author: OTT, Judge.

text:
    Larry D. BAINTER, Appellant, v. STATE of Florida, Appellee.
    No. 78-287.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

A jury found appellant guilty of three counts of delivery of a controlled substance contrary to § 893.13, Fla.Stat. (1975). The trial court adjudged appellant guilty of the offenses, sentenced him to five years in prison and assessed court costs against him. We affirm the judgment of the court but remand the case for resentencing.

The present sentence is an illegal general sentence because it imposes a single sentence for the three offenses. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975). On remand the court must give appellant a separate sentence for each offense. Appellant should be present for resentencing.

We also strike the order assessing costs. Since the court adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

Remanded for resentencing and striking of the order assessing costs; the judgment is affirmed in all other respects.

GRIMES, C. J., and SCHEB, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin E. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-869.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 1979.
    Jack 0. Johnson, Public Defender, William C. McLain, Asst. Public Defender, and David A. Davis, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and SCHEB and OTT, JJ., concur.


text:
    Edward Lee HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1333.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 1979.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Brent A. Woolbright, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. Section 939.15, Florida Statutes (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

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


text:
    Eddie B. HAIR, Appellant, v. STATE of Florida, Appellee.
    No. 78-1607.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 1979.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and David A. Davis, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

A jury found appellant guilty of aggravated assault and carrying a concealed firearm. The trial court adjudged him guilty of both offenses, sentenced him to five years in prison and assessed costs against him. We affirm the judgment of the court but remand the case for resentencing.

The present sentence is an illegal general sentence because it imposes a single sentence for the two offenses. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975). Therefore, on remand the court must give appellant a separate sentence for each offense.

The court must also set aside the order assessing costs. Since it had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and SCHEB, J., concur.


text:
    John Murray JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1764.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 19, 1976 (338 So.2d 556) affirming in part and reversing in part the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed December 21, 1978, 366 So.2d 418 and mandate now lodged in this court, affirmed in part and reversed in part and remanded the cause with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on November 4, 1976 is withdrawn the judgment of this court filed in this cause on October 19, 1976, except as is affirmed by the judgment of the Supreme Court dated December 21, 1978, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court to vacate the sentence for display of a firearm during commission of a felony. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    Frank CASTELLANOS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-888.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender and Rory Stein, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The single issue presented by the defendant is that the evidence is insufficient to support the conviction. The defendant was tried before a jury and found guilty of third degree murder. The only claimed error is the denial of his motion for judgment of acquittal. The motion was made at the close of the State’s case and at the close of all the evidence.

A close review of the record in the light of the briefs shows that the motions were properly denied. See State v. Jefferson, 347 So.2d 427 (Fla.1977); and Section 782.-04(l)(a), Florida Statutes (1977).

Affirmed.


author: EZELL, BOYCE F., Jr., Associate Judge.

text:
    James Alexander THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-996.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.

      Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   EZELL, BOYCE F., Jr., Associate Judge.

James Alexander Thomas seeks reversal of his conviction which was entered after guilty verdicts to the charges of robbery and unlawful possession of a firearm while engaged in a criminal offense. He was sentenced to 130 years imprisonment for robbery and to a consecutive term of 15 years imprisonment on the unlawful possession charge.

The facts adduced at trial are not in conflict and are not germane to the issues on appeal. The only issue for our consideration involves whether Thomas was deprived of his constitutional rights by the remarks elicited from a state witness by the prosecutor.

At trial, the following colloquy took place in the presence of the jury between the prosecutor and the arresting officer:

“Q. [PROSECUTOR]: Did you, in fact, arrest [Thomas]?
“A. I did.
“Q. At that time did you advise him of any Rights?
“A. Not at the scene. We advised him there was — we had a warrant for his arrest and that he would have to come with us down to the police station.
“After arriving at the police station I showed him a Constitutional Rights Warning Form and I read it to him. I asked him to read it and initial after each right.
“[PROSECUTOR]: Please mark this State’s Exhibit_
“THE CLERK: 1-B for Identification.”
* * * * * *

At this point in the proceedings the defense counsel interrupted and requested a sidebar conference:

