text:
    DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Margaret ELY et al., Appellees.
    No. 76-1572.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.

      Alan E. De Serio and H. Reynolds Sampson, Tallahassee, for appellant.
    John R. Farrell, Reiseman, Buchbinder & Elegant and Ira M. Elegant, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

By this appeal, we are asked to review a final judgment in an eminent domain proceeding. The condemning authority [Division of Administration, State of Florida, Department of Transportation] appeals and contends that the compensation award is improper. We agree and reverse for a new trial.

Condemnation proceedings were instituted in this cause by the Florida Department of Transportation who sought to appropriate a parcel of land in Dade County for the purpose of completing the Homestead Extension of the Florida Turnpike. The condemned parcel was part of a mobile home park owned by two people who have since been given compensation for the loss of their land. The appellee, Southeastern Propane Gas Co., had a service and easement agreement with the owners of the mobile home park to supply liquefied petroleum gas to the home trailers in the park.

Pursuant to this agreement, Southeastern Propane Gas Co. installed underground gas lines and other appropriate equipment for the purpose of serving the twelve trailer sites on the condemned parcel as well as the other trailer sites which were not condemned in the rest of the mobile home park. The condemnation in this case frustrates the contract to provide liquefied petroleum gas service to the twelve trailer sites on the condemned parcel. It is undisputed that Southeastern Propane Gas Co. has lost its underground gas lines and must incur a cost to remove any salvagable items on the condemned parcel. The condemnation judgment appealed from is based on a jury verdict rendered after trial. The judgment awards Southeastern Propane Gas Co. $4,157.63 as compensation for the value of the property appropriated and consequent business damages suffered as authorized under Sections 73.071(3)(a), (b), Florida Statutes (1975).

The law is clear that a service and easement agreement held by a private company to provide water and sewer service to the owners of land creates no property right which is compensable upon condemnation of the land or the right-of-way on the land to' which such agreement relates. Such a service and easement agreement creates an easement in gross personal to the company and not appurtenant because the easement is unsupported by another dominant estate held by the company which the easement benefited. And the incidental frustration of the performance of such service and easement agreement by the condemnation of the land serviced by the agreement is equally non-compensable in an eminent domain proceeding. As to such an appropriation, the only compensation to which such private company is entitled is the value of its lost trade fixtures located on the condemned land as well as the cost of removing other trade fixtures which are salvagable from such land. North Dade Water Co. v. Florida State Turnpike Authority, 114 So.2d 458, 460-61 (Fla. 3d DCA 1959); Rose v. State, 24 N.Y.2d 80, 298 N.Y.S.2d 968, 246 N.E.2d 735 (1969); United States v. Certain Property, 344 F.2d 142, 145 (2d Cir. 1965). See also Pensacola Scrap Processors, Inc. v. State Road Department, 188 So.2d 38 (Fla. 1st DCA 1966).

Damages to a business located on land appropriated in an eminent domain proceeding do not constitute part of the constitutionally protected right of just compensation for the public taking of private land and are only compensable if allowed by statute. State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966); State Road Department v. Abel Investment Co., 165 So.2d 832 (Fla. 2d DCA 1964). Where less than the entire property is sought to be appropriated, any reasonable damages to an established business located on adjoining land not appropriated are compensable by statute providing: (1) the business is owned by the party whose land is being taken, and (2) the business has been on the adjoining property for more than five years. State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966); Section 73.071(3)(b), Florida Statutes (1975).

The above rules apply with equal force to a service and easement agreement held by a private company to supply liquefied petroleum gas to the owners of land such as the service and easement agreement involved in the instant case. This agreement created solely an easement in gross personal to Southeastern Propane Gas Co. because it did not serve another dominant estate held by the company. Such easements in gross are not compensable in an eminent domain proceeding, and, consequently, Southeastern Propane Gas Co. is not entitled to compensation for the loss of a property interest in the condemned land.

Business damages under Section 73.-071(3)(b), Florida Statutes (1975) are equally inapplicable in the instant case. Southeastern Propane Gas Co. did not own or have any property interest in the condemned land as required by the statute in order to qualify for business damages. Moreover, its business had not been operating on the adjoining land for more than five years as further required by the statute. The fact that Southeastern Propane Gas Co. as a company has been incorporated and doing business elsewhere throughout the state since the early 1950’s does not satisfy this five year requirement under the statute.

The Florida Department of Transportation concedes, however, that Southeastern Propane Gas Co: is entitled under the above-stated principles of law to the value of its lost gas installation fixtures and the cost of removing its salvagable items of property such as meters located on the condemned parcel. We, therefore, reverse the award made in this case and remand the cause for a new trial for a determination of the such allowable compensation.

Reversed and remanded for a new trial.

      . The service and easement agreement contains the following pertinent provisions:
      “2. That Buyer [Cove Mobile Home Park] for itself, its successors and assigns, does herewith give unto the said Seller, [Southeastern Propane Gas Co.] their heirs, successors and assigns, for the time limit hereinafter set forth, the sole and exclusive easement rights to install and maintain the complete gas system which is to be located upon the aforementioned real property:
      To have and to hold the aforesaid exclusive easement rights for a period of fifteen (15) years from date of this Agreement.
      3. Seller agrees to comply with all applicable State and County regulations, and agrees to comply with all safety measures required of it by such authorities.
      4. Seller agrees:
      (a)to install at a location or locations mutually agreeable to Seller and Buyer LP-Gas storage tanks of sufficient capacity to provide uninterrupted service to the aforementioned mobile home sites;
      (b) to install underground gas lines, pipes individually to each mobile home site constructed on the aforementioned property, and connected by meter to the gas source; and
      (c) to provide throughout the term of this Agreement uninterrupted LP-Gas service for each mobile home located on sites constructed on the aforementioned property and for all other liquefied petroleum gas requirements on the aforementioned property.
      5. All excavating and back filling necessary for the installation of the gas distribution system, shall be performed by Seller at its expense, it being the parties intent that the piping system be located underground.
      6. It is understood and agreed by and between the parties hereto that a Fifteen (15.00) Dollar meter deposit and a Five (5.00) Dollar turn on and connect charge will be placed with and paid to Seller by the mobile home occupant upon request of service. Buyer agrees that Seller may charge the mobile home occupant a minimum charge of Three Dollars and Fifty ($3.50) cents per month or any part of a month when gas service is turned on and, in the event of temporary turnoffs, Seller will charge the mobile home occupant Seven Dollars and Fifty ($7.50) cents service charge to discontinue service and Seven Dollars and Fifty ($7.50) cents service charge to restore service. No final-off charge will be made to trailer occupants upon termination of service due to occupant moving out of trailer park. Buyer agrees that it will pay to Seller the sum of Two Dollars and Fifty ($2.50) cents per month on any occupied mobile home site where gas service is not in use and the occupant is not paying the aforementioned Three Dollars and Fifty ($3.50) cents monthly minimum bill. It is understood by both parties that this Two Dollar and Fifty ($2.50) cents per month charge will be paid by Buyer until such time that the subject mobile home site is occupied by a gas using resident. Seller agrees that the aforementioned Two Dollars and Fifty ($2.50) cents per month charge as specified in this paragraph will not be effective until six (6) months after first gas service is turned on. Seller agrees that the price of LP-Gas will be competitive to and will not exceed prevailing prices charged in the area for analogous and comparable installations.
      7. In the event any one individual mobile home account fails to use a minimum of one hundred and twenty five gallons of gas in anyone calendar year Buyer agrees that Seller may bill said mobile home occupant for the difference between his actual consumption and the one hundred and twenty five gallons annual minimum.
      8. It is further understood and agreed by the parties hereto that Seller will supply any and all other liquefied petroleum gas requirements on the aforementioned property for the terms of this Agreement.
      9. It is further understood and agreed by the parties hereto that all underground piping and equipment installed by Seller upon the real
      property described hereinabove shall remain the sole property of Seller for the term of this Agreement, and at the termination of this Agreement, the underground gas lines will become the property of the Buyer.
      10. Seller’s responsibility as outlined in this Agreement is contingent upon Federal and State laws and regulations, fires, strikes, disputes with workmen, floods, hurricanes, accidents, delays in transportation and any other causes beyond reasonable control of the Seller.
      11. This Agreement shall bind and benefit the successors and grantees to Seller and Buyer, respectively, it being the intent of this Agreement that Buyer’s covenants hereunder shall run with the land. * * * * ”

      . “The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
      (a) The value of the property sought to be appropriated; and
      (b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including when the action is by the Division of Road Operations of the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of- more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and extent of such damages.” Sections 73.071(3)(a), (b), Florida Statutes (1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth ATHERTON, Appellant, v. Jacqueline ATHERTON, Appellee.
    No. 76-1794.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    Horton, Perse & Gingsberg and Mallory H. Horton, Miami, for appellant.
    Heller & Kaplan and Daniel Neal Heller, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977). See also Krischer v. Krischer, 337 So.2d 1011 (Fla.3d DCA 1976).


