author: BOARDMAN, Chief Judge.

text:
    CLOVER INTERIOR SYSTEMS, INC., a Florida Corporation, Appellant, v. GENERAL DEVELOPMENT CORP., a Foreign Corporation, and John Gossett Construction Co., Inc., a Florida Corporation, Appellees.
    No. 77-1278.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.

      John J. Dulmer, Jr., of Snyder & Dulmer, Venice, for appellant.
    William M. Hereford and Wayne C. Hall, of Strode, Hereford & Taylor, Sarasota, for appellee General Development Corp.
   BOARDMAN, Chief Judge.

Appellant/plaintiff Clover Interior Systems, Inc. (Clover) seeks review of a final judgment entered pursuant to a directed verdict entered in favor of appellee/defend-ant General Development Corp. (General).

Appellant, a custom cabinet subcontractor, had contracted in the spring of 1974 with appellee/defendant John Gossett Construction Co. (Gossett), a general contractor, to manufacture and install custom kitchen cabinets in houses being constructed for General, a large developer of single-family houses. Gossett failed to pay Clover for labor performed and materials furnished during the months of July, August, and September, 1974, and Clover refused to continue work in mid-September. Clover alleged that Gossett owed it approximately $42,000 at that time for work it had completed. On September 21 Walter Puzio, director of operations for General, met with Joseph DeFalco, president of Clover, and paid him the sum of $14,493.97 for pre-Sep-tember 21 work. General subsequently made two additional payments to Clover for pre-September 21 labor and materials. General refused Clover’s demand for payment of the balance in the sum of $19,-901.37.

At the conclusion of appellant’s case General moved for a directed verdict. The motion was granted. The trial court found, among other things, that there was an oral agreement made on September 21, 1974 between Clover and General for payment of the prior existing debt of Gossett and that the promise was unenforceable under the statute of frauds. Section 725.01, Florida Statutes (1973).

On reviewing a directed verdict the appellate court is required to observe the well settled rule that a motion for directed verdict should be cautiously granted and that in considering such a motion all inferences of fact should be considered most strictly in favor of the nonmoving party. See 2 Fla.Jur. Appeals § 302 (1973). The single issue for our determination is whether there was competent, sufficient evidence introduced by appellant from which the jury could have found that the oral contract entered into between Clover and General was a direct and original promise of General to pay Clover for work completed prior to September 21 as appellant contends. If the agreement was a direct and original promise, it would not be controlled by the statute of frauds and would be enforceable if otherwise valid. Jim & Slim’s Tool Supply, Inc. v. Metro Communities Corp., 328 So.2d 213 (Fla. 2d DCA 1976). If on the other hand the agreement was a collateral promise of General to pay Clover in the event that Gossett did not do so as appellee contends, it would be unenforceable as violative of the statute of frauds.

Upon review of the evidence presented we hold that it was error to direct a verdict in favor of appellee because appellant introduced sufficient, competent evidence upon which a jury could find in its favor on this issue. Of course, General may at trial be able to prove otherwise, but the matter should be submitted for jury resolution.

In the event that on remand a new trial is held, we point out that the trial court was correct in granting General’s motion in limine to exclude testimony from any party as to the reason for Gossett’s failure to pay Clover.

The judgment appealed is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

HOBSON and RYDER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gregory GRIMMETT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1293.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Gregory Grimmett appeals his conviction of attempted burglary and his enhanced sentence as an habitual felony offender. We affirm the judgment, but remand for resentencing because the trial court failed to make the required finding that an enhanced sentence was necessary for the protection of the public from further criminal activity by appellant.

Following appellant’s jury trial and conviction and with due notice to appellant, the trial court held a hearing pursuant to SecT tion 775.084, Florida Statutes (1975) to determine whether appellant should be sentenced as an habitual felony offender. A deputy clerk authenticated the informations and judgments and sentences on four burglary charges against appellant to which he had pled guilty on May 9, 1975 and for which he received concurrent three-year prison sentences. The clerk further testified that there was nothing in the files indicating that any of these convictions had been set aside or that appellant had been pardoned for any of these offenses. The trial court then found appellant to be an habitual felony offender and imposed an enhanced sentence of ten years in prison.

At no time, either at sentencing or in its written order, did the trial court make a finding that the enhanced sentence was necessary to protect the public from further criminal activity by appellant. Such a finding is mandated by Section 775.084(4)(b), Florida Statutes (1975); unless such a finding is made, an enhanced sentence may not be imposed under Section 775.084, Florida Statutes (1975). Section 775.084(4)(c), Florida Statutes (1975); see Phipps v. State, 352 So.2d 102 (Fla. 1st DCA 1977). The trial court erred when it failed to make such a finding.

Appellant further complains that no evidence justifying an enhanced sentence was adduced by the state, asserting that the production of such evidence in open court is a prerequisite to imposition of an enhanced sentence under Section 775.084, Florida Statutes (1975). Our sister court so held in Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976), stating at 290-291:

It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084, F.S. 1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled. . . .We think the invocation of [habitual offender or recidivist] statutes requires the evidence relied upon by the trial court for the enhanced sentence be produced in open court so that the defendant has an opportunity to rebut the state’s contention. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

We agree with this statement insofar as it requires all evidence relied upon by the court to justify an enhanced sentence to be produced in open court. We disagree, however, with appellant’s contention that, in every case, evidence in addition to that of the defendant’s prior convictions must be produced and relied on before an enhanced sentence may be imposed. In some cases, at least—and this case might well be one of them—a defendant’s prior record alone may be sufficient to'justify a finding that he is likely to engage in further criminal activity upon his release from any incarceration imposed. See McClain v. State, No. 76-2055 (Fla. 2d DCA, February 22, 1978). In any event, the trial court should, if it finds an enhanced sentence necessary, state the basis for its finding.

No error at trial having been made to appear, appellant’s conviction is affirmed. The sentence is vacated and the cause remanded for a new sentencing hearing at which appellant shall be present. We would also add that any new sentence should specify the credit time to which appellant is entitled, as required by Section 921.161(1), Florida Statutes (1975), and Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975), and the phrase “at hard labor” should be deleted from the sentence. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

BOARDMAN, C. J., and GRIMES and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Allen Lee COOK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1795.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant Cook was convicted and sentenced for the crimes of kidnaping, sexual battery and aggravated assault. He contends that the trial court erred in refusing to hold a hearing pursuant to Section 917.-18, Florida Statutes (1977) after it had previously entered an order finding probable cause to believe appellant to be a mentally disordered sex offender and providing for his examination by two psychiatrists. We agree and reverse.

After appellant was charged with the aforementioned crimes, he pleaded nolo con-tendere to all counts pursuant to a stipulation with the state wherein both parties agreed to request the court to hold a hearing to determine whether the appellant was a mentally disordered sex offender.

The court then entered an order finding that there was probable cause to believe the appellant to be a mentally disordered sex offender. In the order the trial judge provided that the appellant would be examined by two psychiatrists. However, after reviewing the reports of the examining physicians the judge refused to hold a hearing as required by Section 917.18 and sentenced appellant thereafter.

Section 917.18 provides in part:

Procedure for hearing. — The court shall hold a hearing to determine whether the defendant is a mentally disordered sex offender. . . . (Emphasis added.)

When the process for committing appellant under Chapter 917 was initiated by the trial court, its action amounted to certifying the appellant for a hearing pursuant to Section 917.14(1), Florida Statutes (1977).

Although in certain cases certifying a defendant for hearing to determine whether he is a mentally disordered sex offender is permissive, once a person has been so certified, then the language of Section 917.-18 is mandatory. See Dorman v. State, 279 So.2d 854 (Fla.1973); Hobbs v. Cochran, 143 So.2d 481 (Fla.1962).

As this was not accomplished here we feel that error was committed and thus we reverse and remand for proceedings not inconsistent with this opinion.

OTT, A. C. J., and DANAHY, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    TRAVELERS INSURANCE COMPANY and Peter Vassey, Appellants, v. Anna RODRIGUEZ, as Administratrix of the Estate of Gilletto Rodriguez, Deceased, Appellee.
    No. 77-1968.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    Benjamin H. Hill, III and Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
    John H. Piccin, of Pattillo, MacKay & McKeever, P. A., Ocala, for appellee.
   GRIMES, Acting Chief Judge.

This interlocutory appeal questions the validity of an order striking the appellants’ pleadings and granting the appellee a default judgment on liability and of a subsequent order denying the appellants’ motion to set aside the default judgment.

The appellee (plaintiff) filed a wrongful death action against the appellants (defendants) arising out of an automobile accident. After the case was at issue on allegations of negligence and a defense of comparative negligence, the court entered and served on counsel for all parties a pretrial order setting the case for pretrial conference and jury trial. The first page of the order included a warning in large red letters stating, “caution read carefully,” and bearing the stamp of the trial judge. Paragraph 9 of the order provided that the failure of any party or counsel to strictly adhere to the order shall be grounds for the court to dismiss the case and strike the pleadings or to take such other action as justice requires. Paragraph 4 required that the parties file, and furnish a copy to opposing counsel, a pretrial statement at least six days before the pretrial conference scheduled for Monday, October 31, 1977, in Inverness, Florida. At the time of the pretrial conference, the defendants’ attorney tendered a pretrial statement but announced that through inadvertence he had failed to file or to furnish the statement six days in advance as required by the order. On its own motion the court struck the defendants’ pleadings and entered a default judgment against the defendants on liability.