“[DEFENSE COUNSEL]: Judge, I have not objected at this time, but I would like to make it at side-bar.
“THE COURT: All right ...” ******
“[PROSECUTOR]: I think his objection is on time. I’ll stop it the minute I introduce it.
“[DEFENSE COUNSEL]: My objection would be this may be a little premature, my objection is that I don’t believe any sort of statement was made in this case. “THE COURT: He just told us there wasn’t, of course.
“[DEFENSE COUNSEL]: I mean to me that would be unfair, an implication of the fact he was given his Rights for some reason and I think it would be prejudicial to him.
“[PROSECUTOR]: It has to be. “[DEFENSE COUNSEL]: I am going to move for a mistrial.
“THE COURT: I have learned to be very cautious. That’s the only reason I looked at it.
“Overruled.
“[DEFENSE COUNSEL]: Okay. Thank you.”
******

Direct examination of the police officer continued as follows:

“Q. [BY PROSECUTOR]: Officer, I hand you what has been marked State’s Exhibit 1-B for Identification, the Constitutional Rights Warning Interrogation Form. Do you recognize that?
“A. Ido.
“Q. And what is that suppose (sic) to be? “A. It’s the advisement of the Constitutional Rights.
“Q. I see a few signatures here. Whose signature is the one I am pointing to now?
“A. The signature of James Andrew Thomas — Alexander Thomas.
“Q. Was this signed in your presence? “A. Yes, it was.
“Q. Is your signature also on that document?
“A. Yes, it is on the lower left hand corner where it says witness.
“Q. And that of another officer, is that correct?
“A. It is.
“[PROSECUTOR]: At this time the State would move State’s Exhibit 1-B into evidence.
“[DEFENSE COUNSEL]: Judge, I just have one question I’d like on voir dire.
“THE COURT: Sure.
“VOIR DIRE EXAMINATION
“[BY DEFENSE COUNSEL]:
“Q. Officer, you stated that that’s James Thomas’ signature?
“A. James Thomas, yes.
“Q. Written on there.
“Now, are you referring to each written question or are you referring_
“A. No. I’m referring to the signature at the bottom, the signature of the subject.
“[DEFENSE COUNSEL]: Okay.
“I have no objections, Your Honor.
“THE COURT: Admitted.
“THE CLERK: 1-B is State’s Exhibit Number Two.
******
“[DEFENSE COUNSEL]: Subject, Judge, to my prior_
“THE COURT: Right.”
******

Shortly thereafter, the prosecutor concluded his examination of the arresting officer without ever introducing into evidence any statement made by the appellant upon interrogation or otherwise. The State rested, as did the defense which presented no evidence in appellant’s behalf. The jury subsequently returned with verdicts of guilty to the charges of robbery and unlawful possession of a firearm while engaged in a criminal offense.

The appellant now contends that the trial court committed reversible error in overruling his objection and denying his motion for mistrial when the prosecutor elicited testimony and introduced evidence which established that he exercised his right to remain silent after arrest. We hold that the arresting police officer’s reply to the prosecutor’s questions did not constitute comment on the appellant’s right to remain silent but related only to appellant’s understanding of the Miranda warnings. We therefore affirm.

Preliminarily, we dispose of the State’s contention that appellant did not properly preserve this issue for appellate review as required by Clark v. State, 363 So.2d 331 (Fla.1978). Our review of the record convinces us that appellant’s attorney properly objected and moved for a mistrial at the sidebar conference. Although he later stated that he had no objection to the admission of the Constitutional Rights Warning Interrogation Form, clearly he intended to preserve this issue for our review when he was cut off by the trial judge. Further, at the conclusion of the State’s case, defense counsel stated for the record that he intended to reserve his previous motions for mistrial. Appellant thus fully complied with the contemporaneous objection requirements of Clark and is entitled to appellate review of the issue.

Turning now to the merits, we cannot agree with the appellant’s contention that his constitutional right to remain silent was violated by the testimony quoted above. The Supreme Court, in Clark v. State, supra, 363 So.2d at 334, recently described the parameters of a defendant’s exercise of his right to remain silent in this context:

Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.