text:
    LIFE INSURANCE COMPANY OF FLORIDA, a Florida Corporation, Appellant, v. Loran LAWTON, Appellee.
    No. 76-1799.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    Joseph I. Davis, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Mark Marks, North Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Equitable Life Assurance Society of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934).


text:
    BAJAMAR DEVELOPMENT CORPORATION, Appellant, v. COPLAN PIPE & SUPPLY CO., INC., a Florida Corporation, et al., Appellees.
    No. 76-1812.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    Gilbride & Heller and James F. Gilbride, Miami, King & Katz, Hialeah, for appellant.
    Kavanaugh & Leiby and Larry R. Leiby, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); GACL, Inc. v. Zeger, 276 So.2d 552 (Fla. 3d DCA 1973); and Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976).


text:
    Jane C. VINING, Appellant, v. Catherine M. HETHCOX d/b/a Palmetto Properties, Realtor, Appellee.
    No. 76-1823.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    Edward C. Yining, Jr., Miami, for appellant.
    Gregory T. Zell, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Dade County v. Pepper, 168 So.2d 198 (Fla. 3d DCA 1964); and Marx v. Goldfinger, 187 So.2d 380 (Fla. 3d DCA 1966).


text:
    Joan Jones WEBB and Coronet Realty Corp., Petitioners, v. FLORIDA REAL ESTATE COMMISSION and Casimer M. Szpak, Respondents.
    No. 77-707.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Rehearing Denied Nov. 16, 1977.
    H. Robert Koltnow, Miami, for petitioners.
    Howard Hadley, Frederick H. Wilsen, and Richard J. R. Parkinson, Winter Park, for respondents.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

We are presented with a petition for writ of certiorari seeking review of an order of the Florida Real Estate Commission, which is as follows:

“(c) That the Hearing Officer’s Findings of Fact and Conclusions of Law be, and the same are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission; and
“(d) That the Hearing Officer’s Recommended Order to issue the Defendants a written reprimand be, and the same is hereby, rejected.
“IT IS FURTHER ORDERED that the Defendants be, and they are hereby, found not guilty of violating Subsections 475.25(l)(a) and (c), Florida Statutes, as charged in Count Four of the Administrative Complaint.
“IT IS FURTHER ORDERED that the Defendants, Coronet Realty Corp. and Joan Jones Webb, be, and they are hereby, found guilty of violating Subsection 475.25(l)(i), Florida Statutes, as charged in Counts One, Two and Three of the Administrative Complaint, and found guilty of violating Rule 21V-10.10, Florida Administrative Code, Subsection 475.-25(l)(d), Florida Statutes, as charged in Count Five of the Administrative Complaint, and for said violations, the registration of Defendant Coronet Realty Corp. is hereby suspended for a period of sixty (60) days, and the registration of Defendant Joan Jones Webb is hereby suspended for a period of sixty (60) days.”

The Conclusions of Law in the Recommended Order of the hearings officer, which were accepted by the Commission, are in part as follows:

“5. In determining an appropriate penalty for the aforesaid violations of the law, it is appropriate to note first that Respondent Webb has been a real estate broker for a lengthy period and there is no indication that she has been disciplined on any prior occasions. It was clear from the testimony presented at the hearing that she enjoys a fine reputation with the clients involved in the instant transactions and that they reposed a considerable amount of faith and trust in her honesty and good judgment. The earnest money deposits were placed in a segregated account from all personal, firm, or operating accounts of the Respondents and none of these funds were misappropriated, dissipated or lost, nor was anyone hurt or prejudiced thereby. On the other hand, aside from being a technical violation of the law, it is clearly inappropriate and a potential source of future dispute for a broker to earn money in this manner from funds belonging to others. If Webb was not aware of the dangers of such a practice, she should have been, as an experienced realtor. Accordingly, it cannot be said that there were mere technical violations of the law. The improper advertisement, however, is of a minor technical nature and inasmuch as it reflected the name of a real estate firm in its text, it is not reasonable to assume that anyone would have been misled thereby. Respondents recognized their inadvertent error in this respect and it is not believed that this violation is of serious consequence.
“In view of the above, and taking into consideration a determination that Respondents’ derelictions did not involve fraud or dishonesty, it is not believed that license suspension is warranted. However, Respondents should receive a written reprimand to include an order to cease and desist from the prior practice involving the handling of escrow funds.”

The suspension of a real estate broker for a period of sixty days from her method of obtaining a livelihood is a harsh penalty which ought not be imposed except in cases of serious dereliction involving either fraud or culpable misconduct. See Pauline v. Borer, 274 So.2d 1 (Fla.1973); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla.2d DCA 1966); and Peck v. Florida Real Estate Commission, 204 So.2d 355 (Fla.2d DCA 1967). See also Rogers v. King, 161 So.2d 258 (Fla.1st DCA 1964). Our review of the record convinces us that the Commission has unduly penalized petitioner in a case where only a minor violation of the rules of the Commission is evident. Thereupon, the petition for writ of certiorari is granted insofar as the penalty involved departed from the recommendation of the hearings officer. That portion of the order imposing a penalty of suspension from practicing as a real estate broker is quashed and the order is amended to provide that the Commission shall issue a written reprimand to the petitioner. All other portions of the final order of the Commission shall remain unchanged.

It is so ordered.

      . See Robert’s Drugstore, Inc. v. Florida Board of Pharmacy, 346 So.2d 118 (Fla.3d DCA 1977), where, in an administrative matter, this court reduced the penalty incurred.


author: RAWLS, Acting Chief Judge.

text:
    The PUBLIC BANK OF ST. CLOUD (proposed new bank), Petitioner, v. STATE of Florida DEPARTMENT OF BANKING AND FINANCE and Gerald A. Lewis, as Comptroller of Florida and Head of the Department, Respondents.
    No. EE-94.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1977.
    Rehearing Denied Nov. 16, 1977.
    J. Riley Davis of Taylor, Brion, Buker & Green, Miami, for petitioner.
    William B. Corbett, Jr., Tallahassee, for respondents.
   RAWLS, Acting Chief Judge.

In August, 1973, a group of citizens filed their application with the Comptroller to establish a bank in St. Cloud, Florida. The application received conditional approval from the then Comptroller Dickinson in December, 1974. In January, 1975, Comptroller Lewis revoked the conditional approval, requested updated economic data, and in November, 1975, denied the application. Subsequent to that denial, the petitioner sought administrative remedies pursuant to the provisions of Section 120.57(1), Florida Statutes. Respondent unsuccessfully sought through various pleadings filed in the circuit court, district court of appeal and supreme court to stay the administrative hearing. Ultimately, after hearing numerous witnesses and considering reams of exhibits, the administrative hearing officer entered a recommended order reciting findings of fact and conclusions of law. In essence, the hearing officer, by her recommended order, found that:

1. The proposed bank’s downtown location would promote convenience and competitive advantages for the residents of St. Cloud.

2. The four existing banks in Osceola County (all members of statewide holding companies) enjoyed substantial profits and a considerable recent increase in deposits, and that the most recent competent economic evidence demonstrated a reasonable promise of success for the proposed bank as well as the existing banks.

3. The petitioners had met their burden of proof in demonstrating the adequacy of the capital structure for the proposed bank.

4. The name of the proposed bank would not be confused with existing banks; and

5. The bank would be housed in a suitable building for such an institution.

By the above findings, the hearing officer found that the petitioner had fulfilled five of the six requirements of Section 659.03(2), Florida Statutes, necessary for respondent to approve a bank charter application. The sixth and remaining • requirement, Section 659.03(2)(d), Florida Statutes, requires that an application not be approved until “the proposed officers and directors have sufficient banking or trust experience, ability and standing to assure reasonable promise of successful operation.” On this point, the hearing officer found:

“ . . . The evidence illustrates that the makeup of the proposed ten-man board of directors is well balanced with regard to local participation and banking experience and its members represent a cross-section of the community. The evidence adduced at the hearing cast some doubt upon the financial standing and ability of two members of the proposed board of directors and indicates that one of those two members lacks a good reputation as a businessman in the community. .. . ”

After restating that five of the six “mandatory” criteria had been met by the petitioner and commenting on the refusal of the respondent to participate in the administrative hearing, which had the effect of denying the hearing officer evidence concerning respondent’s established practices in applying Section 659.03(2)(d), Florida Statutes, the hearing officer concluded that:

“ . . . petitioner has demonstrated that it meets the criteria listed in § 659.-03(2)(a), (b), (c), (e) and (f), but has not shown that its proposed officers and directors have sufficient ability and standing to assure reasonable promise of successful operation, as required by subsection (d). However, before a final decision of denial on this ground is reached, fairness and equity require that certain factors be considered. These factors include the recent nature of the events concerning the two directors’ standing and ability, the Comptroller’s failure to reach a conclusion as to this criterion, the lengthy amount of time elapsing and the obvious expenses incurred by both parties in the processing of petitioner’s application and the fact that this criterion is substantially within the control of the applicant. Consideration of these factors leads the undersigned to conclude that it would only be fair and equitable to allow petitioner a short amount of time within which to review the financial standing and ability of its proposed directors and, if it so desires, submit an amended list to respondent for its review.”