Three days later the defendants filed a motion to set aside the default judgment accompanied by an affidavit of defendants’ counsel. At the hearing defendants’ counsel explained that he had first realized that he had failed to timely furnish the pretrial statement on Friday, October 28, 1977. He thereupon telephoned the plaintiff’s counsel and discussed in detail the matters which he intended to include in his pretrial statement. In the course of this telephone conversation counsel for the parties were able to stipulate on certain issues with respect to the trial. Defendants’ counsel explained that in Hillsborough County where he normally practices there was no requirement to submit a pretrial statement in advance, but he did not deny the fact that his office had received the order which required the pretrial statement to be submitted prior to the conference. In arguing that his clients had a meritorious defense to the action, he pointed out that the investigating patrolman had not charged the defendant driver as a result of the accident.

The judge conceded that the plaintiff had not been prejudiced by defense counsel’s failure to timely file the pretrial statement but maintained that it was necessary for him to penalize the defendants in this manner in order to be able to enforce compliance with an expeditious pretrial procedure. The motion to set aside the default was denied.

The parties devote much of their argument to whether the court has the authority to strike a party’s pleadings for his counsel’s failure to follow an order for pretrial compliance. Fla.R.Civ.P. 1.200 dealing with pretrial procedure refers only to the striking of a party’s pleadings upon the failure of his attorney to attend the pretrial conference. Nevertheless, we are unwilling to hold that the court cannot strike a party’s pleadings for the wilful and flagrant failure of his attorney to comply with this or any other legitimate order. We do hold that under the facts of this case, defense counsel’s failure to abide by the order for pretrial compliance did not warrant such a severe sanction.

While there are no Florida decisions directly on point, the tenor of those cases which have some applicability is that the sanction imposed must be commensurate with the offense. Thus, in Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971), a judgment for the plaintiff was entered at a pretrial conference for the failure of the defendant’s counsel to appear because his secretary had not noted the date in his diary book. While recognizing that the applicable rule of civil procedure authorized such a sanction, the court vacated the judgment and said:

We cannot condone counsel’s failure to comply with an order of the court for a pretrial conference; but neither can we approve the entry of a final judgment for such failure where the record is devoid of any evidence reflecting a persistent refusal to attend or a wilful disregard of an order of court. The pretrial conference was designed to expedite the disposition of litigation and not to serve as a substitute for a trial on the merits. The failure of counsel to attend while subjecting him to judicial sanctions ought not in this case serve as a predicate upon which to punish the litigant. .

Id. at 381.

Referring to the failure of counsel to appear for a pretrial conference in Beasley v. Girten, 61 So.2d 179 (Fla.1952), our supreme court said:

The court unquestionably has power to discipline counsel for refusal or failure to meet the requirements of the rule. Such refusal may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should ordinarily be imposed on counsel rather than on the litigant. Dismissal ‘with prejudice’ in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel.
We are not unmindful of the rule that counsel is the litigant’s agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal ‘with prejudice’ would in effect punish the litigant instead of his counsel. Although persistent refusal to attend might, in the interest of justice, require a dismissal without prejudice, we think for the reasons given that such dismissal upon the first infraction is too severe. It is well established that the district court has the authority to dismiss or to enter default judgment, depending on which party is at fault, for failure to prosecute with reasonable diligence or to comply with its orders or rules of procedure. While the authority is reiterated in some of the Federal Rules of Civil Procedure for particular situations, the power is one inherent in the courts ‘in the interest of the orderly administration of justice.’ It may be exercised sua sponte under proper circumstances. The exercise of the authority is discretionary, and is subject to review for abuse of discretion. Dismissal of an action with prejudice and entry of judgment by default are drastic remedies which should be used only in extreme situations, as the court has a wide range of lesser sanctions. .

Id. at 180, 181. See also Goldman v. Tabor, 239 So.2d 529 (Fla. 2d DCA 1970).

The federal courts, which follow a pretrial procedure much like ours, have consistently taken the same position. Thus in Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968), a case arising in Florida, the court reversed an order dismissing the plaintiff’s claim with prejudice for his counsel’s failure to abide by the orders and rules of the court regulating pretrial procedure. The court stated:

Id. at 887, 888. See Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir. 1961), and Gamble v. Pope & Talbot, Inc., 191 F.Supp. 763 (E.D.Pa.1961), both of which involved the failure to fully comply with orders for the filing of pretrial statements.

The order striking the defendants’ answers and entering a default against them on liability is hereby set aside. The case is remanded for further proceedings.

SCHEB and DANAHY, JJ., concur.


text:
    Julia ADAMS, Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. HH-314.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Stephen F. Hanlon of Bay Area Legal Services, Inc., Tampa, for petitioner.
    James G. Mahorner, Tallahassee, for respondent.
   PER CURIAM.

The prayer of the petition for review is DENIED.

BOYER, Acting C. J., SMITH, J. and BLACK, SUSAN A., Associate Judge, concur.


text:
    Carol Lynn RUTLEDGE, Personal Representative of the Estate of Thomas Gay Rutledge, Deceased, Appellant, v. Patricia Ann RUTLEDGE, Appellee.
    No. 77-1432.
    District Court of Appeal of Florida, Second District.
    April 14, 1978.

      N. Burton Williams of Law Offices of Claude M. Harden, Jr., Lakeland, for appellant.
    Michael D. Martin of Martin & Martin, Lakeland, for appellee.
   GRIMES, Acting Chief Judge.

The personal representative appeals from a final judgment awarding appellee $20,000 from the estate of her deceased ex-husband.

Thomas Gay Rutledge and Patricia Ann Rutledge (appellee) were formerly husband and wife. Their marriage was dissolved on February 6, 1974. The final judgment of dissolution contained the following provision:

8. That pursuant to the agreement of parties, the Respondent, THOMAS GAY RUTLEDGE, shall purchase a parcel of real estate agreeable to the Petitioner, PATRICIA ANN RUTLEDGE, and shall construct thereon by June 1, 1974, a new three-bedroom block home fully furnished, the total cost of said property, home and furnishings not to exceed $20,-000.00.

Following Mr. Rutledge’s death on March 10, 1977, appellee filed a claim against his estate demanding that she be provided with the home or be paid $20,000. The personal representative of the estate filed an objection to the claim. Appellee then sued the estate for $20,000.

At the trial a certified copy of the final judgment was introduced into evidence by the appellee without objection. The only witness to testify at the trial was the appel-lee. She was permitted to testify over the appellant’s objection that Mr. Rutledge had not supplied her the house as required by the final judgment.

The appellant argues that the appellee’s testimony with respect to her former husband’s failure to carry out the provisions of the judgment was inadmissible under Section 90.05, Florida Statutes (1975), commonly known as the Dead Man’s Statute. Appellant cites authority for the proposition that testimony of an interested witness concerning the nonpayment of an obligation of or to a deceased person constitutes a “transaction” within the meaning of the Dead Man’s Statute. See Stebnow v. Goss, 165 So.2d 251 (Fla. 2d DCA 1964); Broward National Bank of Ft. Lauderdale v. Bear, 125 So.2d 760 (Fla. 2d DCA 1961). As we see it, it is unnecessary to reach the question of whether the appellee’s testimony was barred by the Dead Man’s Statute because the final judgment by itself carried with it a presumption that the obligations contained therein remained outstanding.

While no Florida cases have been cited to us for the proposition, the rule has been established in other jurisdictions that in an action on a judgment there is a rebut-table presumption that the judgment remains in full force and unsatisfied. Daniel Drug Co. v. Collier Drug Co., 207 Ala. 308, 92 So. 895 (1922); Mansfield v. Hinckle, 81 Ind.App. 6, 139 N.E. 700 (1923). The plaintiff does not bear the burden of proving that the judgment has not been satisfied. Talkington v. Schmidt, 219 Ark. 333, 242 S.W.2d 150 (1951); Sampson v. Conlon, 100 N.H. 358, 126 A.2d 250 (1956). This is consistent with Fla.R.Civ.P. 1.110(d) which characterizes payment as an affirmative defense.

While the judgment in this case directed that something be done rather than ordered an amount of money to be paid, we see no reason to apply a different principle. Once the judgment was introduced into evidence it carried with it a presumption that paragraph 8 had not been performed. The appellee had established a prima facie case. Since no evidence was presented to prove that the obligation had been carried out, the appellee’s testimony concerning nonperformance was unnecessary to the determination of the case.

This case is analogous to the recent decision of Jacobs v. Becks, 355 So.2d 1241 (Fla. 1st DCA, 1978), in which the plaintiff sued a decedent’s estate on two promissory notes executed by the decedent before his death. The notes were introduced into evidence, but neither party presented evidence of payment or lack of payment. The trial court denied recovery because the record was “void of any evidence of nonpayment.” The district court of appeal held that the plaintiff’s possession of the uncancelled notes at the time of the trial created a prima facie case for recovery, and that upon the defendant’s failure to plead or prove payment, the plaintiff was entitled to judgment.