There is nothing in the record to indicate that appellant remained silent in the face of police questioning or that the police confronted him with any incriminating evidence. Nor is there record testimony indicating that the arresting officer confronted appellant with any accusation of guilt to which no response was forthcoming. The officer testified only that he asked Thomas to read the Constitutional Rights Warning Interrogation Form and to place his initials after each right. Thomas complied with this request and did so. This testimony cannot reasonably be construed as a comment on appellant’s right to remain silent. Holland v. State, 340 So.2d 931 (Fla. 4th DCA 1976); Mansfield v. State, 338 So.2d 857 (Fla. 3d DCA 1976). The jury could not reasonably conclude from the arresting officer’s testimony that the appellant “stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).

While we disapprove of the State eliciting testimony indicating that a defendant was properly warned of his constitutional rights when the State does not seek to introduce any statement by that defendant into evidence, we cannot find reversible error in this instance where there was no comment on the silence of the accused. Cf. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975). We agree, however, that the attempt to make such a showing courts reversible error and may deprive a defendant of his constitutional rights under certain circumstances. Maness v. State, 341 So.2d 246 (Fla. 4th DCA 1976). We admonish the State to carefully consider the effect of its actions on a defendant’s constitutional rights when it elicits testimony of this nature.

We have examined the appellant’s remaining points on appeal and find them to be without merit.

Affirmed.

KEHOE, J., dissents.

      .The Constitutional Rights Warning Interrogation Form was introduced into evidence against the appellant as noted in the portion of the record quoted above. In addition to his initials before each paragraph of the form, appellant wrote the word “yes” after the statement: “I am willing to answer any questions asked of me.” The jury was allowed to consider this form in its deliberations.

      . Although appellant’s trial was held prior to the release of the Clark opinion, the law as set forth in that decision governs this appeal. Williams v. State, 366 So.2d 817 (Fla.3d DCA 1979) (case 1979).

      . “[DEFENSE COUNSEL]: Subject, Judge, to my prior_
      “THE COURT: Right.”


text:
    Marion JEFFERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1042.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., and Clifford Miller, Legal Intern, for appellee.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant was found guilty by a jury of murder in the second degree and robbery. The court adjudicated him guilty of the crimes and sentenced him to serve a term of life imprisonment, to be followed by a fifteen (15) year term of imprisonment in the state penitentiary.

The grounds relied on by appellant for reversal have been considered in the light of the record on appeal and briefs, and we have found that no reversible error has been made to appear. The record discloses that the case was fully and fairly tried; that the verdict is supported by the evidence and that the rulings of the trial court challenged by appellant did not, on the record, and under the law, constitute harmful error. Therefore, the judgment and sentences are affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    Vera SHEAD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-2443, 77-2444.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Pollack, Spain & O’Donnell, John Lipin-ski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    ■ Before HUBBART, KEHOE and SCHWARTZ, JJ.
   HUBBART, Judge.

This is a criminal prosecution in which the defendant was convicted and sentenced on two grand larceny charges in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant appeals attacking solely one of these two sentences.

The central issue presented for review is whether a defendant can be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975), where (a) he has never previously been convicted of a felony in this state, and (b) he has previously been convicted of two misdemeanors [equivalent in penalty to a first degree misdemeanor in Florida] rendered on the same day in another state. We hold that under these circumstances the defendant cannot be declared a habitual felony offender and be given an enhanced sentence under Section 775.084, Florida Statutes (1975). Accordingly, we reverse the sentence under attack and remand for re-sentencing.

A

The essential facts pertaining to the above issue are undisputed. The defendant Vera Shead was charged by information with grand larceny allegedly occurring on December 9,1976. The defendant was tried without a jury and convicted as charged. The trial court pursuant to proper notice thereafter conducted a separate sentencing hearing, at which evidence and testimony was received, to determine whether the defendant should be given an enhanced sentence under the applicable habitual criminal statute [§ 775.084, Fla.Stat. (1975)]. The state established at that hearing that on September 11,1974, the defendant was convicted upon her plea of guilty of two misdemeanors [equivalent in penalty to a first degree misdemeanor in Florida] on a two count indictment in the Court of Common Pleas, Allegheny County, Pennsylvania. Both offenses were committed on the same date against the same victim. The Pennsylvania court imposed a $350 fine for both offenses and the defendant was ordered to-leave the county.