The hearing officer recommended that disapproval be without prejudice to petitioner to file with the respondent, within 15 days of respondent’s final order, an amended list of directors and/or officers and that respondent render a decision upon this criterion within 20 days from the filing thereof.

By its final order rejecting the hearing officer’s recommendation that petitioner be allowed to amend its list of directors and/or officers, respondent seized upon paragraph (22) of the findings and concluded that “if all six (6) criteria must be met by an applicant, as a mandatory requirement before approval can be granted, then the failure of the applicant to meet any one of the statutory criterion similarly requires mandatory denial of the application.” Apparently, it is the Comptroller’s position that unless every “i” is dotted and “t” is crossed in the voluminous data required in an application for a bank charter, his duty, as a matter of law, requires disapproval of same.

Thus, the issue is crystallized into the sole question: Did the Comptroller abuse his discretion in not permitting petitioner to file within 15 days (which petitioner proffered) an amended list of directors and/or officers and that respondent render a decision upon this criteria within 20 days from the filing thereof?

In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla.1st DCA 1977), Judge Smith, speaking for this court, authored an extensive opinion in which the discretion of the Comptroller, as head of the Department, was confirmed. However, the opinion emphasized how the Administrative Procedure Act affects the exercise of that discretion, viz: 1) the process by which disputed facts are found, 2) the adoption of rules by the agency of reflecting its policy statements of general applicability, and 3) the requirement that the agency explain the exercise of its discretion. In reviewing this extensive record, we find no indication that the Comptroller has adopted a rule or explained that agency’s incipient policy as to amending an application for a bank charter during the long and arduous journey of processing same. However, we do find in this record that the Comptroller, while this cause was pending in this court, permitted the amendment of another charter by the applicants therein. Such evidence alone, when considered in light of the voluminous data initially required at the outset of applying for a charter, demonstrates that the Comptroller’s action in mandatorily denying the instant application constituted an abuse of discretion.

The petition for review is granted and the order is quashed with directions that the Comptroller entertain the proffered amendment to the subject application as to directors and/or officers within an expeditious time period, and if such persons are found to possess sufficient ability and standing to assure a reasonable promise of successful operation to grant the subject application.

MILLS and ERVIN, JJ., concur.

      . The Comptroller, in an order dated March 15, 1977, regarding “IN RE: Northgate Bank of Tallahassee”, found, inter alia:
      “ . . . said application be and the same hereby is approved for further processing subject to the following conditions:
      4. The Chief Executive Officer and the Operations Officer of the bank must be approved by the Department of Banking and Finance prior to the opening of the bank.
      7. Due to Mr. . . . fiduciary responsibilities with respect to his serving as trustee in bankruptcy . . . that he not serve as a director of Northgate Bank of Tallahassee during the pendency of his serving as trustee


author: RAWLS, Judge.

text:
    Lloyd D. WESTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. CC-478.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.
    Rehearing Denied Nov. 21, 1977.

      Patrick G. Ingraham, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

Appellant appeals from a judgment of conviction of sexual battery upon a person 11 years of age or under. The only issue posed by appellant that merits our consideration is whether the trial court erred in not granting a new trial upon the proffer of newly discovered evidence.

The basic facts are: At trial, the victim, a minor female child under the age of 11 years, testified as to appellant’s repeated sexual attacks upon her. Subsequent to appellant’s conviction, affidavits of the minor victim and her mother, recanting the trial testimony of the victim, were submitted to the trial court at a hearing upon appellant’s motion for new trial. After being advised that the two affiants had been subpoenaed but not served, the trial court stated, “I’m only interested in testimony of the witnesses.”, and postponed the hearing until .the witnesses could be present for a full evidentiary hearing. Some eight days later, a full evidentiary hearing on the motion for new trial was afforded by the trial court. At this hearing, the minor child recanted her statement, giving as the primary reason for making same, viz: “Because I knew he was in jail and I didn’t want him to stay in jail that long, so I told my mother.

“. . . Butterball [appellant’s father] was talking to me and told me to tell them that he didn’t do it.”

The minor child’s unequivocal testimony at this hearing was that she told the truth about appellant’s sexual assaults at the trial.

Citing Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944), appellant contends that the trial court, upon being presented with the affidavits, should have granted a new trial. We do not so read Lowe. By reciting the extensive “I don’t remember” testimony of the prosecutrix, the Supreme Court decided that an affidavit of a witness, who had not previously testified, was adequate to require that a new trial be granted. In the instant case, the witness testified in great detail at a trial in which the same trial judge presided at the hearing on the motion for new trial.

Bell v. State, 90 So.2d 704 (Fla.1956), controls. The Bell court, in extracting the following statement from Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1938), very clearly stated the applicable rule as:

“ ‘ “A material error or misstatement in the testimony of a witness for the prosecution may constitute ground for a new trial. Where therefore it appears, that, on a new trial, the witness will change his testimony to such an extent as to render probable a different verdict, the new trial will be granted. But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involved a confession of perjury * * *

Appellant relies strongly upon the opinion of the Second District Court of Appeal in Solis v. State, 262 So.2d 9, 11 (Fla.2nd DCA 1972), which states, in part:

“It is not within the province of the trial judge at that juncture to determine on which of the two occasions the witness was telling the truth. To do so would be preempting the function of a trial jury.

To any extent that Solis conflicts with our holding, we decline to follow Solis. Here, the minor victim testified unequivocally at trial as to her suffering the acts of sexual molestation on appellant’s part. Her testimony recanting the affidavit given after appellant’s conviction contained clear and logical reasons for making the written statements. The trial judge is commended for postponing the hearing until this key witness’ testimony could be received rather than relying upon a cold written statement. The trial court properly exercised its responsibilities in denying the motion for new trial.

AFFIRMED.

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

      . Appellant was over the age of 18 years at the time of the offense.

      . The mother’s affidavit contained statements made by her daughter to her which were made after the conviction.

      . The substance of the victim’s statement was:
      “. . . I, now admit, that Lloyd D. Weston, Jr., never at all ever, during the time that I have known him, has touched me in any sexual way, has never had intercourse with me, has never had sex with me in any way, shape or form, and the only reason that I testified that he did was that he and my mother had frequent fights, and I was afraid of Lloyd D. Weston, Jr., and wanted him to move out of my house.


author: LETTS, Judge.

text:
    George THOMAS and Lorenzo Holmes, Appellants, v. STATE of Florida, Appellee.
    No. 76-990.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, and Robert J. Bogdanoff, Legal Intern, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal arises from a two count conviction, first, of attempted breaking and entering, and second, of possession of burglary tools. We reverse the latter and affirm the former.

The principal point on appeal concerns the refusal of the trial judge to give a jury instruction on attempted possession of burglary tools and we agree that this was erroneous.

Under the mandate of Brown v. State, 206 So.2d 377 (Fla.1968) and Rule 3.510 Fla.R.Crim.P. the jury should have been so instructed. To the pertinent inquiry of, “Since when has an attempt to possess burglary tools in and of itself been held to be a crime?,” we can only answer that Section 777.04(1) Florida Statutes (1975) appears to us to make it so. Moreover we have held attempted possession of cocaine to be a crime, Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), and attempted possession of marijuana to be likewise. Nichols v. State, 248 So.2d 199 (Fla. 4th DCA 1971). We cannot see a rational distinction between these two holdings and the case at bar. Nor can we conclude that the crime of possession of burglary tools under Section 810.06 Florida Statutes (1975) is in and of itself a crime involving attempt. If we were able to so conclude, then we would agree that “if the crime is [in and of] itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” King v. State, 339 So.2d 172 (Fla.1976). See also Hutchinson v. State, 315 So.2d 546 (Fla. 2nd DCA 1975). In other words, we agree that one cannot attempt an attempt. However it appears to us that possession of burglary tools with intent to commit a burglary is an offense by itself, rather than an attempt to commit burglary. This is so because one of the requisite elements of attempt, some act towards completion of the crime beyond mere preparation, is not supplied by the possession of burglary tools alone. See Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967).

This decision has not been reached without some agonizing. Not only do we view the entire law of instructions on attempt to be somewhat of a paradox whenever the evidence conclusively demonstrates that the crime was in fact committed, but also we are confronted by two recent cases which further undermine Brown, supra. The first of these comes from our brothers in the Third District who have within the last four months concluded that attempted unlawful possession of dynamite cannot be an offense. Henry v. State, 344 So.2d 1311 (Fla. 3rd DCA 1977). Their rationale, if correct, makes this decision incorrect, for the Third District reasons that possession of dynamite WITH INTENT to use it for an unlawful purpose is a crime which, in and of itself is an attempt. They conclude that intent and attempt are synonymous. We agree that you cannot attempt an attempt, but we are not satisfied that possession of dynamite with intent can be construed to be an attempt offense.