While the presumption in that case rested upon the plaintiff’s possession of uncan-celled notes, whereas the presumption here is based upon proof of a judgment of a court of record, the cases are otherwise similar. As in Jacobs, the appellant neither pled nor proved performance of the obligations of paragraph 8. Since Mr. Rutledge did not furnish the appellee with the house prescribed by the judgment, we believe the court was warranted in entering a judgment against his estate for the entire $20,-000.

AFFIRMED.

SCHEB and OTT, JJ., concur.


text:
    Russell Lawrence YANKOW, Appellant, v. Helen Elizabeth YANKOW, Appellee.
    No. 77-1489.
    District Court of Appeal of Florida, Second District.
    April 14, 1978.
    John W. Campbell, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    F. Wallace Pope, Jr., of Johnson, Blakely, Pope & Bokor, Clearwater, for appellee.
   PER CURIAM.

The husband appeals from a final judgment of dissolution in which he was ordered to pay the wife $5,000 lump-sum alimony when he receives his inheritance of approximately $45,000 from his late father’s estate. The judgment further provided the husband is to pay the wife $50 per week until the estate is settled, at which time he must pay the balance still owing on the lump-sum award. Keeping in mind that the standard to be applied here is the wife’s need and the husband’s ability to pay, we find that the record demonstrates that the trial court did not abuse its discretion in making its award. Therefore we affirm. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976).

We note that the trial court has reserved jurisdiction to review the award after a period of six months from the date of final judgment. Though the record reveals the husband has sufficient income and savings to allow him to make the $50-per-week payments in the near future, this obligation may become burdensome if the estate does not close expeditiously. We are confident that upon proper petition the trial judge will make an adjustment of the requirement for weekly payments if the husband demonstrates an inability to make them.

Affirmed.

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


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. William Joseph OPITZ, Appellee.
    No. 77-2064.
    District Court of Appeal of Florida, Second District.
    April 14, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   SCHEB, Judge.

In this appeal the state contends the trial court erred in refusing to impose upon defendant Opitz the mandatory three-year minimum sentence under Section 775.087(2), Florida Statutes (Supp.1976). We find the state’s contention has merit.

In October 1976 defendant was charged with committing robbery with a firearm. A year later he entered a plea of guilty as charged. The factual basis presented to the court showed that defendant had robbed the Spudnut Donut Shop in Ft. Myers, and that while doing so he had displayed a pistol. The state attorney requested that the sentencing order reflect that defendant was being sentenced pursuant to Section 775.087(2). The trial judge refused the request, opining, “I don’t buy that statute. I don’t think it’s constitutional; never have.” The trial judge subsequently sentenced defendant to a term of five years in the state prison. The sentencing order did not mention Section 775.-087(2), nor otherwise reflect that defendant would not be eligible for parole until he had served three years. This appeal by the state ensued.

Any question as to the constitutionality of Section 775.087(2) was dispelled by the Supreme Court of Florida in Sowell v. State, 342 So.2d 969 (Fla.1977), wherein the court stated:

[Wjhere a sentence is one that has been established by the legislature and is not on its face cruel and unusual, it will be sustained when attacked on grounds of due process, equal protection, or separation of power theories. We do not find the mandatory three-year sentence provision to be cruel or unusual. (Citations omitted.)

From our reading of the record in the instant case we can see no valid reason why the trial judge refused to apply the statute, which clearly requires a defendant convicted of robbery while carrying a firearm to serve a minimum of three years in prison.

Accordingly, this cause is remanded to the trial court with directions to amend the sentencing order to reflect that defendant must spend a minimum of three years in prison in accordance with Section 775.-087(2). Defendant need not be present at the revision of the sentence.

HOBSON, A. C. J., and GRIMES, J., concur.

      . In view of Sowell v. State, 342 So.2d 969 (Fla.1977), the trial court’s ruling as to constitutionality is merely colorable and presents no substantial constitutional issue. Therefore, appellate jurisdiction is properly in this court rather than the supreme court. Art. V, § 3(b)(1), Fla. Const.; Simmons v. State, 354 So.2d 1211, 1212 (Fla. 1978) (finding no substantial constitutional issue because the constitutionality of the statute there in question had previously been upheld in Riddle v. State, 345 So.2d 1073 [Fla.1977]); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439, 441-42 (Fla.1959). See also Massachusetts Bonding & Ins. Co. v. Bryant, 189 So.2d 614 (Fla.1966) Daytona Beach Racing & Recreational Facilities District v. Volusia County, 355 So.2d 175, 176 (Fla. 1st DCA 1978).


text:
    Henry P. PATTERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. GG-355.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   PER CURIAM.

The record and briefs filed in this cause have been examined. The appellant/defendant has failed to demonstrate reversible error. It follows that the verdict of the jury finding him to be guilty of first degree arson and the judgment and sentence thereafter imposed upon him by the court is

AFFIRMED.

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


author: BOOTH, Judge.

text:
    Mary Katherine McCARTHY et al., Appellants, v. ESTATE of Joseph E. CAUSEY, Deceased, Appellees.
    No. HH-122.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    John Paul Howard, Jacksonville, for appellants.
    Berrien Becks, Jr., Daytona Beach, Thor-wald J. Husfeld, DeLand, McKenney J. Davis, Jacksonville, Cynthia S. Tunnicliff and Sam Spector, of Spector & Tunnicliff, P. A., Tallahassee, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Volusia County, denying petition for revocation of probate of will. The order sought to be reviewed finds that the decedent, Joseph E. Causey, was competent and of sound mind at the time the will was executed; that the will was not procured through undue influence and states:

“The Court is doubtful that a confidential relationship existed between the Respondents and JOSEPH E. CAUSEY prior to April 13, 1976, the date the Will of JOSEPH E. CAUSEY was executed. However, if said confidential relationship did exist between JOSEPH E. CAUSEY and the Respondents prior to April 13, 1976 and if any presumption of undue influence arose as a result of said confidential relationship, the Respondents presented a reasonable explanation for their roles in the affairs of JOSEPH E. CAUSEY, pri- or to the execution of his Will, and prior to his death, and specifically in the preparation of the Will of JOSEPH E. CAU-SEY.”

We have reviewed the record in the case and after consideration of the briefs and arguments of counsel, hold that the findings and conclusions of the trial court are supported by the evidence and the court has not misapprehended the legal effect of the proof.

The deceased was some 83 years of age at the time he executed his will. He suffered some of the infirmities that usually accompany advancing age, but his will was his own action, ah action which comported entirely with his previous statements concerning his affection for, and appreciation of the friendship of, “the boys” as he referred to the appellees herein. Under the circumstances he was clearly entitled to leave his property to appellees, rather than to his distant relatives.

In Marston v. Churchill, 137 Fla. 154, 187 So. 762 (1939), the Supreme Court held that kindness or solicitude on the part of the beneficiary would not be equated with undue influence, and affirmed the validity of the will leaving the bulk of the estate to one who had befriended the testatrix in her declining years, stating:

“The right of designating legatees is highly valuable, particularly to the aged, and should not be considered lightly. It was but natural for testatrix to have favored one who contributed to her happiness and comfort in her declining years over the children of a half sister who had shown her scant attention . . ”

Accordingly, the judgment below is AFFIRMED.

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


author: MILLS, Acting Chief Judge.

text:
    In re FORFEITURE OF the following described property, 1972 MERCURY, SERIAL NO. 2H11H539168, FLORIDA LICENSE TAG # 2-114609. James Samuel BROWN, Appellant, v. STATE of Florida, Appellee.
    No. HH-287.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Donald G. Nichols of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander, Michael H. Davidson, Asst. Attys. Gen., for appellee.
   MILLS, Acting Chief Judge.

Brown appeals from a judgment ordering the forfeiture of his automobile to the Jacksonville Beach Police Department pursuant to Sections 943.41-44, Florida Statutes (1975). Brown contends that a forfeiture under Sections 943.41-44 is permitted only upon a showing that the automobile was being used in a drug operation or was significantly involved in a criminal enterprise. The State contends this case is controlled by this Court’s decision in Grimm v. State, 305 So.2d 252 (Fla. 1st DCA 1974).

A Jacksonville Beach police officer received information from a confidential informant that Brown was in possession of marijuana. The officer went to Brown’s home where he saw Brown and two men get into the car. The officer followed the car and when it stopped, identified himself and asked if he could search the car. Brown consented to the search. The officer found eight one-ounce baggies of marijuana in the trunk. Brown denied they were his. The automobile was seized pursuant to Section 943.42. The State filed a petition for rule to show cause alleging Brown used the car in violation of Section 943.42. Brown answered denying he used the car in violation of Section 943.42.

The evidence adduced at the hearing was as outlined above. No evidence was adduced that Brown’s car was being used in a drug operation or was significantly involved in a criminal enterprise. No evidence was adduced that Brown knew that the marijuana was in the car.

This case is controlled by Griffis v. State, 356 So.2d 297, Case No. 51,011, Supreme Court of Florida, opinion filed 2 March 1978, not yet reported, which overrules our Grimm case. In Griffis, our Supreme Court held that a vehicle forfeiture under Sections 943.41-44 is permitted only upon a showing of “a nexus between the illegal drugs found in the car and the furtherance of an illegal drug ‘operation’ ”. There was no such showing in this ease. The transportation of a controlled substance in a car which is only incidental to possession, which was the case here, is insufficient to invoke the forfeiture provisions of Sections 943.41-44.