Based upon the above evidence, the trial court made the appropriate statutory findings and declared the defendant a habitual felony offender under Section 775.084, Florida Statutes (1975). The court then proceeded to impose an enhanced sentence thereunder which was beyond the ordinary maximum penalty authorized for grand larceny. See § 812.021(2), Fla.Stat. (1975). The defendant was sentenced to a ten year period of probation with a special probationary condition that the defendant serve 9V2 years in prison. The trial court’s announced purpose for imposing this probationary condition was to make certain that the defendant would never be paroled from prison. The defendant was also fined $5,000. The defendant appeals attacking solely the legality of this sentence.

The defendant was also charged, tried without a jury and convicted on another unrelated grand larceny charge. The trial court sentenced the defendant to five years in the state penitentiary, the sentence to run consecutively with the probationary sentence imposed on the first grand larceny case. A $5,000 fine was also imposed unless appropriate restitution to the victim was made as of a certain date. The defendant appeals this conviction and sentence, but has conceded before this court that no error was committed in this case.

B

Section 775.084, Florida Statutes (1975), is the controlling statutory authority on the issue before the court. The defendant was sentenced thereunder as a habitual criminal offender on the first grand larceny conviction. The applicable provisions of that statute read as follows:

“(1) As used in this act:
(a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has:
a. Previously been convicted of a felony [in this state];
b. Twice previously been convicted of a misdemeanor of the first degree in this state or [of] another qualified offense [for] which the defendant was convicted after the defendant’s 18th birthday;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
4. A conviction of a felony, misdemeanor, or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
* * * * * *
(c) ‘Qualified offense’ means any offense in violation of a law of another state or of the United States that was punishable under the law of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding 1 year or that was equivalent in penalty to a misdemeanor of the first degree.
* * * * * *
(4)(a) The court, in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual felony offender as follows:
1. In the case of a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30.
3.In the case of a felony of the third degree, for a term of years not exceeding 10.” § 775.084, Fla.Stat. (1975).

Central to declaring a defendant a habitual felony offender and giving him an enhanced sentence under the above statute is a showing that the defendant (1) has “[previously been convicted of a felony in this state,” or (2) has “twice previously been convicted of a misdemeanor in the first degree in this state or another qualified offense” subsequent to his eighteenth birthday. § 775.084(l)(a) 1. a.b., Fla.Stat. (1975). A qualified offense includes “any offense in violation of a law of another state . that was equivalent in penalty to a misdemeanor of the first degree” under Florida law. § 775.084(l)(c), Fla.Stat. (1975). See §§ 775.082(4)(a), 775.083(l)(d), Fla.Stat. (1975).

Under this and similar habitual criminal statutes, it is the established law of this state, as well as the overwhelming weight of authority throughout the country, that, when the statute requires two or more convictions as a prerequisite to an enhanced sentence on a present case, the defendant must have committed the second offense subsequent to his conviction on the first offense. Two or more prior convictions rendered on the same day are, therefore, treated as one offense for purposes of such a provision in a habitual criminal statute. Lovett v. Cochran, 137 So.2d 572 (Fla. 1962); Perry v. Mayo, 72 So.2d 382 (Fla. 1954); Mayo v. State ex rel. Murray, 66 So.2d 256 (Fla.1953); Reed v. Mayo, 61 So.2d 757 (Fla.1952); Scott v. Mayo, 159 Fla. 816, 32 So.2d 821 (1947); Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947); 4 Wharton’s Criminal Procedure, 288-289 (12th ed. Torcia 1976); Anno., 24 A.L.R.2d 1247, 1249 (1952).

The reason for this rule fully comports with the purpose of the habitual criminal statute. “[T]he purpose of the statute is to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed. It is contemplated that an opportunity for reformation is to be given after each conviction.” Joyner v. State, 158 Fla. 806, 809-10, 30 So.2d 304, 306 (1947). The legislature in enacting the statute intended it to serve as a warning to offenders in the early stages of crime and to afford them an opportunity to reform upon pain of enhanced punishment if they do not. “[T]he reason for the infliction of the severer punishment for a repetition of offenses is not so much that (the) defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions.” Anno., 24 A.L.R.2d 1247, 1249 (1952). It therefore follows that the requirement of two prior misdemeanor or qualified offense convictions under the habitual criminal statute means that the defendant must have committed the second offense subsequent to his conviction on the first offense and thus showed a persistence in a pattern of crime notwithstanding an opportunity to reform.