The second erosion of Brown seems to us to have come from the Supreme Court itself when it “. . . specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide.” Martin v. State, 342 So.2d 501, 502 (Fla. 1977). We enthusiastically agree with this decision and note the following language:

We hold that where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter and justifiable and excusable homicide.

Such language not only controls us but seems eminently sensible. In fact, we would also like to be able to say that, where the evidence-is conclusive that possession of burglary tools under Section 810.06 Florida Statutes (1975) has unequivocally occurred, the proper jury instructions would preclude an instruction on attempt. However, we cannot, because we agree with Judge Grimes that:

. . the language of the majority opinion [in State v. Terry, 336 So.2d 65 (Fla.1976)] unmistakably suggests that the Supreme Court has now returned to a strict adherence to Brown v. State, 206 So.2d 377 (Fla.1968) . . . . The fact that the evidence conclusively demonstrates that if a crime was committed at all it had to be the more serious crime, is irrelevant. Without saying so the Supreme Court has now apparently adopted the theory of “jury pardon” which was advanced as a minority position in Gilford [v. State, Fla., 313 So.2d 729], Lightfoot v. State, 331 So.2d 388 (Fla. 2nd DCA 1976).

For the foregoing reasons we feel compelled to hold that a charge of attempted possession of burglary tools should have been given to the jury and the conviction for actual possession of them is therefore reversed and remanded for a new trial.

Notwithstanding this holding, we are of the opinion that the Fourth and Third Districts of this state have presented divergent views on the attempt question. Accordingly, we respectfully certify, as a matter of great public interest, the following question to our Supreme Court:

IF A DEFENDANT IS CHARGED WITH POSSESSION OF BURGLARY TOOLS UNDER SECTION 810.06, IS IT NECESSARY TO INSTRUCT THE JURY ON ATTEMPT?

The conviction for attempted breaking and entering is affirmed for we cannot agree that a policeman’s testimony that he had known the defendant for quite a while constituted reversible error. Such acknowledgment of personal acquaintance, without more, is just as consistent with innocent activities as it is with criminal conduct. United States v. Brock, 408 F.2d 322 (5th Cir. 1969).

ALDERMAN, C. J., and MARVIN U. MOUNTS, Jr., Associate Judge, concur.

      . § 777.04(1) Fla.Stat. (1975) and § 810.02(3) (1975).

      . § 810.06 Fla.Stat. (1975).

      . 344 So.2d at page 1312, it is said:
      The crime charged in the instant action is a licensing statute relating to the possession of dynamite. If dynamite is possessed without a license, it raises a prima facie presumption of “intent to use the same for destruction of life, limb, or property”. In Henderson v. State, 55 So.2d 110 (Fla.1951), “intent” has been defined as follows:
      . In the case of Bunch v. State, 58 Fla. 9, 50 So. 534, this Court settled the question that for the purpose of a similar verdict the words “attempt” and “intent” were synonymous. Id. at 111, 50 So. 534.

      . The ebb and flow of decisions on jury instructions is carefully documented by Judge Aider-man in Garrison v. State, 340 So.2d 1171 (Fla. 4th DCA 1976).


text:
    Leo C. MAHER and Vera B. Maher, Appellants, v. B. L. MINCE and J. A. Mince, his wife, Johnny Wade, Jr., Kenneth F. Wilson and Bernetta A. Wilson, his wife, Ruth E. Reed and Pfaff Construction Co., Inc., a Florida Corporation, Appellees.
    No. 76-1903.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Curtis R. Mosley of Wolfe, Kirschenb-aum, Caruso & Mosley, Cocoa Beach, for appellants.
    Hubert C. Normile, Jr. of Nelson, Nor-mile & Dettmer, P. A., Melbourne, for ap-pellees — Kenneth F. Wilson and Bernetta A. Wilson.
    L. W. Barnard, Satellite Beach, for appel-lee — Ruth E. Reed.
   PER CURIAM.

AFFIRMED on authority of King v. Zagorski, 207 So.2d 61 (Fla. 2d DCA 1968).

DOWNEY, DAUKSCH and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Mary STONE, Appellant, v. Philip G. STONE, Appellee.
    No. 76-2088.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Martin D. Berg, Miami, for appellant.
    Jeffrey P. Wasserman and Merle Litman of Litman, Muchnick & Wasserman, Hollywood, for appellee.
   DAUKSCH, Judge.

Upon a review of the evidence we find the trial court erred in reducing the amount of alimony from $200 to $50 per week when the evidence would only support a reduction to $100 per week. In all other respects the Order is affirmed. This cause is remanded for the entry of an order in compliance herewith.

AFFIRMED AS MODIFIED and REMANDED.

DOWNEY and LETTS, JJ., concur.


author: PER CURIAM. MILLS, Judge,

text:
    Kenneth RUSE, Jr., Appellant, v. Charlene RUSE, Appellee.
    No. EE-343.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.
    Rehearing Denied Nov. 16, 1977.
    Charles Ruse, Jr., in pro. per.
    John E. Futch, Ocala, for appellant.
    Richard W. Withers of Becks & Becks, Daytona Beach, for appellee.
   PER CURIAM.

Appellant seeks reversal of an award of $4,000 as lump sum alimony as ordered in a final judgment in a dissolution of marriage proceeding in which the experienced and able trial judge specifically found “that the husband is able to pay the same”. The final judgment here sought to be reversed is fully sustained by this court’s opinion in Brown v. Brown, 300 So.2d 719 (Fla.1st DCA 1974) which, unless and until receded from by this court constitutes a binding precedent on the trial court as well as this court. The final judgment appealed is therefore

AFFIRMED.

BOYER, Acting C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

I would reverse because Ms. Ruse failed to prove her need for alimony and failed to prove the ability of Mr. Ruse to pay her alimony.

Ms. Ruse’s testimony that she did not need alimony was unrebutted. At the time of the final hearing, Ms. Ruse was earning $12,000.00 a year and Mr. Ruse was earning less than $5,000.00 a year.

I would reverse on authority of Hackney v. Hackney, 324 So.2d 179 (Fla.4th DCA 1975).


author: SMITH, Judge.

text:
    Lewis PARKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. FF-40.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.
    Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Convictions for robbery and burglary. The prosecutor’s interrogation of the accused concerning a prior larceny charge was improper, there having been no conviction, and defense counsel’s objection was sustained. There was no request either for a mistrial or a curative instruction. No error on the part of the trial judge is therefore demonstrated. The interrogation is not shown to have deprived appellant of a fair trial.

AFFIRMED.

BOYER, Acting C. J., and MILLS, J., concur.


text:
    Elzra JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-1148.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1977.
    Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we remand this case for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time appellant is to receive as Section 921.161(1), Florida Statutes (1975) requires. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). Appellant need not be present at resentencing.

McNULTY, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    Steven Robert NOLLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-562.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See State v. Barber, 301 So.2d 7 (Fla.1974); State v. Matera, 266 So.2d 661 (Fla.1972); Parks v. State, 301 So.2d 482 (Fla. 1st DCA 1974); Chapman v. State, 300 So.2d 749 (Fla. 1st DCA 1974); Parks v. State, 256 So.2d 40 (Fla.3d DCA 1971); and Fla.R.Crim.P. 3.850.


text:
    Pedro NADAL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1228.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Duran, Cantera, Kalish, Schere & Press and Robert M. Hoffman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz and Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Floyd v. State, 90 So.2d 105 (Fla.1956); Pearson v. State, 213 So.2d 616 (Fla.3d DCA 1968); Williams v. State, 280 So.2d 516 (Fla.3d DCA 1973); Wallace v. State, 319 So.2d 117 (Fla.3d DCA 1975) and Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); State v. Barber, 301 So.2d 7 (Fla.1974); Crespo v. State, 339 So.2d 697 (Fla.3d DCA 1976) and Sowell v. State, 342 So.2d 969 (Fla.1977).


text:
    William R. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1586.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. State v. Earnest, 265 So.2d 397 (Fla. 1st DCA 1972); State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975); Stuart v. State, 339 So.2d 659 (Fla. 3d DCA 1976).


text:
    Willie George REESE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1622.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Willie George Reese, in pro per.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, ÍUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Reese v. State, 276 So.2d 533 (Fla. 3d DCA 1973), cert. den. 283 So.2d 108 (Fla.1973).


text:
    Kenneth J. ROTH, Appellant, v. Linda M. ROTH, Appellee.
    No. 76-1763.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Law Offices of Kermit G. Kindred and Richard R. McCormack, Miami, for appellant.
    Harry D. Dennis, Jr., Pompano Beach, for appellee.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Krischer v. Krischer, 337 So.2d 1011, 1012 (Fla.3d DCA 1976); Simmons v. Simmons, 192 So.2d 325, 326 (Fla.3d DCA 1966).


author: HAVERFIELD, Judge.

text:
    CITY OF MIAMI, etc., Appellant, v. FRATERNAL ORDER OF POLICE, etc., et al., Appellees.
    No. 77-935.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.