The judgment of forfeiture is reversed.

ERVIN and BOOTH, JJ., concur.


text:
    COASTAL POWER PRODUCTS, INC., Appellants, v. DAYTONA MARINA & BOAT WORKS and James Rivers, Appellees.
    No. HH-416.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    George E. Ridge and David W. Carstetter of Kent, Sears, Durden & Kent, Jacksonville, for appellant.
   PER CURIAM.

Coastal Power, a third party defendant, seeks interlocutory review from the trial court’s denial of the motion to dismiss for lack of venue. The order is affirmed, there having been no manifest inconvenience, and therefore abuse of discretion, shown. State of Florida, Department of Transportation v. San Marco Contracting Company, 355 So.2d 133 (Fla. 1st DCA 1978); Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 237 (Fla. 3d DCA 1972); Mosby and Russell Engineering Associates, Inc. v. Hudson Company of Florida, 299 So.2d 53 (Fla. 4th DCA 1974); Keller Building Products of Sarasota, Inc. v. Pan American Aluminum Corp., 347 So.2d 728 (Fla. 2d DCA 1977).

AFFIRMED.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    STATE of Florida ex rel. Otis BRANCH, Relator, v. Honorable Charles A. WADE, Circuit Judge, First Judicial Circuit, Respondent.
    No. JJ-189.
    District Court of Appeal of Florida, First District.
    April 18, 1978.

      J. LaDon Dewrell, Fort Walton Beach, for relator.
    Robert L. Shevin, Atty. Gen., for respondent.
   BOOTH, Judge.

This cause is before us on Petition for Writ of Prohibition to prevent the Respondent, Circuit Judge of the First Judicial Circuit, from proceeding with the trial of Relator for murder in the first degree. The Petition asserts that the Speedy Trial Rule, Rule 3.191, Florida Rules of Criminal Procedure, has been violated and prevents his trial for the offense charged.

Facts set forth in the Petition and appendix thereto are that Relator was arrested and charged by information on August 19, 1977, with attempted first degree murder. On September 7,1977 he filed a demand for a speedy trial and trial was set for October 25, 1977. On September 21, 1977, the victim died. An indictment for first degree murder was returned October 3, 1977 and the State entered a nolle prosequi on the attempted murder charge. Subsequently, on motion of Relator charging the grand jury was improperly constituted, the indictment was dismissed, a new indictment for first degree murder was returned October 27, 1977 and trial set for January 16, 1978.

Based on the foregoing facts the Relator filed a motion on January 13, 1978 for discharge for failure to grant his demand of September 7, 1977, for a speedy trial. Hearing was held and the motion denied. Relator relied on subsection (h)(2) of Rule 3.191, which is as follows:

“Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued or is the subject of entry of a nolle prosequi.”

The obvious intent and purpose of the foregoing provision is that once the time period of Rule 3.191 begins to run, it runs as to charges arising from the alleged criminal conduct which could be brought against the accused at that time. This provision is designed to prevent successive charges for various offenses arising from the same criminal conduct, thereby circumventing the speedy trial requirement.

At the time of Relator’s indictment in this case for attempted murder in the first degree, the victim still lived and the charge of murder in the first degree, although arising from the same criminal conduct, was not available as a charge against Relator. On the death of the victim, a new and distinct crime was consummated. The contention made here that Relator cannot now be made to stand trial for that crime is thus totally without merit and would, indeed, make a mockery of the law.

Equally without merit is Relator’s contention that his demand for a speedy trial as to the indictment for attempted murder carry over to the subsequent indictment for murder. The speedy trial period cannot begin to run until a demand has been filed after the defendant has been charged with a crime by indictment, information or trial affidavit. Hanks v. Goodman, 253 So.2d 129, 130 (Fla.1971); State v. Gravlee, 276 So.2d 480 (Fla.1973). A demand filed prior to the indictment is a nullity. Rembert v. State, 284 So.2d 428 (3d DCA 1973).

The Petition fails to make a prima facie ease. Issuance of rule nisi is denied and the Petition DISMISSED.

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

      . On September 22 the State filed a motion for continuance and extension of time but this motion was apparently never heard.

      . Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929). The victim of a robbery died after the defendant had been convicted of robbery. Thereafter an indictment was brought for murder arising from the same conduct, and defendant was convicted. The Florida Supreme Court held that double jeopardy did not prevent the convictions, stating:
      “At the time of the conviction for robbery, Wells was still living, and the crime of murder had not been committed. The force had been inflicted upon the body of Wells, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if he had all the while been pressing it upon the body of his victim. When death was caused by that force, a new and distinct crime was consummated by the defendant, of which he was not before guilty, and for which he could not have been convicted at the time of the fírst prosecution." (e.s.)


author: HENDRY, Judge.

text:
    CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant, v. Jeannette MOORE, Appellee.
    Nos. 77-386, 77-390.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.

      Steel, Hector & Davis and Paul J. Bona-via, Miami, for appellant.
    Whitman, Wolfe & Gross, Miami, for ap-pellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellant-insurer, defendant below, brings this consolidated appeal from an “order granting plaintiff’s motion for summary judgment and other relief.” In filing her lawsuit, appellee, plaintiff below and wife of the deceased insured, sought to recover $1,000.00 per month for 24 months under the terms of an insurance policy that appellee’s husband had with appellant at the time of his death. Appellant argued below, and so contends here, that under the terms of the policy, appellee was entitled to only $763.33 per month.

Stated briefly, the facts are as follows: appellee is the widow of Captain Charles Moore, Jr., an employee of Braniff International Airways. Captain Moore was an insured under the terms of a Group Long Term Disability Benefits Insurance Policy issued to Braniff by appellant. Pursuant to this policy, Captain Moore was receiving disability income payments (“monthly income payments”) in the amount of $1,145 per month. Moore’s basic earnings qualified him for monthly benefits of $1,500, however, by virtue of the following provision in the policy, $355.00 in monthly pension benefits from his employer, Braniff, was deducted from the $1,500.

“ADJUSTMENTS IN AMOUNT OF MONTHLY INCOME. The amount of Monthly Income otherwise payable for any monthly period will be reduced by the amount of all Other Income Benefits (as defined in Section 9 of this policy) payable for the same monthly period.” [Emphasis added.]

Appellant paid Captain Moore $1,145 monthly disability benefits up until his death. Upon Moore’s death, appellee began receiving monthly “family income benefits” in the amount of $763.33. The amount of said “family income benefits” was determined by a formula set forth in section 11 of the policy as follows:

“FAMILY INCOME BENEFIT. The amount of each monthly Family Income payment will be equal to 66%% of the sum of (a) the Monthly Income payment due for the last full month of disability prior to the Employee’s death and (b) any amount by which such payment was reduced because of wage or profit received for work performed.”

Captain Moore’s “monthly income payments” had never been reduced by any amount because of any wage or profit received for work performed. Therefore, appellant contends that its obligation to Moore’s widow is 66%% of $1,145 (the amount of the payment due for the last month of disability prior to Moore’s death) or $763.33.

On the other hand, appellee contends, and the trial judge held, that she was entitled to 66%% of $1,500 and not of $1,145 because the monthly pension of Captain Moore ceased at his death. The sole issue for our determination is then, whether the above quoted provision of the policy of insurance entitled appellee to $1,000 per month for 24 months, as held by the learned trial judge, or $763.33 per month. Stated another way, the question becomes whether the language of the policy is so ambiguous as to be construed against the insurer and in favor of the larger indemnity.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the above quoted provision of the policy of insurance is clear and unambiguous and as such, must be enforced as written.

Appellee’s deceased husband received $1,145 per month prior to his death. Simple arithmetic shows that 66%% of $1,145 is equal to, in rounded figures, $763.33. The cessation of pension benefits (“other income benefits”) was never addressed in the “family income” section. That section specifically provides that “any amount by which [the last full monthly income payment to the deceased employee] was reduced because of wage or profit received for work performed” should be added to the monthly income payment in the computation of family income benefits. The policy thus makes an express exception for certain monies no longer forthcoming, but makes no such exception for pension benefits. The express inclusion of the former exception, and the exclusion of the latter indicates that no exception for terminated pension benefits was intended. Such a construction comports with the principle of expressio unius est exclusio alterius — “the expression in a contract of one or more things of a class implies the exclusion of all not expressed, although all would have been implied had none been expressed.” Pope v. State, 94 Fla. 254, 113 So. 629 (1927).

In conclusion, we find no ambiguity in the policy issued by appellant and given a clear and logical meaning and effect, it is our opinion that the benefits due appellee are $763.33 per month. Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla.1973); Rakoff v. World Insurance Co., 191 So.2d 476 (Fla.3d DCA 1966).

Accordingly, the order appealed from is hereby reversed and remanded with directions to enter judgment in favor of appellant.