The state herein does not disagree with this legal analysis, but instead urges that only one prior misdemeanor or qualified offense conviction is sufficient inter alia to declare a defendant a habitual felony offender under the statute. We disagree. The language of Sections 775.-084(l)(a)l b, (3), Florida Statutes (1975), belies this contention by requiring that the trial court make a finding, in order to declare a defendant a habitual felony offender, that the defendant either (1) has previously been convicted of one felony in this state, or (2) has “[tjwice previously been convicted of a misdemeanor of the first degree in this state or [of] another qualified offense . . . .” [Emphasis added]. Plainly, two misdemeanor or qualified offense convictions, not one, are needed to trigger the statute.

In the instant case, it is undisputed that the defendant had no prior felony convictions in this state and had two prior misdemeanor convictions in Pennsylvania which were equivalent in penalty to a first degree misdemeanor under Florida law. These two convictions, however, were rendered on the same day for qualified offenses under the statute which were committed on the same day. The second of these offenses was, therefore, committed prior to the conviction on the first offense. As such, it is clear that the above two convictions must be treated as one qualified offense conviction thereby rendering the habitual criminal statute inapplicable to this case. The sentence imposed under the statute must therefore be reversed.

C

Although we have concluded that the habitual criminal statute does not apply to this case, this opinion should not be construed as approving the nature of the trial court’s sentence herein had the statute been applicable. Indeed, we are inclined to a contrary view.

First, it is seriously questionable whether probation in any form can be imposed under the habitual criminal statute. In order to sentence a defendant under this statute, the trial court must find, as it did in this case, that the imposition of an enhanced sentence “is necessary for the protection of the public from further criminal activity.” § 775.084(4)(a), Fla.Stat. (1975). See Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978). Probation, on the other hand, may only be imposed “[i]f it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law . . . .” § 948.01(3), Fla.Stat. (1975). The required findings under the habitual criminal statute and the probation statute are inconsistent and mutually exclusive.

Second, the 9V2 year prison term imposed as a condition of probation is equally questionable. Its sole purpose, as stated by the trial court, was to punish the defendant by denying her any hope of parole. Although a short jail or prison sentence may be imposed as a condition of probation if reasonably related to a rehabilitative purpose, State v. Jones, 327 So.2d 18 (Fla.1976), it is doubtful whether a lengthy prison term, as here, can stand as a probationary condition when its primary, if not exclusive purpose is to punish the defendant. See Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976). Moreover, it is further doubtful whether a trial court by this device can divest the Parole Board of its exclusive authority to parole a defendant on a prison sentence. In sum, it is our view that the sentence imposed in this case was illegal even if the habitual criminal statute had been applicable.

The judgment of conviction and sentence in case no. 77-2444 is affirmed. The judgment of conviction is affirmed, but the sentence is reversed in case no. 77-2443 and the cause is remanded to the trial court for resentencing in accord with the views expressed in this opinion.

Affirmed in part; reversed in part.


text:
    Julio A. NUNEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-363.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The appellant, Julio A. Nunez, was found guilty by a jury of attempted delivery or possession with intent to deliver more than one hundred pounds of marijuana. Adjudication was withheld and Nunez was sentenced to five years probation. This appeal is from the judgment and sentence.

Four points are presented, none of which shows reversible error. The first two points urge error upon the court’s denial of defendant’s motion to suppress evidence concerning the marijuana found in the truck he was driving. A review of the evidence at the hearing upon the motion to suppress shows evidence which, if believed by the trial court, is sufficient to sustain the trial court’s finding that the stop was legal as based upon a well-founded suspicion of defendant’s illegal activity. See State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977); see also State v. Spanierman, 267 So.2d 102 (Fla.2d DCA 1972). The arrest was legal because the facts established probable cause that the defendant had committed the crime for which he was later convicted. See Escobio v. State, 64 So.2d 766 (Fla.1953); and State v. Padilla, 235 So.2d 309 (Fla.3d DCA 1970).

