceration or being in jail alone does not constitute abandonment.
I know how he got into jail. And if there were a wajr that I could conscientiously give you the adoption of this child, I would do it in a minute.
* £ tit sfc
If there was a way that I could do it, I would do it right now. I would reverse myself right now if I were not convinced that the law says that abandonment is what I have got to look at and not what’s in the best interest of the child.
Because I would find for the record right this minute that this child will be much better served in the home of Mr. and Mrs. Turner, that that is unquestionably what is in the best interest of the child.
Sfc * !}! Jf! ij{ #
And if it were within my power to ignore the law, you would be the adopted parents of the youngster, too. But, I just don’t think that I can. I hope you will understand. I know this has been a very trying experience for the both of you. But, I hope you will understand the position that I have found myself in, wanting to do one thing but not being able to do it under the law.”

It is undisputed in the record that the child has lived in the appellants’ home since she was born; and since his imprisonment, appellee has never sent her a card, written her a letter, sent her a gift, called her on the telephone, made requests to see the child, or made requests to have the child brought to prison to see him. He testified that he has not communicated with the child because of appellants’ bitterness toward him; that he has inquired of friends about the child. We have no disagreement with the trial court’s finding that the record must show abandonment by a parent who does not consent to the adoption. See Durden v. Henry, 343 So.2d 1361 (Fla. 1 DCA 1977); In re: Adoption of Lewis, 340 So.2d 126 (Fla. 1 DCA 1976). We disagree, however, with the trial court’s finding that abandonment by the child’s father has not been shown by this record. Regardless of the father’s stated reason for not attempting to communicate with the child, the fact remains, and it is undisputed, that he has not attempted to communicate with the child in any way. In Harden v. Thomas, 329 So.2d 389 (Fla. 1 DCA 1976) — the case relied upon by the trial judge in denying this petition for adoption — we stated:

“We hold that the imprisonment of a natural parent under a lifetime sentence does not, as a matter of law, constitute abandonment of his natural child.”

In that case the natural father objected to the adoption of his child by his former wife’s then husband. The father was serving a life sentence for crimes unrelated to the child’s mother. There, in the divorce proceeding, the court stated in its final judgment,

“In view of the fact that the Husband is presently incarcerated in the Florida State Prison, the Court shall determine the time and length of visitation upon petition by either party upon the Husband’s release from the Florida State Prison.”

We further pointed out that the evidence reflected continuous efforts on the part of the father to maintain a father’s interest in his child. He had previously petitioned the domestic relations court seeking means by which his child could visit him at Raiford, and the petition was pending at the time the adoption proceeding was instituted. Here, appellant made no efforts to contact the child.

This Court, in In re Adoption by Cooper, 242 So.2d 196 (Fla. 1 DCA 1970), affirmed a final judgment of adoption by which a minor child was declared to be the legal child of her maternal grandparents over the protest of the child’s father who had shot and killed the child’s mother and thereafter pled guilty to the offense of manslaughter and was sentenced to a term of imprisonment from six months to 20 years in the state penitentiary. This Court there affirmed on the ground that the adoption was manifestly for the best interest of the child. [At that time, however, § 63.072, Florida Statutes (1975), (Chapter 73-159, Laws of Florida) had not been enacted. It lists the circumstances under which the court may excuse the consent of a parent, and the child’s best interest is not one of them, but abandonment of the child by the parent is included. The trial court’s reliance upon our decision in Harden to deny the petition for adoption was misplaced. Our holding there was that the imprisonment of a natural parent under a lifetime sentence does not, as a matter of law, constitute abandonment of his child. It is apparent from the trial court’s statements on the record that, were it not for his conclusion that such ruling in Harden prohibited his doing so, he would have approved the adoption. In the case sub judice, however, we not only have the factor that the father is serving two life sentences, but we also have the added circumstance that such is the result of his having murdered the child’s mother and thereby demonstrated his unfitness to have any further parental relationship with this child. In addition, we have the further circumstance that he has made no effort whatsoever to establish even a minimal parental relationship with the child. Such constitutes abandonment of his child, and his consent to the adoption is thereby waived pursuant to § 63.072, Florida Statutes (1975).

Reversed and remanded with directions to grant appellants’ petition for adoption.

BOYER and MELVIN, JJ., concur.


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    Lee E. MALLORY, Sr., father of Lee E. Mallory, Jr., a minor, Appellant, v. Lee E. MALLORY, Jr., a minor, by and through his next friend and natural guardian, Edith Mallory, Appellee.
    No. FF-269.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1977.
    Ernest D. Jackson, Sr., Jacksonville, for appellant.
    Ralph Roberts of Roberts & Roberts, Jacksonville, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the order appealed is affirmed.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

Lee E. Mallory, Jr., a minor, was seriously injured and burned in a vehicular accident. His father, Lee E. Mallory, Sr., had theretofore procured a policy of medical insurance by which his minor son was covered. The insurance company paid medical expenses on account of the minor’s injuries in the sum of $2,680.59. Thereafter the minor’s parents, Lee E. Mallory, Sr. and Edith Mallory, were divorced (the marriage was dissolved under Florida law) and custody of the minor was awarded to the mother.

The insurance carrier for the driver of the vehicle which caused young Mallory’s injuries had coverage of only $15,000. With the consent of all parties the carrier deposited its limitation of liability, $15,000, in the registry of the court. The learned trial judge found, inter alia, “that in view of the severe, permanent injuries and disfigurement that the minor Plaintiff has suffered, it would be unconscionable to apportion the proceeds of $15,000 previously paid into the Registry of this Court between the minor Plaintiff and the Defendant father.” (The mother made no claim for loss of services nor otherwise, but the father had sought payment in full of the $2,680.59 paid by his medical insurance carrier.)