Reversed and remanded with directions.


text:
    POLAR ENTERPRISES, INC., Appellant, v. ROYAL NETHERLANDS STEAMSHIP COMPANY, Appellee.
    No. 77-617.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Laurence D. Faye, Coral Gables, for appellant.
    Dixon, Dixon, Lane, Mitchell & Harris and Robert J. Galamaga, Miami, for appel-lee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

Appellant/defendant appeals from a summary final judgment rendered in favor of appellee/plaintiff on a cause of action for breach of a contract of ocean carriage. In addition, appellant also seeks review of an “order denying petition for rehearing in summary judgment” and an “order on plaintiff’s motion to tax costs.”

After carefully reviewing the record, including the pleadings, depositions, interrogatories and admissions, together with the affidavits on file, we are convinced that there were no genuine issues of material fact and that appellee was entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

As for the “order denying petition for rehearing on summary judgment” and the “order on plaintiff’s motion to tax costs,” no abuse of discretion has been demonstrated. Fla.R.Civ.P. 1.530(a); Holl v. Talcott, supra; Cohn v. Florida National Bank at Orlando, 223 So.2d 767 (Fla. 4th DCA 1969).

Accordingly, the orders appealed from are hereby affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    AL SPRINGER ROOFING CO., INC., a Florida Corporation, Appellant, v. FLAGLER FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a National Corporation, Appellee.
    No. 77-714.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Robert S. Korschun, Miami, for appellant.
    Keith, Mack, Lewis & Allison and Kim Ronald Blackman, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The question to be decided on this appeal is whether a final judgment of foreclosure upon appellee’s complaint left pending appellant-defendant’s counterclaim which sought relief against the plaintiff upon the theory that materials furnished to the foreclosed. property constituted an unjust enrichment to the plaintiff. The order appealed is described in the notice of appeal as “an order removing cause from non-jury trial calendar and amending a Summary Final Judgment.”

A complaint for foreclosure of mortgage was filed by the appellee, Flagler Federal Savings and Loan Association of Miami, against Original Concepts, Inc., a Florida corporation, and numerous other defendants. The appellant, A1 Springer Roofing Co., Inc., subsequently filed an answer to an amended complaint filed by the appellee, and a counterclaim against the appellee, Flagler Federal Savings and Loan Association of Miami. The counterclaim purported to allege an action for unjust enrichment or other equitable relief. In essence, the counterclaim alleged that the appellant had furnished material, labor and services for the improvement of the real property involved, which enhanced its value and increased the value of the appellee’s lien in equity in the property and which would unjustly benefit the appellee in the event it acquired the property through foreclosure. As a result, it was alleged (1) that the appellee would be unjustly enriched unless required to compensate the appellant for the material, labor and services furnished in the event the appellee acquired the property and (2) that the appellant had no adequate remedy at law in connection with this claim for compensation based upon improvement of the real property subject to the foreclosure action. We do not address the legal sufficiency of the counterclaim because that issue was not raised or decided in the trial court.

The appellee filed a reply to the counterclaim of the appellant, and subsequently filed a motion for summary judgment on August 18, 1976, moving the trial court for the entry of a summary judgment under the provisions of Fla.R.Civ.P. 1.510, on the grounds that the pleadings and affidavits on file therein showed that there was no genuine issue of any material fact and that the plaintiff was entitled to a summary judgment as a matter of law. There was no reference in the motion of whether or not it was a motion for summary judgment on the original complaint filed by the appel-lee or whether it was a motion for summary judgment on the counterclaim filed by the appellant. A hearing was held on the motion after proper and due notice and a summary final judgment was entered by the circuit court on the 15th of September, 1976. Pursuant to the provisions of the final judgment, the property described in the complaint and in the mortgage was sold on November 15,1976, to the appellee and a certificate of title was subsequently issued to the appellee on November 30, 1976.

After the sale, the appellant filed a notice for trial on December 21, 1976, stating that its counterclaim was now at issue and ready to be set for non-jury trial. An order was entered by the circuit court setting the counterclaim for trial. Thereafter, the ap-pellee filed a motion to strike the notice for trial, and an order was entered by the circuit court removing the cause from the non-jury calendar and permitting the summary final judgment issued by the court on September 15, 1976, to constitute a final judgment of all matters raised through the complaint and counterclaim filed in this cause.

As pointed out in Shelby Mutual Insurance Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970), a trial court has no authority to modify or vacate a final order except in the manner and within the time provided by rule or statute. In this case, the order on appeal was entered without a petition for rehearing and after the ten days provided. Thus, if the order modified the final judgment, it was a nullity. On the other hand, if the final judgment, as the court recited, disposed of the counterclaim, then the order did not modify the final judgment but simply corrected the erroneous ex parte order which placed the counterclaim on the non-jury trial calendar.

Did the summary final judgment dispose of the counterclaim? Appellant argues at length that the summary final judgment was erroneous, but that issue is not before us because no appeal was taken from the final judgment. Plaintiff’s motion for summary judgment, which is in this record, is not limited to any issue in the case. The judgment entered is in the ordinary form of a final judgment in the foreclosure of a mortgage on real estate, but it is limited in its holding in that,

* ‡ * * * *
“It affirmatively appears from the Affidavit filed by Plaintiff in support of its Motion for Summary Judgment that there is no genuine issue as to any material fact relating to the priority of Plaintiff’s mortgage and to Plaintiff’s entitlement to foreclose said mortgage.”
‡ sf: s(c sft sfc ‡

Two affidavits were filed by plaintiff; neither of these mentions the counterclaim.

In Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 179 So.2d 414 (Fla. 3d DCA 1965), this court held:

% if: ‡ ‡ *
“An order terminating litigation between one party and another is final as to them notwithstanding that in the same case litigation continues between either of those parties and third persons. Evin R. Welsh & Co. v. Johnson, Fla.App.1962, 138 So.2d 390. But the appositive is also true. An order which does not dispose of the entire claim between the parties is not final. Fountainbleau Hotel Corp. v. Young, Fla.App.1964, 162 So.2d 303.”

We conclude, therefore, that the judgment of foreclosure was not final as between the plaintiff and this appellant-defendant. The order appealed which sought to amend the judgment of foreclosure to make it a final judgment between these parties is not supported by the pleadings, depositions, answers to interrogatories and admissions on file or the affidavits on file. It is erroneous and must be reversed. The portion of the order appealed which removes the counterclaim from the court’s trial calendar is affirmed, inasmuch as the trial calendar is a matter exclusively within the discretion of the trial court.

Accordingly, the order appealed is affirmed in part and reversed in part, and the cause is remanded for further proceedings not in conflict with the views herein expressed.

Affirmed in part, reversed in part and remanded.

      . “ORDERED and ADJUDGED that this cause be removed from the non-jury trial calendar of April 4, 1977 at 9:30 A.M.; and it is
      “Further ORDERED that the Court hereby acknowledges that the Summary Final Judgment issued by this Court on September 15, 1976, in favor of Flagler Federal Savings and Loan Association of Miami in this cause was a Final Judgment as to all matters raised through the Complaint and Counterclaims filed in this cause.”


text:
    Wallace A. SCHWARZ et al., Appellants, v. EQUILEASE CORPORATION, Appellee.
    Nos. 77-827 and 77-929.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    A. John Goshgarian, Miami, and Michael Paul Shienvold, Coral Gables, for appellants.
    Lewis, Vegosen & Koeppel and Dean J. Rosenbach, Palm Beach, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendants appeal a summary final judgment for the plaintiff in an action upon guarantees of a truck lease agreement, and the assessment of an attorney’s fee for the plaintiff pursuant to a provision in the guarantees. The defendants urge that there were genuine issues of material fact. The record reveals only a question of law upon the guarantees and we find no error upon the trial court’s determination of the question of law. The guarantees were clearly for a continuing obligation.

We find error in the amount of the attorney’s fee. The contract provided:

“Guarantor agrees to pay attorneys fees of 15% of amount due if claim is placed with attorneys for collection, if allowed by law.”

The trial court mistakenly allowed more than 15% of the amount due under the guarantee.

The judgment is modified by the substitution of the amount of $1,384.86 in the place and stead of the amount of $2,250 allowed as attorney’s fee for the plaintiff. As modified, the judgment is affirmed.

Modified and affirmed.


text:
    Daniel VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-837.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977).


text:
    Leroy HESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1113.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Bennett H. Brummer, Public Defender and Kurt Mamar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.

      Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant was adjudged guilty after a jury verdict of trespass. On this appeal, he claims error upon the admission of his confession without a specific finding by the court that the confession was voluntarily given. See McDole v. State, 283 So.2d 553 (Fla.1973). Error is not presented for the reasons set out in Wilson v. State, 304 So.2d 119 (Fla.1974). See also Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976).

A second point as to the scope of cross-examination does not present error.

Affirmed.


text:
    Thomas SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1224.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The defendant appeals an adjudication of guilt of the crimes of aggravated assault and the unlawful possession of a firearm while engaged in a criminal offense. The judgment was entered on a jury verdict. The single point presented urges that the court erred in denying defendant’s motions for a judgment of acquittal made at the conclusion of the State’s case and at the conclusion of all the evidence.