The order denying the motion to suppress defendant’s confession is, likewise, supported by sufficient evidence that proper warnings were given and that the confession was freely and voluntarily given. There remains a question raised by defendant that the trial judge refused to rule upon the voluntariness of the confession and submitted the same to the jury without ruling. See McDole v. State, 283 So.2d 553 (Fla.1973). We find that the last statements of the judge culminating in the comment that the matter should be presented to the jury was not a refusal to rule upon the voluntar-iness, and that he did so rule. Cf. Wilson v. State, 304 So.2d 119, 120 (Fla.1974).

The third point on appeal urges error upon a response of a prosecution witness who indicated that he worked for the Organized Crime Bureau. This innocuous statement is not sufficient to support the defendant’s claim that he was prejudiced so that he could not receive a fair trial because of this knowledge on the part of the jury. Cf. Crews v. State, 353 So.2d 210 (Fla.3d DCA 1977).

The fourth point on appeal urges that the evidence was insufficient to show defendant’s control over the contraband in the truck which he was driving. This argument is insufficient upon the facts of this case under the law set forth in Davis v. State, 350 So.2d 834 (Fla.2d DCA 1977).

Having considered each point presented and finding no reversible error, the judgment and sentence are affirmed.

Affirmed.

      . Reversed on other grounds.


author: BARKDULL, Judge. PEARSON, Judge

text:
    In re ESTATE OF Luby L. ROBERTS, Jr., Deceased. Luby Lee ROBERTS, Sr., Appellant, v. Terry Dean BOLTON, Appellee.
    No. 78-512.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.

      Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellant.
    Storace, Hall & Hauser and Richard F. O’Brien, III, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   BARKDULL, Judge.

Luby Lee Roberts, Sr. appeals an order denying his petition for administration (without Will) and granting Terry Dean Bolton’s petition to admit a Will for probate.

The Will of the deceased provided that he and his wife bequeathed their estates to each other and, further: “If my said wife and I should die in a common * * * disaster, we do give * * * all our said estate to our nephew, Terry Dean Bolton.” [emphasis added] Prior to the deceased’s death he had been divorced. After his death, his wife filed a petition for the determination of beneficiaries. Roberts, Sr., as sole heir at law, filed a petition for administration without Will and Bolton filed a cross-petition for probate. The trial court found that the ex-wife’s interest had been voided by the dissolution and accompanying settlement agreement and, on the authority of In Re Estate of Wood, 226 So.2d 46 (Fla.2d DCA 1969), determined that there was sufficient ambiguity in the common disaster clause of the Will to warrant an evidentiary hearing on the Will’s effect. The trial judge’s order reads, in part, as follows:

******
“It is the position of LUBY L. ROBERTS, SR. that the Will executed by the decedent on May 14, 1964 is ineffectual and therefore the estate of the decedent passes to his father under the laws of descent and distribution. It is the position of TERRY DEAN BOLTON that the same Will is ambiguous and that parol evidence is consequently admissible to show the intent of the decedent, namely, to make TERRY DEAN BOLTON the sole devisee of his estate. By Order of June 24,1977, the Court, relying on In Re Woods Estate, 226 So.2d 46, certiorari denied 232 So.2d 181, found that because there was no residual clause in the Will there was sufficient ambiguity to warrant an evidentiary hearing which was granted and which has now been conducted and the parties have submitted the matter to the Court upon Memoranda of Law.
******
“Turning now to the extrinsic or parol evidence received by the Court at the evidentiary hearing, the Court finds from the unrefuted and uncontradicted testimony that it was the intention of the decedent to make TERRY DEAN BOLTON in effect the residual beneficiary of his estate. The record supports many good and sufficient reasons which prompted such motivation over blood kindred and being unrefuted and uncontra-dicted the Court is bound by its effect.
“In reaching this overall conclusion, the Court is prompted by a proposition of probate law for which no citation of authority is necessary. First that the law of probate favors testacy over intestacy; and secondarily, but not in that order, the intention of the testator is the polar star by which a probate court sets chart and compass to ascertain the intentions of a testator. Mr. Roberts, Sr., in opposition, has cited a wealth of authorities not only from this jurisdiction but from others. This Court is very much in the position that the trial court was in in In Re Woods Estate, 226 So.2d 46, 48:
“ ‘The Court is not ignoring the strong argument of the heirs nor the law as presented to the Court. The cases cited to the Court by the heirs are most persuasive. They do present, however, only rules and canons of interpretation. All of these rules and canons are devises (sic) contrived by our Courts to arrive at one ultimate conclusion: The testamentary intent of the Testator. The Court is further aware this particular point is a matter of first impression in the State of Florida, and one not to be decided lightly. However to follow these rules and canons blindly merely because they have controlled some cases in other jurisdictions in the past would, in this case, violate and destroy an overall testamentary scheme clearly set forth, but ineptly expressed.’
Had not the Florida Supreme Court denied certiorari (which the Court recognizes is not decision on the merits) it nonetheless indicates, the Supreme Court recognized that many of the decisions relied upon by counsel for Mr. Roberts, Sr. were simply inapposite in circumstances like those presented here which most nearly conform to In Re Woods Estate, supra.
******