      George F. Knox, Jr., City Atty. and Eugene M. Steinfeld, Asst. City Atty., for appellant.
    Weinsoff & Weinsoff, Miami, for appel-lees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

This is an appeal by the City of Miami from an order denying its motion for summary judgment and granting plaintiffs ten days within which to amend their reply to the City’s affirmative defenses in this action for alleged breach of a collective bargaining agreement between the City and the Fraternal Order of Police.

Plaintiffs Robert M. Edmunds and Ernesto Ruiz are members of the plaintiff Fraternal Order of Police, Lodge No. 20, and were employed as probationary police officers by the City of Miami. The City and the Fraternal Order of Police entered into a collective bargaining agreement which provided for the establishment of a disciplinary review board for the purpose of conducting hearings prior to a member being dismissed, demoted, fired, suspended or suffering a forfeiture of time. While on a probationary. status, plaintiffs Ruiz and Edmunds were summarily dismissed without a pre-termination hearing before the disciplinary review board despite their requests for such a hearing. Thereupon Edmunds, Ruiz and the Fraternal Order of Police filed a complaint against the City for breach of the collective bargaining agreement for failure to afford Ruiz and Edmunds, probationary police officers, the right to have their dismissals reviewed by the departmental disciplinary board. The City raised as an affirmative defense lack of jurisdiction over the subject matter in that plaintiffs failed to follow the mandatory grievance procedures contained in the agreement and, therefore, this grievance was abandoned pursuant to the agreement terms. Plaintiffs replied with a general denial. Following pretrial discovery, the City filed a motion for summary judgment. Attached to the motion were the chief and assistant chief of police’s affidavits to the effect that at no time did Ruiz or Edmunds reduce their grievance to writing as provided by the collective bargaining agreement. Ruiz and Edmunds filed affidavits in opposition to the City’s motion alleging that upon dismissal, the chief of police and assistant chief informed them that they had no rights under the collective bargaining agreement because the agreement did not apply to probationary police officers. After a hearing, the trial judge entered the appealed order denying the City’s motion for summary judgment and granting plaintiffs 10 days to file an amended reply to the City’s affirmative defense hereinabove. We affirm.

After a review of the record, we find that the trial judge properly granted plaintiffs 10 days to amend their reply to the City’s affirmative defense and, thus, this appeal is premature. Cf. Zito v. Washington Fed. Sav. & L. Ass’n of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975).

Further, the burden is upon the party moving for summary judgment to establish the nonexistence of a genuine issue of material fact and he (or she) is entitled to a judgment as a matter of law; he or she must prove this negative conclusively and the proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975).

There remains genuine issues of material fact in this cause including whether plaintiffs Ruiz- and Edmunds requested grievance procedures pursuant to the bargaining agreement and whether the City is estopped from asserting that plaintiffs failed to exhaust their administrative remedies. In addition to these issues raised by the pleadings, there still remains to be resolved the threshold question of whether under the terms of the collective bargaining agreement, plaintiff-appellees as probationary police officers are entitled to a hearing before the departmental disciplinary review board before they can be dismissed. See City of Miami v. Fraternal Order of Police, 346 So.2d 100, 101 (Fla. 3d DCA 1977).

Affirmed.

      . See Fla.R.Civ.P. 1.190(e) and Chaachou v. Chaachou, 118 So.2d 73 (Fla. 3d DCA 1960).


text:
    Susanne F. PENNYPACKER, Petitioner, v. UNIVERSITY OF FLORIDA, Respondent.
    No. EE-447.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1977.
    Stanley R. Morris and Larry G. Turner, Gainesville, for petitioner.
    Thomas S. Biggs, Jr. and Ashmun H. Brown, Gainesville, for respondent.
   PER CURIAM.

The order of the president of the University of Florida and underlying recommended order of the hearing officer are supported by substantial competent evidence and are not contrary to law. Section 120.68, Florida Statutes (Supp.1976). The prayer of the petition for review is

DENIED

SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.


text:
    William SYKES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1887.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

In this appeal from a conviction of aggravated battery after a jury trial, the appellant contests the sufficiency of the evidence. The evidence fails to establish that appellant used a deadly weapon or had knowingly or intentionally caused great bodily harm, permanent disability or permanent disfigurement in the mutual fracas between appellant and the victim. The evidence was insufficient to sustain the conviction of aggravated battery. Section 784.-045, Florida Statutes (1975).

The only other offense upon which the jury was instructed was simple battery. The evidence of the fight unequivocally establishes that the victim was the physical aggressor. The jury could not reasonably find that appellant touched or struck the victim against the victim’s will or that appellant intentionally caused bodily harm to the victim. The evidence was insufficient to support a conviction of simple battery. Section 784.03, Florida Statutes (1975).

Since all the evidence viewed in a light most favorable to the State fails to support the offenses with which appellant was charged before the jury, appellant’s conviction must be, and is hereby, reversed and the appellant discharged.

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


text:
    Willie MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-6.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Jack 0. Johnson, Public Defender, James A. Cornelius, Asst. Public Defender, Bartow and Horace S. Scruggs, Research Asst., Clinton, Miss., for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

At a hearing on appellant’s competency to stand trial, the trial judge made an oral finding that appellant was competent. However, he did not enter a written order to that effect as required by Fla.R.Crim.P. 3.210(a)(4). Emerson v. State, 294 So.2d 721 (Fla. 4th DCA 1974).

We affirm the judgment of the trial court and the sentence it imposed upon appellant. However, we remand this case to the trial court for the entry of a nunc pro tunc order finding appellant competent to stand trial.

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


text:
    Ronnie Lynn SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-151.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Ronnie Lynn Shelton, pro se.
    Jack 0. Johnson, Public Defender, Bar-tow, and Sydney L. Matthew, Special Asst. Public Defender, Tallahassee, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with burglary, possession of burglary tools, and grand larceny. He was convicted as charged on all three counts. The evidence was sufficient to support his convictions on the first two counts. However, the evidence adduced as to the value of the property taken under the larceny count was insufficient to prove grand larceny.

The evidence on this point showed that a tool box, certain office equipment, and two cases of blasting material were taken. The sole evidence adduced as to value related only to the value of the blasting material, which totalled $28.80. The jury was left to its own devices to determine the value of the rest of the items. Since there was no showing by means of competent evidence that the value of the items taken was $100 or more, appellant is entitled to have his conviction for grand larceny reduced to petit larceny. See Smart v. State, 274 So.2d 577 (Fla. 2d DCA 1973).

In view whereof, the judgments and sentences for burglary and possession of burglary tools herein are affirmed; but the judgment and sentence for grand larceny is vacated and the cause is remanded for entry of a judgment of guilt of petit larceny and the imposition of an appropriate sentence therefor.

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


author: BOARDMAN, Chief Judge.

text:
    STATE of Florida, Appellant, v. Lois A. WILCOX, Appellee.
    No. 77-271.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellee.
   BOARDMAN, Chief Judge.

This cause has been presented to us by the timely filing of a notice of appeal to review an order placing appellee/defendant, Lois A. Wilcox, a felony offender, on unsupervised probation for a period of one year. This is a nonappealable order, but we have elected to treat the appeal as a petition for writ of certiorari.

The state may appeal those orders, rulings, sentences, and judgments specifically enumerated in Section 924.07, Florida Statutes (1975). Section 924.07(5), “[t]he sentence, on the ground that it is illegal,” is only arguably applicable to the facts of this appeal. We point out that Fla.R.Crim.P. 3.700(a) defines “sentence” to mean “the pronouncement by the Court of the penalty imposed upon a defendant for the offense of which he has been adjudged guilty.” Inasmuch as adjudication was withheld, as it typically is when probation is imposed, a sentence was not imposed within the meaning of Rule 3.700(a). Review by appeal not being proper in the circumstances of this case, the court may consider the order of the trial court by certiorari if the order is, as here, unauthorized or violates the essential requirements of precedential law. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).

Appellee was charged with attempted burglary of a dwelling. She pled nolo con-tendere to attempted burglary. Section 777.04(4)(c) provides that any attempt of any degree of burglary is a third-degree felony. Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977). Adjudication was withheld, and she was placed on unsupervised probation for one year. The state argues that the trial court erred in imposing unsupervised probation.

Section 948.01(3), Florida Statutes (1975), authorizes the court to impose a term of probation in lieu of a term of imprisonment, and the defendant is to be placed, in certain situations, under the supervision of the Department of Offender Rehabilitation (DOR).

If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt, and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the supervision and control of the [department] for the duration of such probation. And the [department] shall thereupon and thereafter, during the continuance of such probation, have the supervision and control of the defendant. However, no defendant placed on probation for a misdemeanor shall be placed under the supervision of the [department] unless the court affirmatively and specifically orders such supervision after finding that supervision in the community is necessary to provide adequate protection to the community [or] to assist in the rehabilitation of the offender, or both.