The burden of defendant’s argument is that there was no proof of criminal intent sufficient to sustain the conviction. Defendant confessed and later testified that he shot the victim during a domestic argument. His testimony was that he was only trying to scare the victim and that he shot her accidentally. Proof of intent may be supplied by the circumstances. Skold v. State, 263 So.2d 627 (Fla. 3d DCA 1972). Cf. DuPree v. State, 310 So.2d 396 (Fla. 2d DCA 1975).

Affirmed.


text:
    Dr. Joan MEMBERY a/k/a Joan H. Membery, a/k/a Joan Hathaway Membery, Appellant, v. Hubert HAMMAC, Builder, Appellee.
    No. 77-1956.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Cunningham & Weinstein, Miami, for appellant.
    John C. Dick, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Joan H. Membery, is the owner and the defendant in the trial court in a mechanic’s lien foreclosure action. The contract between the parties was upon a cost-plus basis. One of the costs alleged is labor in the amount of $15,940.50. Appellant noticed the taking of deposition and issued a subpoena duces tecum to the claimant plaintiff’s bookkeeper requesting payroll tax returns in order to controvert the amount of labor involved. The trial judge granted the plaintiff appellee’s motion to quash the subpoena and denied appellant’s motion to compel production of the records.

Appellee offers no reason to show that the records were not proper for discovery, but urges that failure to appeal a prior interlocutory order denying discovery of certain of the documents was res judicata.

The order appealed is reversed upon authority of Fla.R.Civ.P. 1.280(b)(1). Cf. Fryd Construction Corporation v. Freeman, 191 So.2d 487 (Fla. 3d DCA 1966).

Reversed.


author: HUBBART, Judge.

text:
    Robert REDDING, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1968.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.

      Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The defendant Robert Redding appeals his conviction for grand larceny after a non-jury trial before the Circuit Court for the Eleventh Judicial Circuit of Florida. He contends on appeal that the trial court should have granted his motion for judgment of acquittal made at the close of the state’s case and renewed at the close of all the evidence on the ground that the evidence was insufficient to establish a prima facie case of grand larceny against him. We agree and reverse.

The evidence at trial viewed in a light most favorable to the state establishes that the defendant left town without paying certain overdue rent which he owed on a house he had rented after having previously promised his landlord that the rent would be forthcoming. Shortly thereafter, the defendant’s landlord discovered missing from the house certain property belonging to the landlord although there was no evidence that the house had been burglarized. The stolen property was never recovered or linked in any way to the defendant. Certain of the property had been observed the night before its disappearance located in a van in front of the rented house, but it was not established that the van belonged to or was connected with the defendant. The defendant testified at trial that he left the house the morning before the stolen property was sighted in the van, that he did not steal any of the missing property, that he left the key to the house in the house mailbox, and that he did not owe any overdue rent.

The state’s case herein is based entirely upon circumstantial evidence and fails to exclude, as it must, every reasonable hypothesis of innocence. Mayo v. State, 71 So.2d 899 (Fla.1954). The evidence does not eliminate the reasonable probability that the defendant moved out of the rented premises without stealing any of the property therein and that someone thereafter secured the key from the mailbox left by the defendant, entered the house and stole the property therein. Under well-settled principles of circumstantial evidence law governing criminal cases, such evidence of sudden and unexplained disappearance of property was insufficient to establish a case of grand larceny against the defendant and a judgment of acquittal should have been entered herein upon the defendant’s motion. Horton v. State, 91 So.2d 304 (Fla.1956); Smoak v. State, 87 So.2d 513 (Fla.1956); Wallace v. State, 330 So.2d 516 (Fla. 1st DCA 1976); J. D. D. v. State, 268 So.2d 457 (Fla. 4th DCA 1972); Reynolds v. State, 186 So.2d 315 (Fla. 3d DCA 1966).

The state argues that the deficiencies in the state’s case were cured by a specific finding of the trial court that the defendant had lied in his testimony when he denied owing any back rent and denied having any conversation with the landlord just prior to leaving the house — facts to which the landlord had previously testified. All that can be gleaned from such a finding is that the defendant did leave town without paying certain overdue rent after having had a prior conversation with the landlord during which the defendant had promised to pay such rent. The finding in no way establishes that the defendant stole the property therein from the leased premises. See Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965).

The judgment of conviction and sentence entered against the defendant is reversed and the cause remanded to the trial court with directions to discharge the defendant.

Reversed.


author: KEHOE, Judge.

text:
    Raymond BASS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2093.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Raymond Bass, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, was charged by an information with possession of heroin. Pursuant to a jury verdict, he was adjudged guilty as charged and placed on probation for a period of three years, with the special condition that he serve one year in the Dade County Jail.

After a careful review of the record, it is our opinion that appellant’s conviction must be affirmed; however, we note that in sentencing appellant to one year incarceration, the trial court failed pursuant to Section 921.161(1), Florida Statutes (1975), to credit appellant for the time which he served while awaiting sentencing. Therefore, we remand the cause to the trial court for resentencing in accordance with Section 921.161(1).

Appellant need not be present at the time .of the resentencing. Except as specifically stated herein, all other aspects of the judgment and sentence are affirmed.

Further, this court, proceeding in the manner outlined and recommended by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on the motion of the public defender to withdraw as counsel for the indigent appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed appellant a reasonable time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, upon full examination and consideration of the appeal, except as set forth above, we conclude that the appeal is wholly frivolous.

Therefore, for the reasons set forth above, the public defender’s motion to withdraw is granted and the judgment of conviction appealed is affirmed.

The sentence appealed is reversed and the cause is remanded for sentencing in accordance with the instructions set forth herein.

Affirmed in part; reversed in part and remanded; and motion of public defender to withdraw as counsel granted.


text:
    Frank GLESSNER, Appellant, v. METROPOLITAN DADE COUNTY, etc., Appellee.
    No. 77-2165.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Eugene P. Spellman and Denis Dean, Miami, for appellant.
    Stuart Simon, County Atty. and R. A. Cuevas, Jr., Asst. County Atty., for appel-lee.

      Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Kennett v. Barber, 159 Fla. 81, 31 So.2d 44 (1947); Jones v. City of Hialeah, 294 So.2d 686 (Fla.3d DCA 1974); Taylor v. Simmons, 406 F.Supp. 1019 (S.D.Fla.1975).


text:
    Carol ROTHMAN, Appellant, v. Philip ROTHMAN, Appellee.
    No. 77-2267.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Goodhart & Rosner and James F. Dough-erty, II, Miami, for appellant.
    Richard B. Marx and Steven G. Glucks-man, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In a judgment of dissolution of marriage entered January 14, 1977 from which no appeal was taken, incident to a provision for sale of the marital home of the parties it was provided that mortgage payments made by the respondent-husband from September 10, 1976 to the time of the sale should be credited to him and “shall be returned to the respondent in full prior to any division of the net proceeds from the sale or partition”.

The property was sold for a net of $36,-725.03. The credit the husband was to receive for the above-mentioned payments was $3,644.41. The court made a distribution order on September 26, 1977 by which he divided the net proceeds and then deducted from the share of the petitioner-wife, in favor of the respondent, the said amount due him of $3,644.41, with the result that the court fixed the petitioner’s share at $14,718.11. This appeal is by the wife from that order.

Appellant argues and we agree that the distribution as made by the trial court was not in accordance with the express direction in the judgment, under which the husband was entitled to receive the said amount of $3,644.41 from the net proceeds of the sale prior to equal distribution of the balance between the parties. On that basis the amount received by each party, following such credit to the respondent, was $16,-540.31. The order of distribution which is appealed from is hereby amended to so provide.

It is so ordered.


text:
    Thomas Letson PLANT, Jr., Appellant, v. Angelica S. PLANT, Appellee.
    No. 77-2405.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.

      Goodhart & Rosner and James F. Dough-erty, II, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal is from the trial court’s order denying the husband’s motion to enforce a tendered settlement agreement in a dissolution of marriage proceeding. The court’s decision to hear the issues relative to the property involved will not be disturbed upon interlocutory appeal where the trial judge heard testimony on issues affecting the validity and the fairness of the agreement. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Affirmed.


text:
    L. L. WATERS, Appellant, v. STATE of Florida, Appellee.
    No. DD-351.
    District Court of Appeal of Florida, First District.
    April 19, 1978.
    Daniel T. O’Connell, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on authority of Adams v. State, 356 So.2d 346 (Fla. 1st DCA 1978), and State v. Berry, 358 So.2d 545 (Fla.1978).

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


text:
    Mary Lou GARMON, Appellant, v. Jack Milton GARMON, Appellee.
    No. HH-246.
    District Court of Appeal of Florida, First District.
    April 19, 1978.

      Robert B. Staats, Panama City, for appellant.
    William E. Harris, Panama City, for ap-pellee.
   PER CURIAM.

The subject of this appeal is the trial court’s award to the husband of the wife’s interest in a jointly-owned 32-foot yacht. The award is erroneous because the husband did not plead special equity or other theory justifying the award to him of the wife’s interest. A trial court’s authority to effect a change in the title of jointly-owned property in a dissolution is restricted to an award of lump sum alimony, a determination of a special equity, a partition of the property, or a division based on the agreement of the parties. Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974). On dissolution of the marriage here, the parties became tenants in common of the yacht.