We affirm the action of the trial judge. It is a close question as to whether or not he should have taken testimony in the first instance; however, we cannot see on this record that it was error for him to entertain evidence in order to construe the Will. See: Fuller v. Tod, 63 So.2d 316 (Fla.1953); Pancoast v. Pancoast, 97 So.2d 875 (Fla.2d DCA 1957); In Re Mullin’s Estate, 133 So.2d 468 (Fla.2d DCA 1961); In Re Estate of Wood, supra. There is no doubt, after examining the evidence submitted, that the ruling was correct in accordance with the evidenced wishes of the deceased by oral representations during his lifetime. In Re Baldridge’s Estate, 74 So.2d 658 (Fla.1954); In Re Thompson’s Estate, 84 So.2d 911 (Fla.1955); In Re Estate of Brown, 201 So.2d 616 (Fla.4th DCA 1967); In Re Estate of Wood, supra.

Therefore, the order appealed herein is hereby affirmed.

Affirmed.

PEARSON, Judge

(dissenting).

It is my view that the trial judge has taken evidence and made a will for the deceased. Although it is the duty of the judge in probate to determine the intention of the testator, it is not his prerogative to make wills. See Adams v. Vidal, 60 So.2d 545, 547 (Fla.1952); and Boyle v. Howe, 126 Fla. 662, 171 So. 667, 671-672 (1936); and see In Re Bradstreet’s Will, 5 Fla.Supp. 70, 75 (Fla. Palm Beach Cty. Judges Ct. 1954). See also the principles of law in In Re Cosgrave’s Will, 225 Minn. 443, 31 N.W.2d 20, 25 (1948).

I would hold that the purported will is of no effect. Cf. Meszaros v. Holsberry, 84 So.2d 565 (Fla.1956).


text:
    Keith RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-613.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Brian R. McComb, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Nelson v. State, 188 So.2d 353 (Fla.3d DCA 1966); Walker v. State, 196 So.2d 8 (Fla.3d DCA 1967); Webster v. State, 201 So.2d 789 (Fla.4th DCA 1967); State v. Hetzko, 283 So.2d 49 (Fla.4th DCA 1973); Giannetta v. State, 296 So.2d 654 (Fla.2d DCA 1974); Porter v. State, 302 So.2d 481 (Fla.3d DCA 1974); State v. Daniel, 319 So.2d 582 (Fla.4th DCA 1975); Ponder v. State, 323 So.2d 296 (Fla.3d DCA 1975), and Jester v. State, 339 So.2d 242 (Fla.3d DCA 1976).


text:
    Charles Andrew BUCHANAN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-692.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of his motion is affirmed.

Affirmed.


text:
    Stanley KIMMEL and Irene Kimmel, Appellants, v. MARBIN & WOLIS REALTY COMPANY, INC., Appellee.
    No. 78-798.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Michael H. Blacker, Miami Beach, for appellants.

      Eli Breger, North Miami Beach, for ap-pellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964).


author: BARKDULL, Judge.

text:
    Christopher A. BUSH, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1427.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Bush was charged by information with battery upon a law enforcement officer. He was arraigned and stood mute. A plea of not guilty was entered by the trial court. The appellant filed a motion to dismiss on the ground that the alleged victim, a Dade County corrections officer, was not a “law enforcement officer” within the meaning of Section 784.07, Florida Statutes (Supplement 1976). The trial court ruled that the corrections officers were law enforcement officers within the meaning and intent of the statute. Bush withdrew his prior plea and entered a plea of nolo contendere, reserving the right to appeal the denial of the motions to dismiss. He was adjudicated guilty and sentenced accordingly. This appeal followed.