Section 948.01(3), Florida Statutes.

Although the statute provides that a defendant on probation for a misdemeanor need not be placed under the supervision of the DOR, supervision by the DOR of a defendant on probation for a felony is required by the statute. It has been held that the word “shall” when used by the legislature to prescribe the action of a court is usually a grant of authority and means “may.” Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948); State ex rel. Harrington v. Genung, 300 So.2d 271 (Fla. 2d DCA 1974). However, it has also been held that probation is a creature of statute, and the courts are therefore limited to the authority afforded by the applicable statute. Pickman v. State, 155 So.2d 646 (Fla. 3d DCA 1963), cert. denied, 164 So.2d 805 (Fla.1964); Brown v. State, 302 So.2d 430 (Fla. 4th DCA 1974). We hold that Section 948.01(3), Florida Statutes (1975) providing that a defendant placed on probation for commission of a felony offense be supervised by the Department of Offender Rehabilitation is mandatory.

The petition for writ of certiorari is granted, and the cause is reversed and remanded with directions consistent with this opinion.

GRIMES and OTT, JJ., concur.

        . Appeal by the State. — The state may appeal from:
      (1) An order dismissing an indictment or information or any count thereof;
      (2) An order granting a new trial;
      (3) An order arresting judgment;
      (4) A ruling on a question of law when the defendant is convicted and appeals from the judgment;
      (5) The sentence, on the ground that it is illegal;
      (6) A judgment discharging a prisoner on habeas corpus;
      (7) An order adjudicating a defendant insane under the Florida Rules of Criminal Procedure; or
      (8) All other pretrial orders, except that it may not take more than one appeal under this subsection in any case.
      Sec. 924.07, Fla.Stat. (1975). Additional grounds for appeal by the state are set out in Sec. 924.071 (1975).

      . The information stated that the offense was committed contrary to §§ 810.02(3) and 77.04, Fla.Stat. (1975).

      . Although the Fourth District in Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977), stated that attempted burglary is a first-degree misdemeanor, the statement was made in the context of a recitation of the controlling facts rather than as a legal holding of the court. There is no citation of authority and no discussion of or indication that the issue before this court was ever presented in Bownes. Consequently, Bownes does not provide any prece-dential value.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. James MARTIN, Appellant.
    No. 59283.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Charles Brandt, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced, as a multiple offender, La.R.S. 15:529.1, to eighteen years at hard labor. The accused’s conviction and sentence must be reversed on appeal, however, because there is merit to his assignment of error number 1.

By this assignment, the accused complains of the trial court’s failure to grant his request that the jury be instructed that a responsive verdict to the crime charged was “attempted simple burglary.”

The trial judge instructed the jury that the only responsive verdicts to the charge (“simple burglary”) were “guilty” or “not guilty”. At the time of the offense (August 12, 1975), these indeed were the responsive verdicts for the crime provided by La.C.Cr.P. art. 814 (as last previously amended in 1973).

However, prior to the date of the trial (November 19, 1975), certain 1975 amendments to Article 814 were in effect. By one of these (Act 335), an additional responsive verdict of “attempted simple burglary” was provided for a charge of “simple burglary.”

The state argues that the responsive verdicts applicable to the crime at the time of the offense govern, not the responsive verdicts provided by legislative amendment in effect at the time of the trial. The trial court was in error in acceding to this argument.

At the time this case was tried, the procedural law provided that “guilty of attempted simple burglary” was a responsive verdict to the crime charged. La.C.Cr.P. art. 814(41) (as amended by Act 335 of 1975). The accused was entitled to have the jury so instructed, as he requested, in accordance with the amendment to Article 814 of the Louisiana Code of Criminal Procedure in effect at the time of the trial.

The amendment providing for different responsive verdicts is a procedural change. Therefore, under well settled principles, the responsive verdicts provided by the procedural law in effect at the time of this trial applied, not those provided by the prior procedural law as it had existed at the time of the crime. We squarely so held in State v. Williams, 216 La. 419, 43 So.2d 780 (1950), applying established jurisprudence, and have never deviated from this holding.

In urging us to refuse to apply this well-settled principle, the state points out that one of the amendments to Article 814 (responsive verdicts), namely that enacted by Act 126 of 1973, specifically provided that this reenactment did “not apply to particular responsive verdicts for crimes committed before the effective date of this Act”; to the contrary, these were to “be governed by the law existing at the time the crime was committed.” Section 2. Because this 1973 act (a general revision of Article 814) so provided, the state infers a general principle of non-retroactivity as to subsequent amendments provided for different responsive verdicts.

We cannot find any such suggested legislative intent.

While (for whatever reason) the legislature did provide for non-retroactivity as to the procedural changes made by the 1973 act, it did not do so in any of its subsequent amendments of Article 814, which changed the responsive verdicts as to particular crimes.

Each of these enactments amended the responsive verdicts as to a particular crime or crimes, and each of these subsequent amendments repealed all prior laws in conflict therewith: Act 334 of 1975 (aggravated rape); Act 335 of 1975 (simple burglary; the present enactment); Act 336 of 1975 (various narcotic offenses); and Act 85 of 1976 (theft and attempted theft).

The general principle is that changes in criminal procedures apply to trials conducted subsequent to the date of the procedural amendments, not the procedural law in effect at the date of the crime. We find no reason here presented to deviate from this accepted rule.

One practical reason for the principle is to provide for uniform procedures as to trials conducted after the effective date of the procedural amendments. A contrary principle, if applicable, will result in the inefficiency and fragmentation of procedural law required, should it be necessary in the trial of each particular prosecution to ascertain whether the procedural law in all its facets at the time of the trial differed at the time of the crime. A contrary principle would require different procedural rules for trials held at the same criminal session, depending upon the greatly varying dates of the respective crimes prosecuted.

We find no legislative intent to provide an exception in the instance of responsive verdicts to the general principle that procedural changes apply to trials conducted subsequent to their enactment. Accordingly, we find merit to the defendant’s assignment of error no. 1, by which he complains of the trial court’s refusal to instruct the jury, in accordance with applicable law, as to the responsive verdicts it could return upon the charge for which the accused was tried.

For the reasons assigned, the conviction and sentence must be reversed, and the case remanded for a new trial in accordance with law.

REVERSED AND REMANDED.

SUMMERS, J., dissents and assigns reasons.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, Justice

(dissenting).

James Martin was tried on a charge of simple burglary of an automobile and found guilty. A multiple offender billing resulted in his being sentenced to serve eighteen years at hard labor. It is contended on this appeal that the trial judge failed to instruct the jury that a verdict of attempted simple burglary could be returned, and an error was also committed in denying the defense motion for a new trial.

After the judge’s instructions to the jury, defense counsel orally requested “instructions to the jury on attempted simple burglary” and the motion was denied.

Although the trial judge asserted in a per curiam that the requested instructions were covered in the general charge, defense counsel argues that such a result could not be reached by the jury without employing some method of interpretive analysis. A jury should not be required, the defense argument proceeds, to sift through the given charge to discover a rule of law which would be applicable.

If attempted simple burglary was a responsive verdict an instruction to that effect was mandatory and a refusal to give that instruction would constitute error requiring reversal and a new trial. La.Code Crim.Pro. art. 803. On the other hand, if attempted simple burglary was not a responsive verdict to a charge of simple burglary an instruction on attempted simple burglary was not required.

By Act 126 of 1973 Article 814 of the Code of Criminal Procedure was amended and reenacted in its entirety enumerating the specific responsive verdicts for forty-four of the most common crimes. The forty-first crime enumerated in subparagraph 41 was “simple burglary”, the responsive verdicts being “guilty” and “not guilty.”

Section 2 of Act 126 of 1973 declared that the Act “shall not apply to particular responsive verdicts for crimes committed before the effective date of this Act. Particular responsive verdicts for crimes committed before that time shall be governed by the law existing at the time the crime was committed.”

The offense involved in this prosecution was committed on August 20,1975. Therefore, at that time attempted simple burglary was not a responsive verdict to a charge of simple burglary. However, shortly thereafter by Act 335 of 1975, effective September 12,1975, subparagraph 41 of Article 814 was again amended by adding “guilty of attempted simple burglary” as a responsive verdict to a charge of simple burglary.

Thus, the question is whether at the time of the trial of this case on October 23,1975, Act 335 of 1975, effective September 12, 1975, prescribing “guilty of attempted simple burglary” as a responsive verdict to a charge of simple burglary should govern the instructions on responsive verdicts or whether Act 126 of 1973, which did not require an instruction on attempted simple burglary as a responsive verdict to a charge of simple burglary, should apply. In the first instance it would be error to deny the charge, while in the latter instance the charge would not be required.