Accordingly, the judgment awarding the yacht to the husband is REVERSED and the cause REMANDED for further proceedings consistent herewith.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: PER CURIAM. MILLS, Acting Chief Judge,

text:
    Trenton TAYLOR, Appellant, v. Marie Delia TAYLOR, Appellee.
    No. HH-265.
    District Court of Appeal of Florida, First District.
    April 19, 1978.
    Lester Makofka, of Makofka & Beatty, Jacksonville, for appellant.
    James I. Riley, Jacksonville, for appellee.
   PER CURIAM.

Husband contends on his appeal from a final judgment of dissolution that the trial court erred in awarding wife the use and occupancy of the parties’ marital home. We disagree and affirm. Although the award was not made pursuant to an award of child custody or as lump sum alimony, the record reveals that wife at the time of dissolution was a 56-year-old woman in rather poor health with only an eighth grade education. Her employment experience was limited to work at a textile mill early in the marriage and a brief stint as a Christmas salesclerk for W. T. Grant Company more than ten years ago. In addition the testimony established that Mrs. Taylor was somewhat handicapped by her inability to speak English without a pronounced accent.

The facts here are remarkably similar to those in McDonald v. McDonald, 346 So.2d 610 (Fla. 1st DCA 1977), in which this court affirmed a similar award to a 39-year-old wife with a seventh grade education who had worked as a waitress, clerk, school bus driver and nurses’s aide. See Opinion of Mills, J., concurring in part and dissenting in part. If anything, the facts here are more compelling than those in McDonald, supra. The trial court did not err in its award. Husband’s other points being without merit, the judgment is affirmed.

Wife’s attorney’s fees for this appeal are provisionally granted in accordance with this court’s opinion in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

ERVIN and BOOTH, JJ., concur.

MILLS, Acting C. J., dissents.

MILLS, Acting Chief Judge,

dissenting:

I dissent.

Exclusive possession of jointly owned property can only be awarded to a mother with minor children in her custody or as lump sum alimony. Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1975); Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975).

There were no minor children in this case nor was the exclusive use and occupancy of the marital home awarded to Mrs. Taylor as lump sum alimony. The court erred in its award of the use and occupancy of the home by Mrs. Taylor and erred in denying Mr. Taylor’s prayer for partition of the jointly owned property.

I would deny Mrs. Taylor’s motion for attorney’s fees.


text:
    Myles C. ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. HH-450.
    District Court of Appeal of Florida, First District.
    April 19, 1978.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Patti Englander, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is an appeal from an allegedly illegal sentence imposed following conviction of resisting arrest without violence under Florida Statute § 843.02. The trial court initially sentenced appellant to serve nine months in the county jail, but failed to allow credit for jail time served as required by § 921.161(1), Florida Statutes (1975). At that time, defendant was taken by the bailiff across the street to the county jail where he began serving his sentence. Subsequently, the public defender brought to the court’s attention the fact that it neglected to give credit for 54 days of jail time served. The court then set aside its prior sentence and re-sentenced the defendant/appellant to serve ten months imprisonment with credit for 54 days jail time.

Under this Court’s decision in Flowers v. State, 351 So.2d 387 (1st DCA 1977), the trial court had no authority to set aside its prior sentence and impose a new and different sentence increasing the time to be served.

Accordingly, the sentence of ten months with credit for time served is set aside and the cause remanded with directions to the trial court to impose a sentence of nine months with credit for 54 days jail time. The appellant need not be present for this purpose.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    SUBURBAN VILLAGE MOBILE HOME PARK, LTD., Petitioner, v. SUN BANK OF GAINESVILLE, Respondent.
    Nos. II-93 and II-96.
    District Court of Appeal of Florida, First District.
    April 19, 1978.
    Gary B. Tullís and Douglas D. Chunn of Ulmer, Murchison, Ashby & Ball, Jacksonville, for petitioner.
    William B. Watson, III of Watson, Watson & Steadham, Gainesville, for respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED. The appeal is DISMISSED.

BOYER, Acting C. J., and SMITH, J., and BLACK, SUSAN A., Associate Judge, concur.


text:
    Rosario R. RIZZUTO, Appellant, v. Philip E. DiPAOLO, III, Appellee.
    No. 77-1499.
    District Court of Appeal of Florida, Second District.
    April 19, 1978.
    Frank H. Bass, Jr., of Martin J. Jones, P. A., St. Petersburg, for appellant.
    Dennis E. Dabroski and William D. Slicker, of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellee.
   PER CURIAM.

Plaintiff/appellant seeks to appeal an order which reads “that defendant’s motion for summary judgment is hereby granted.” This is not a final decision, order, judgment, or decree within the contemplation of Fla.R.App.P. 3.2(b). Likewise, the case is not one which formerly would have been cognizable in equity so the order is not subject to an interlocutory appeal. Fla.R.App.P. 4.2(a). Since we have no jurisdiction, the appeal, sua sponte, is dismissed. Arnold v. Brady, 178 So.2d 732 (Fla.2d DCA 1965); Renard v. Kirkeby Hotels, 99 So.2d 719 (Fla.3d DCA 1958).

GRIMES, A. C. J., and OTT and DAN-AHY, JJ., concur.


text:
    Roy DEES, Appellant, v. STATE of Florida, Appellee.
    No. HH-473.
    District Court of Appeal of Florida, First District.
    April 20, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant/defendant seeks review of his conviction for uttering a forged instrument, viz: a check, in violation of § 831.02, Florida Statutes (1975). Prior to closing, the State adduced evidence that the check was drawn on Columbia County Bank, Lake City, Florida, and was deposited in the State Exchange Bank of Lake City, Florida. After the State closed, the defendant moved for acquittal on the ground that venue had not been established. The motion was denied and the court allowed the State to reopen its case to present further evidence on venue. Defendant now urges that the trial court abused its discretion in allowing the State to reopen its case to establish venue where his motion for judgment of acquittal was made after the close of the State’s case and was based on the ground that venue had not been proved.

It is well established that the decision of the trial judge allowing a party to reopen its case will not be reversed unless a clear abuse of discretion is shown. See e. g., Pitts v. State, 185 So.2d 164 (Fla.1966); Kimmons v. State, 178 So.2d 608 (Fla. 1 DCA 1965); King v. State, 272 So.2d 821 (Fla. 3 DCA 1973).

Under the facts of this case, we hold that an abuse of discretion has not been demonstrated. Accordingly, the judgment and sentence are AFFIRMED.

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


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Clarence SANDERS.
    No. 60662.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.
    Concurring Opinion April 11, 1978.
    Bernard E. Fulghum, Jr., 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. Cemiglia, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Clarence Sanders was charged in the same information in separate counts for the offenses of (1) possession of a firearm after having previously been convicted of a felony and (2) carrying a concealed weapon after having previously been convicted of a felony, in violation of La.R.S. 14:95.1. After trial by jury, defendant was found guilty of carrying a concealed weapon after having previously been convicted of a felony and not guilty of the count involving the charge of illegal possession of a firearm. He was sentenced to serve five (5) years at hard labor with credit given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the bill of information in which he alleged, inter alia, that the statute under which he was charged was unconstitutional in that it im-permissibly infringed on his right to keep and bear arms guaranteed in the federal and state constitutions. He argues that, having completed state supervision for his previous felony convictions, he has been restored to full rights of citizenship under the state constitution.

The identical contention asserted by defendant was previously considered by this court in State v. Amos, 343 So.2d 166 (La.1977), and, for the reasons assigned therein, is without merit.

In brief to this court, defendant contends that La.R.S. 14:95.1 violates the state constitution in that it in no way limits the period of time during which a previously convicted felon is prohibited from possessing a firearm or carrying a concealed weapon. He further argues that the statute unreasonably differentiates between a previously convicted felon and a citizen with no criminal record by imposing on a previously convicted felon a penalty for possession of a firearm or carrying a concealed weapon.

It is well settled that a new basis for an objection cannot be raised for the first time on appeal. La.Code Crim.P. art. 841; State v. Gardette, 352 So.2d 212 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Powell, 325 So.2d 791 (La.1976). In any event, defendant’s contentions are without merit. La.R.S. 14:95.1 C(1) provides that the provisions of the statute shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence. Hence, the period of time during which a previously convicted felon may be prosecuted for possession of a firearm or carrying a concealed weapon is limited, contrary to defendant’s assertion. Furthermore, this court has recognized that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. State v. Amos, supra.

For the above reasons, we conclude that the trial judge did not err in denying defendant’s motion to quash the bill of information.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, 4 AND 5

In these assignments of error, defendant contends the trial judge erred in permitting the state to introduce, over defense objections and motion for mistrial, evidence of more than one of defendant’s prior convictions for certain felonies enumerated in La. R.S. 14:95.1.

La.R.S. 14:95.1 A provides:

It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.