I concur in affirmance but in doing so I am of the view that we should explain that notwithstanding the citation by the learned trial judge of Yordon v. Savage, 279 So.2d 844 (Fla.1973), and appellant’s reliance thereon it clearly appears that the holding of that case has no application to the facts sub judice. Completely outside the holding of the Yordon case, the trial judge, under the facts of this case, had the right and duty of apportioning the proceeds' of the insurance policy and in view of the severe injuries suffered by the minor Mallory the judge did not abuse his discretion in apportioning no part thereof to the father on account of medical expenses paid by the medical insurance carrier.


text:
    Harry G. GOWENS, for the use and benefit of State Farm Mutual Automobile Insurance Company, Appellant, v. KEY FORD, INC., and Ford Motor Company, Appellees.
    No. FF-308.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    William R. Ptomey, Jr., Pensacola, for appellant.
    No appearance for appellees.
   PER CURIAM.

REVERSED and REMANDED. While we specifically do not rule on the ultimate resolution of this case, we hold that the lower court erred in directing a verdict against Appellant. The testimony he presented and the reasonable inferences therefrom were sufficient to send the case to the jury. It is the jury’s duty to weigh and evaluate all of the testimony in cases of this type. Cromarty v. Ford Motor Co., 341 So.2d 507 (Fla.1977).

McCORD, C. J., and BOYER and MELVIN, JJ., concur.


author: ERVIN, Judge.

text:
    STATE of Florida ex rel. Mary Louise MULLEN a/k/a Mary Louise Mullins, Relator, v. Honorable William T. SWIGERT, Judge of the Circuit Court of the Fifth Judicial Circuit in and for Marion County, Florida, Respondent.
    No. GG-431.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    John B. Fuller of Savage, Krim, Simons & Fuller, Ocala, for relator.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.
   ERVIN, Judge.

This court reviewed the early facts of this prosecution in State ex rel. Mullins v. Swigert, 345 So.2d 386 (Fla. 1st DCA 1977). After arresting the relator, the state waited for 173 days to file an information and set a trial date on the 179th day. We then concluded that although the trial court’s order granting a continuance of 90 days was erroneous, the court had jurisdiction because the extension order was made within the time prescribed by the rule, so prohibition would not lie.

We are now confronted with the sequel of relator’s prosecution. A summary of the proceedings is as follows:

1. On January 4, 1977, the trial court extended trial 90 days or until April 4,1977.

2. Subsequently suggestion for writ of prohibition was filed in our court, and on March 1, 1977, rule nisi was issued.

3. The rule was finally discharged on May 23, 1977.

4. On July 15, 1977, the assistant state attorney notified defense counsel trial would be held on July 25, 1977.

5. Motion for discharge was denied on July 19, 1977, and on July 21, 1977, suggestion for writ of prohibition was again filed in our court.

Relator contends, and we agree, that the 55 days which elapsed between January 4, 1977, when the extension order was entered, and March 1,1977, when our rule nisi issued, must be charged against the 90-day period in which the state was required to bring relator to trial. The continued running of the speedy trial period was tolled by our rule nisi, which deprived the trial court of jurisdiction to proceed. However, our order discharging the rule became final on May 23, 1977, and the hands of the clock again began to turn. No further extension order having intervened, the 90-day period for trial allowed by the court’s January 4 order expired June 27, 1977, 35 days after May 23.

The state relies upon State ex rel. Simonds v. Hall, 326 So.2d 443 (Fla. 2nd DCA 1976). Following Simonds’ conviction of several crimes, he appealed and the appellate court reversed. The state petitioned for certiorari to the Supreme Court after the 15 day automatic stay period expired. Simonds cross-petitioned. Certiorari was denied both parties on July 17, 1975. Si-monds sought discharge, was denied and again appealed. He contended the 90 day speedy trial time, set forth in Fla.R.Crim.P. 3.191(g), ran from the date mandate of the appellate court was issued reversing his conviction on January 7, 1975, not from the date of the denial of his cross-petition for certiorari by the Supreme Court on July 17, 1975. The Second District Court of Appeal’s opinion interpreted the effect of Fla. R.Crim.P. 3.191(g), providing generally that a person who is to be tried again shall be brought to trial within 90 days either from the date of an order of mistrial, the date of an order by the trial court granting new trial, or date received by the trial court of a mandate making possible a new trial for defendant. We do not perceive that Rule 3.191(g) applies to a proceeding such as here where a defendant contests the very jurisdiction of the court on the ground of the running of speedy trial time. We are not confronted with a situation where relator’s conviction was reversed, resulting in a new trial, or where she was granted a mistrial at the trial level, thus permitting the state 90 additional days in which to try her. Clearly neither Rule 3.191(g) nor Simonds contemplates the type of proceeding now before us.

In different contexts, speedy trial time has been tolled and the time which elapsed prior to the tolled periods was allowed to be computed in determining whether the rule was violated. E. g., State v. Williams, 287 So.2d 415 (Fla. 2nd DCA 1973); Grisham v. State, 319 So.2d 130 (Fla. 1st DCA 1975); Johns v. State, 340 So.2d 528 (Fla. 2nd DCA 1976). The court could, upon the state’s motion or upon its own motion, have extended the trial time upon a finding that exceptional circumstances existed by reason of the delay caused by relator’s filing petition for writ of prohibition, 3.191(d)(2) & (f). The state could not, however, seek to extend the date set for trial by merely filing a notice of a new trial date which was outside the 90 day trial limits.

The writ is made absolute and respondent is prohibited from taking any further action in this cause.

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