Assuming, as both the State and defense do, that legislation prescribing responsive verdicts is procedural in nature, it may be stated as a general proposition that legislative enactments which are procedural in nature may have retroactive effect. State v. Sepulvado, 342 So.2d 630 (La.1977). However, there is no impediment to altering this rule by legislative act. As already noted, Act 126 of 1973 which amended and reenacted Article 814 in its entirety prescribed in Section 2 that its provision should not apply to particular responsive verdicts for crimes committed before the effective date of the act. Particular responsive verdicts for crimes committed before that time were to be governed by the law existing at the time the crime was committed.

While Act 335 of 1975 is silent on the retroactive effect of the single subpara-graph 41 of Article 814 which the Act amended, I feel the prohibition against retroactivity contained in Act 126 of 1973 applies to subsequent amendments to particular responsive verdicts contained in the Act of 1973. It would be inconsistent with the general concept of nonretroactivity embodied in Act 126 of 1973 to deny retroac-tivity to the 43 other subparagraphs and require subparagraph 41 to be applied retroactively. To have the effect of retroac-tivity Act 335 of 1975 should also have amended Section 2 of Act 126 of 1973. It did not do so. The result reached here prescribes a consistent principle of nonret-roactivity to all responsive verdicts contained in Article 814.

In State v. El Rito Transp. Co., 193 La. 548, 190 So. 803 (1939), we stated:

“The doctrine that when a statute has been amended it must be read as if it had been enacted originally as it reads after being amended means merely that, from and after the time when the amending statute goes into effect, the new matter, or new sections, must be substituted for the old, in reading the act. But that does not give to the amending statute a retroactive effect.”

In the absence of evidence of contrary legislative intent, this Court can presume that the legislature intended that the concept of nonretroactivity embodied in Section 2 of Act 126 of 1973, should apply to the amendments of that Act. See Sutherland, Statutory Construction, §§ 22.34, 22.35 (1972).

As a consequence, there was no prescribed responsive verdict of attempted simple burglary to a charge of simple burglary in effect at the time the offense, which is the subject of this prosecution, was committed. Instead the particular responsive verdicts for the crime of simple burglary prescribed by Act 126 of 1973 in effect at the time this offense was committed would apply. Under that Act no responsive verdict of attempted simple burglary was prescribed for a charge of simple burglary. It was not error, in my view, therefore, for the trial judge to deny a requested instruction on attempted simple burglary. La. Code Crim.Pro. arts. 801-08.

I would affirm the conviction.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Leonard BUGGAGE.
    No. 59388.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The* Grand Jury of Orleans Parish indicted the defendant with aggravated rape, a violation of LSA-R.S. 14:42. The jury found the defendant guilty as charged, and he was sentenced to death by electrocution. On appeal, defendant relies upon eight assignments of error for reversal of his conviction and sentence. Finding merit in defendant’s Assignment of Error No. 1, it is unnecessary to discuss defendant’s remaining assignments of error.

After the selection and swearing in of the petit jury and an alternate juror, one of the regular jurors informed the judge and later both the assistant district attorney and defense counsel in the presence of the judge “that she misunderstood the [voir dire] questions about capital punishment and she is opposed to capital punishment and under no circumstances could she return a verdict of guilty as charged carrying the death penalty.” [Tr. p. 2.]

The trial judge excused this juror- for cause and called an additional venireman for examination to replace the excused jur- or. Defendant objected to the voir dire of an additional juror and moved for a mistrial, presumably relying upon Article 775(6) of the Louisiana Code of Criminal Procedure which allows a judge to order a mistrial and dismiss the jury when false statements of a juror on voir dire prevent a fair trial. The judge denied the requested mistrial; decided not to reopen voir dire; excused the venireman called; and named the alternate juror, who had already been sworn, as the twelfth juror. He named the alternate in spite of his acknowledgement that neither counsel wished this action: “It’s my understanding that both counsel desire for the present for the alternate to remain in that status as of this time.” [Tr. p. 2.] At this point, defense counsel noted his objection to the denial of the mistrial.

Recently, in State v. Rounsavall, La., 337 So.2d 190 (1976), we held the identical procedure used here — replacing a regular juror under these circumstances with an alternate — to be reversible error. That decision is dispositive of the present case. There, we stated:

“The trial judge refused to order a mistrial, ruling instead that the juror Johnson be excused and that the alternate juror, Martha S. Ramie, serve in his stead. Defense counsel objected to the ruling, and the case proceeded to trial, resulting in the conviction of defendant.
U * * *
“Alternate jurors are drawn and serve to replace jurors who become unable to perform or who are disqualified from performing their duties prior to the time the jury retires to consider its verdict. La. Code Crim.Pro. art. 789. And, while the court may disqualify a prospective juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case, ibid. arts. 783, 787, once the trial has begun by the swearing of the first juror selected, ibid. art. 761, and the jurors are accepted and sworn, they may not be removed unless they are ‘incompetent to serve’, ibid. art. 796.
“Once a jury has been selected and sworn the accused has a right to have his fate decided by the particular jurors selected to try him. The phrase 'incompetent to serve’ embodied in Article 796 refers to death, illness or any other cause which renders a juror unfit or disqualified to perform his duty as prescribed. The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. State v. White, 244 La. 585, 153 So.2d 401 (1963); State v. Willie, 130 La. 454, 58 So. 147 (1912).
“This Court has previously declared that under Article 789 the jurors once selected are expected to serve, save in cases of death, illness or other cause which renders the juror unfit or disqualified to perform his duty. See La.Code Crim.Pro. art. 401. After a juror has been accepted for service, discovery of the fact that he has furnished erroneous information, lied or has a fixed opinion which would not yield to the evidence would perhaps be a basis for a prosecution for perjury or grounds for a mistrial, but these disclosures do not permit the judge to excuse a juror already sworn and designate the alternate to serve in his stead. State v. Square, 257 La. 743, 244 So.2d 200, 237 (1971).” [Emphasis ours.]

For the reasons assigned, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial consistent with law and the views herein expressed.


text:
    STATE of Louisiana v. Leonard BUGGAGE.
    No. 59389.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty. Louise S. Korns, Asst. Dist. Atty., for appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to imprisonment at hard labor for a period of twenty (20) years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212, rehearing denied, 429 U.S. 890, 97 S.Ct. 248, 50 L.Ed.2d 173 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974, rehearing denied, 429 U.S. 890, 97 S.Ct. 248, 50 L.Ed.2d 173 (1976); State v. Sledge, La., 340 So.2d 205 (1976); State v. Lee, La., 340 So.2d 180 (1976).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Robert HALLAL.
    No. 59459.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Robert Hallal was charged with the armed robbery of an employee of McKenzie’s Bakery located on Elysian Fields and Robert E. Lee in New Orleans. After a jury trial, a verdict of guilty as charged was returned. Pursuant to R.S. 15:529.1, the trial court found Hallal to be a habitual offender, and sentenced him to fifty years at hard labor without benefit of parole or probation and without diminution of sentence for good behavior, in accordance with the provisions of R.S. 15:571.3. On appeal defendant relies on two assignments of error.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying his motion for a new trial which was based on the allegation of error in denying a motion to continue.

The motion to continue, filed at the commencement of trial, alleged, among other things, that two witnesses were absent who were vital to the defense.

The robbery occurred about dark on July 1, 1975. Between 12:00 and 1:00 p.m. on July 4, the victim of the robbery, Marilyn Dick, again saw the robber at a Lil General Store a few blocks from the scene of the robbery. Miss Dick testified: “I was pulling out of a parking lot, at the Lil General Store, he was pulling in. I went back in to be sure it was the same man and it was. I got scared and did not know what to do so I went home and called Deborah, (an employee of McKenzie’s, and the other eyewitness to the robbery) and I told her I saw him and she called the police.”

Two witnesses testified on behalf of the defendant — Debbie McQuillis and Linda Hallal. Debbie was the defendant’s girl friend, with whom he was living in July. Their apartment was not over a couple of blocks from the Lil General Store. Neither knew the whereabouts of the defendant at the time of the robbery, but both testified that they were with him at the apartment where he and Debbie McQuillis lived between 12:00 and 1:00 p.m. on July 4, and that the defendant did not leave the apartment at the time when the victim testified that she saw him at the Lil General Store. The two “missing witnesses,” whose absence was the basis of the motion for continuance and the motion for recess, were Rickey McQuillis and Sheryl Brown. Rickey was the brother of Debbie McQuillis and Sheryl was his girl friend.

The record does not disclose the importance of the identification of July 4. The information that the victim identified the defendant was relayed to the police; the effect of the identification is not disclosed. The next chronological step in the proceedings, as presented in the record, was a visit by the police to the victim’s house on August 12, 1975. The police showed a photograph of six men, and Miss Dick identified the picture of the defendant as the perpetrator of the robbery. Presumably, this identification resulted in the filing of the bill of information against the defendant on September 4.

Defendant argues that the testimony of the absent witnesses would tend to weaken the identification testimony of the two eyewitnesses to the robbery, by proving that the victim must have been mistaken in her contention that she saw the defendant between 12:00 and 1:00 o’clock on July 4 at the Lil General Store.