An essential element of the crime defined in the above statute is a defendant’s prior conviction for one of the enumerated felonies. In the instant case, defendant was previously convicted of attempted simple burglary in 1970 and armed robbery in 1961, both of which are felonies which appear in the above statutory enumeration. The instant offense occurred within a ten-year period from the date of completion, probation, parole or suspension of defendant’s sentences imposed for his two previous felony convictions. La.R.S. 14:95.1 C(l). Defendant, therefore, committed the offense of carrying a concealed weapon proscribed by La.R.S. 14:95.1 in one or both of two ways, i. e., after being previously convicted of (1) attempted simple burglary and (2) armed robbery. The state correctly charged defendant conjunctively in a single count of the bill of information with the two ways in which the crime of carrying a concealed weapon as a previously convicted felon was committed. La.Code Crim.P. art. 480. Evidence of both of defendant’s previous felony convictions was admissible at trial as proof of an element of the crime charged and the manner in which the present offense was committed, proof of either prior conviction being sufficient to support defendant’s conviction for the present offense. Hence, the trial judge properly permitted introduction in evidence of both of defendant’s previous felony convictions.

These assignments of error lack merit.

DECREE

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

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I am not prepared to say, or imply, that the state in a prosecution such as this may unrestrictedly present evidence of a defendant’s multiple prior felonies. In this case, however, the trial judge wisely held a hearing outside the presence of the jury and apparently excluded proof of one of the three prior felonies which the state sought to introduce. On this record and in light of the judge’s obvious concern to avoid undue prejudice to the defendant, I concur in the result herein.

      . Defendant was subsequently charged by bill of information as an habitual offender under La.R.S. 15:529.1. The trial judge granted defendant’s motion to quash the habitual offender bill and the state applied to this court for review of the ruling. The ruling of the trial judge was upheld by this court. State v. Sanders, 337 So.2d 1131 (La.1976).


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Michael J. NAMIAS.
    No. 59796-A.
    Supreme Court of Louisiana.
    April 10, 1978.

      Edward C. Keeton, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Roy F. Blondeau, Jr., Asst. Dist. Attys., Research and Appeals Div., for plaintiff-appellee.
   SUMMERS, Justice.

This is an appeal by Michael J. Namias from a conviction and sentence to serve eighteen months imprisonment at hard labor on a charge of possession with intent to distribute a controlled dangerous substance, marijuana, in violation of Section 966 of Title 40 of the Revised Statutes. Five assignments of error are urged for reversal of his conviction and sentence.

Assignment 1: A motion to suppress evidence seized by members of the Jefferson Parish Sheriff’s Office was filed by defendant. The motion alleged that the affidavit upon which the warrant was based contained numerous inaccuracies and falsehoods.

At the hearing on the motion to suppress it was shown that on March 15, 1976 about 5:30 in the afternoon, narcotic agents Whitehead and Trevett of the Jefferson Parish Sheriff’s Office received a.telephone call from a confidential informant relating to a possible narcotics violation. The agents met with the informant between 6 and 7 o’clock that evening at a prearranged location. A pat down of the confidential informant was conducted, and he entered a house at 3633 W. Loyola Avenue in Kenner under surveillance by the agents. After 30 to 45 minutes, the informant came out and reported to the agents that he was shown narcotics in the house and was told they were for sale. Further periodic surveillance disclosed a number of long-haired, shabbily dressed “hippie-type white males” enter and leave the house which was later ascertained to be the residence of defendant Michael Namias.

On the basis of this information the agents obtained a search warrant later that night and then proceeded to the Namias residence, searched the premises, finding and seizing approximately eight pounds of marijuana beneath a bathroom sink. Defendant and his wife were then arrested. A laboratory test confirmed that the material seized was marijuana.

At the hearing on the motion to suppress, defense counsel asked Agent Whitehead where the prearranged location was, and the prosecutor objected that the answer could indicate the identity of the confidential informant. Despite the fact that defense counsel denied that he was seeking the identity of the confidential informant, the trial judge was of the opinion that the information was not needed for the defense and he sustained the State’s objection.

In its brief to this Court the defense treats the judge’s ruling as a finding that the testimony sought to be elicited was not relevant. To support the contention that the information sought could have been relevant, defense counsel argues that if the response indicated that the prearranged location was on a busy, well-lighted street the testimony of the officers that the informant was patted down at such a location would be suspect. In addition, if the prearranged location was too far removed for the officers to observe the confidential informant entering .the Namias house, the credibility of their testimony would be brought into question.

These speculations on the part of the defense, weighed against the prosecutor’s statement that the answer may indicate the identity of the confidential informant, placed the trial judge in the position of having to resolve the differences in light of the entire record and testimony before him. In making this decision on relevancy the trial judge was vested with a wide discretion which this Court will not disturb unless there is a clear showing of abuse. No such showing had been made here. La.Rev.Stat. 15:435; State v. Junegain, 324 So.2d 438 (La.1975); State v. Pierre, 261 La. 42, 259 So.2d 6 (1972); State v. Davis, 259 La. 35, 249 So.2d 193 (1971). This assignment is therefore without merit.

Assignment 2: Without pointing to the testimony of the narcotics officers, which is claimed to be contradictory, the defense asserts that the trial court ruling denying the motion to suppress was erroneous because of contradictions in their testimony. A reading of the transcript fails to disclose any substantial inaccuracies, contradictions or falsehoods in the testimony of the State’s witnesses. In effect, this defense assignment questions the trial judge’s determination of the credibility of the State’s witnesses. Such an attack upon the trial judge’s ruling is not well-founded on this record. This basis for attacking a trial judge ruling is, like relevancy, to be based upon a clear showing of abuse of discretion. No such abuse is shown here. State v. Barrett, 350 So.2d 664 (La.1977).

Assignment 3: When the jury was selected, but before the opening statements, defense counsel made an oral motion to quash the bill of information upon which this prosecution is based. The ground alleged is that it is drafted in the short form which is not authorized by the Code of Criminal Procedure. Article 465 of the Code, which sets forth the short forms for charging offenses, does not include a short form for possession of dangerous drugs, marijuana, with intent to distribute. Therefore, the offense involved here must be charged in the long form. State v. Wells, 283 So.2d 245 (La.1973); State v. Edwards, 283 So.2d 231 (La.1973). The requisite nature and content of the long form are set forth in Article 464:

“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.”

Insofar as pertinent, the challenged bill of information charges that on the 15th of March 1976 Michael J. Namias with force and arms, in the Parish of Jefferson “violated R.S. 40:966 in that . . . [he] did knowingly and intentionally possess with intent to distribute a controlled dangerous substance, to-wit: Marijuana, contrary to the form, of the Statute of the State of Louisiana, in such case made and provided, and against the peace and dignity of the State.”

Marijuana is classified as a controlled dangerous substance by statute. La.Rev. Stat. 40:962-64. It is made unlawful by Section 966 of Title 40 of the Revised Statutes for any person to knowingly or intentionally possess a controlled dangerous substance with intent to distribute. The statute also prescribes the penalty. State v. St. Romain, 292 So.2d 531 (La.1974).

“In a criminal prosecution,” the Constitution provides, “an accused shall be informed of the nature and cause of the accusation against him.” La.Const. art. I, § 13. This constitutional right is satisfied, it has been held, where in fact the defendant has been fairly informed of the charge against him, where the indictment does in fact charge a crime, when the defendant may be protected against further prosecution by asserting a plea of double jeopardy, and when he has not been prejudiced by surprise or lack of notice. State v. Anderson, 332 So.2d 452 (La.1976).

Based upon the foregoing it is the opinion of the Court that this bill of information does not purport to charge defendant under a short form of indictment. The bill substantially satisfied the constitutional requirement that the accused be informed of the nature and cause of the accusation against him. Defendant’s failure to request particulars indicates as much.

Furthermore, as required by Article 464, the indictment is a plain, concise, and definite written statement of the essential facts constituting the offense charged, and it cites the statute which defendant is alleged to have violated. This assignment is therefore without merit.

Assignment 4: “The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion . . . .” La.Rev. Stat. 15:466. The defense contends it was error for the trial judge to accept Ronald Singer as an expert in the field of narcotic analysis.

Singer is a criminalist for the Jefferson Parish crime lab, responsible for making microscopic and chemical analyses. His qualifications include a degree in biology with a chemistry minor from Tulane University, three years of post-graduate work at Louisiana State University and completion of all course work required for a Masters Degree at Loyola University of the South. He has attended several schools and workshops related to his field of expertise. He was employed for a period as an assistant biochemist with Standard Fruit and Steamship Company and later served as superintendent of that company’s analytical laboratory. Since 1972 he has worked for the Jefferson Parish crime lab performing “many thousands” of tests on marijuana. Eight different Louisiana courts, State and Federal, have accepted his qualifications as an expert in his field.

Although defense counsel could not recall the instance, he appears to be basing his contention that Singer is not qualified upon a case in which Singer made a mistaken analysis. In view of Singer’s outstanding educational qualifications and extensive experience, if he has made one mistaken analysis in the past, he would nevertheless meet the test of competency as an expert, for, as we all realize, even experts have been known to err.

Assignment 5: After the narcotic agents seized the marijuana it was furnished to Singer for analysis. He analyzed a portion of the green vegetable matter supplied as marijuana, but did not test the remainder. While he was testifying for the State, he was asked if the green vegetable matter which was not analyzed was also submitted to him by the narcotic agents. Defense counsel objected to this questioning unless Singer could testify that he analyzed the green vegetable matter referred to.

The trial judge ruled that the objection was premature. Singer was not testifying that the matter had been analyzed by him, only that it had been placed in his custody along with the substances that he did analyze. The ruling was correct.

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