The argument is tenuous. The record does not disclose that the motions for continuance or to recess were seriously made or argued. The written motion does contain the names of the two missing witnesses. The defendant’s girl friend, in her testimony near the close of the trial, stated that her brother Rickey McQuillis was “probably at my house now,” and that Rickey’s girl friend Sheryl was “now at Mississippi-Southern Railway Co.” The record shows no effort to subpoena the two witnesses, who were easily available if wanted by defendant.

The assignment is without merit.

Assignment of Error No. 2

Defendant alleges the trial court erred in granting the State’s motion to deny the defendant the advantage of earning good time under R.S. 15:571.3(0) which provides, in pertinent part:

“No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of . armed or simple robbery . . . and who has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.”

Defendant first argues that. this provision deprives him of freedom without due process of law in that the discretionary element of this statute allows arbitrary application by the trial judge and provides potential for abuse. This court has previously recognized that the award of good time is not a federal constitutional right. It is rather a matter of State law, the purpose of which is to serve as a disciplinary tool for prison officials. McCormick v. Hunt, 328 So.2d 140 (La.1976). Furthermore, the discretion afforded the sentencing judge is typical of criminal statutes that allow the sentence to be fixed within a range of years. One example is the armed robbery statute with which defendant was initially charged, the sentencing provision of which provides:

“Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years . . .” R.S. 14:64(B).

Defendant further alleges that the effect of the denial of good time increases defendant’s sentence by one-third over the majority of inmates who are granted good time, and thus would constitute cruel and unusual punishment. The multiple offender statute, R.S. 15:529.1, under which defendant was sentenced, has been held repeatedly not to impose cruel and unusual punishment. State v. Linkletter, 345 So.2d 452 (La.1977); State v. Williams, 326 So.2d 815 (La.1976). There is no merit to the contention that R.S. 15:571.3(C) violates either Art. 1, § 20 of the Louisiana Constitution of 1974 or the Eighth Amendment to the Federal Constitution.

For the reasons assigned, the conviction and sentence are affirmed.


text:
    Nell Holden GOLSON v. James E. GOLSON.
    No. 59537.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Robert R. Rainer, Baton Rouge, for plaintiff-applicant.
    John R. Olds, Baton Rouge, for defendant-respondent.
   SANDERS, Chief Justice.

Mrs. Nell Holden Golson filed a rule to collect the arrearage of alimony pendente lite due her from a judgment of separation rendered in the Family Court of East Baton Rouge Parish. Mr. Golson filed an exception of no right or cause of action based on a divorce he had obtained in Tennessee. The Family Court, recognizing the Tennessee divorce decree but declining to give it immediate effect, overruled his exception and granted judgment in favor of Mrs. Gol-son. The Court of Appeal, partially reversing the Family Court, held that the Tennessee judgment should be recognized and given effect on the date presented to a Louisiana court in any type of proceeding. 341 So.2d 1229 (1976). On Mrs. Golson’s application, we granted writs to review the Court of Appeal judgment. La., 344 So.2d 673 (1977).

We are called upon to determine the duration of Mrs. Golson’s alimony pendente lite. In Louisiana, alimony pendente lite is defined as support for the wife during pendency of suit for separation or divorce; this support terminates upon final divorce. LSA-C.C. arts. 148, 160; White v. Morris, 236 La. 767, 109 So.2d 87 (1959); Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952); Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950).

The parties have stipulated the following facts pertinent to the resolution of the case:

“1. On April 15, 1975, a Judgment of Separation was rendered by [the Family Court, Parish of East Baton Rouge] in favor of James E. Golson, granting him a judgment of separation on his Reconven-tional Demand filed herein on December 9, 1974.”
U * * *
“5. On August 5, 1975 James E. Gol-son obtained a Judgment of Divorce in the matter entitled ‘James E. Golson vs. Nell Rose Holden Golson’ on the docket of the Court of General Session in and for the County of Hardin, State of Tennessee.
ti * ‡ $
“7. Nell Holden Golson was not represented by counsel in said Tennessee proceedings; Nell Holden Golson did not make an appearance either personally or through counsel in said proceedings; she did not waive service of process or her right to be present or represented in said proceedings; she was not present in the State of Tennessee at the time said suit was filed nor has she been present in the State of Tennessee since the filing of said suit; the Court in Tennessee did not appoint an attorney at law to represent her therein.
“8. At all times pertinent to this Rule, Nell Holden Golson has continuously resided in the community-owned home at 3135 Woodcrest drive, Baton .Rouge, Louisiana, and James E. Golson knew of her residence and whereabouts at the time the Tennessee suit was filed and at the time the Tennessee Judgment of Divorce was rendered and signed.
“9. The Tennessee Judgment of Divorce was obtained ex parte by James E. Golson, and by default.
“10. The Tennessee Judgment of Divorce makes no mention of alimony pen-dente lite or other maintenance and support obligation on the part of James E. Golson, but is silent as to that issue.
“11. The only service made upon Nell Holden Golson in the Tennessee proceedings was ‘constructive service,’ i. e., an advertisement appearing in newspaper published in the City of Savannah, Tennessee, the city in which the Tennessee Court is situated, for a period of four (4) consecutive weeks.”

In essence, the issue presented is the effect of the Tennessee divorce decree on Mrs. Golson’s right to alimony pendente lite.

Article 4, Section 1 of the United States Constitution provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Pursuant to this grant of authority, Congress enacted the following statute:

“The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory, or Possession thereto.
“The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
“Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” [Emphasis supplied.] 28 U.S.C. 1738.

Under the statute, therefore, Louisiana should give the Tennessee divorce the same effect that Tennessee would give it. New York v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947).

From the Tennessee Supreme Court decision in Baggett v. Baggett, Tenn., 541 S.W.2d 407 (1976), it is clear that the divorce judgment here would be given no effect in Tennessee. Rather, the court would decree it to be null because of a denial of due process to the absent wife.

The relevant facts in Baggett v. Baggett, supra, are as follows:

Mr. Baggett obtained a Tennessee divorce from his wife, Mary. As alleged in his petition, Mary was a Florida resident. The only notice of the filing of the suit was publication in a county newspaper as provided by T.C.A. § 21-218. Mary never received actual knowledge of the suit. The court granted Mr. Baggett a divorce. Thereafter, he remarried. Shortly after this marriage, Mr. Baggett died. Subsequent to his death, Mary received notice of the divorce.

Three years after the divorce, Mary filed suit to nullify the Tennessee divorce judgment, and to be recognized as Mr. Baggett’s widow. Such a recognition would entitle her to Veterans’ benefits. See 10 U.S.C. 1072(2)-(2)(B). The Tennessee Supreme Court, after resolving a threshold issue of justiciability, held:

“. . . that the failure of the Chancery Court in the divorce case to direct a notice of the divorce proceeding to Mary Baggett at her last known mailing address in Miami, Florida, deprived her of the due process right to receive notice and have an opportunity to be heard, since, as found by both lower courts, her husband, the plaintiff in the divorce action, knew or easily could have ascertained her mailing address in Miami.”

At the time both the Baggett and Golson divorce decrees were rendered, Tennessee law provided that the Court was to give additional notice by mail if the address of the non-resident party was known or could be easily ascertained. T.C.A. § 36-805. Tennessee Code Annotated § 21 — 218, however, provided that the Court’s failure to give the notice would not invalidate the proceedings. In Baggett, the Tennessee Supreme Court held T.C.A. § 21 — 218 unconstitutional insofar as it “may be considered to relieve the Court of the obligation to give such notice to a non-resident defendant. . . . ”

As previously observed, the notice of the divorce suit here was only published in a Tennessee County newspaper. The publication did not afford Mrs. Golson actual notice. In fact, she had no actual notice of the divorce proceedings until after the court rendered the final divorce. Both pri- or to and at the final judgment, Mr. Golson knew that Mrs. Golson was residing in the community-owned home in Baton Rouge, Louisiana. Indeed, Mr. Golson set forth his wife’s correct address in his petition to the Tennessee court, but the court failed to give her the notice required in the Tennessee statute.

Inasmuch as the Tennessee divorce would have no effect in Tennessee, where it was rendered, it has no effect in Louisiana upon Mrs. Golson’s right to alimony pendente lite.

In oral argument to this Court, both parties conceded that Mr. Golson later obtained a decree of final divorce from a Louisiana court of competent jurisdiction. As alimony pendente lite ceases upon a decree of final divorce, we must remand the case to the Family Court for the cumulation of alimony in light of the Louisiana divorce decree.

For the reasons assigned, the judgment of the Court of Appeal is reversed, annulled, and set aside, and the case is remanded to the Family Court of the Parish of East Baton Rouge for further proceedings in accordance with law and the views herein expressed.

      . Due to our finding the foreign divorce invalid under Tennessee law, a resolution of the issue of whether Mr. Golson properly presented his judgment for recognition in a Louisiana court is unnecessary. LSA-C.C.P. art. 2541. Neither do we reach the question of the applicability of the divisible divorce doctrine treated by the Court of Appeal. See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).