We hold that a Dade County Corrections Officer is a “law enforcement officer” within the meaning of Section 784.07, Florida Statutes (Supplement 1976).

Pursuant to the Constitution of the State of Florida, the County was given the power to abolish the office of sheriff and to transfer his powers, duties and responsibilities elsewhere. To that end the Metropolitan Dade County Charter was amended, abolishing the office of sheriff and transferring his powers and functions to the county manager who “ * * * may delegate to a suitable person or persons the powers and functions of such officer.[] * * * ” The county manager, pursuant to the aforementioned authority and other applicable provisions of the Metropolitan Dade County Charter and Code of Metropolitan Dade County, ultimately created the Department of Public Safety and the Department of Corrections and Rehabilitation. It is within the Department of Corrections and Rehabilitation that we find the classification “correctional officer”, which was the officer involved in the instant case. This officer was empowered, by virtue of the administrative order creating the Department of Corrections and Rehabilitation and by his job description, with the following powers, duties and responsibilities: (1) Receives and controls prisoners; (2) Prevents escapes; (3) Enforces regulations; (4) Supervises prisoner work details; (5) Maintains records; (6) If so delegated, he has the power to make an in-house arrest and/or to execute warrants or capias on persons in custody. The obvious purpose of the creation of the Department of Corrections and Rehabilitation was to substitute (in Dade County) a correctional officer (as a person responsible for persons in custody) for a deputy sheriff who exercises such authority and control in the other 66 counties. To hold as the appellant contends would deny a person who is charged with this responsibility in Dade County of the equal protection of the law accorded others in similar situations in other parts of the State. This similarity of duties and responsibilities between a correctional officer and a deputy sheriff (serving in the capacity of being responsible for persons in custody) clearly shows that a correctional officer in Dade County comes within the class intended by the Legislature when it enacted Section 784.07, Florida Statutes (Supplement 1976). See: Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Soverina v. State, 356 So.2d 269 (Fla.1978); Compare: Pruitt v. State, 363 So.2d 552 (Fla.1978).

Therefore, the judgment of conviction appealed herein is hereby affirmed.

Affirmed.

      . “Assault or battery of law enforcement officers or firefighters; reclassification of offenses.—
      “(l)(a) As used in this section, the term ‘law enforcement officer’ includes, but shall not be limited to, any sheriff, deputy sheriff, municipal police officer, highway patrol officer, beverage enforcement agent, county probation officer, officer of the Parole and Probation Commission, and law enforcement personnel of the Game and Fresh Water Fish Commission and the Department of Natural Resources and Criminal Law Enforcement
      * * * * * *
      “(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
      * * * * * *
      “(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.”

      . Art. VIII, Section 11(f), Constitution of Florida (1885), as carried forward by Art. VIII, Section 6(e), Constitution of Florida (1968).

      . Sec. 8.01, Metropolitan Dade County Charter.
      “(D) On November 9, 1966, the Office of Sheriff is hereby abolished and the powers and function of such office are hereby transferred to the County Manager, who shall provide for the continuation of all the duties and functions of this office required under the Constitution and general laws of this state. The County Manager may delegate to a suitable person or persons the powers and functions of such offi-O0U ‡

      . Metropolitan Dade County Charter, Sec. 4.02. Administrative procedure.
      “ * * * The organization and operating procedure of departments shall be set forth in administrative regulations which the Manager shall develop, place into effect by administrative orders, * * * ”
      Code of Metropolitan Dade County, Sec. 2-91. Established; director as head; known as metropolitan sheriff; appointment; term; appointment of personnel.
      “A public safety department is hereby established. The head of this department shall be the public safety director who shall also be known by the title of metropolitan sheriff. The director shall be appointed by and serve at the will of the manager. The organization and operating procedures of the department shall be described in administrative orders and regulations of the manager. The manager shall appoint such employees and other personnel as may be necessary to operate the department.
      Code of Metropolitan Dade County, Sec. 2.93. Abolition of office of sheriff and transfer of duties.
      “The office of sheriff of Dade County provided for by the Constitution of this state is hereby abolished and all powers, functions and equipment of such office are hereby transferred to the department of public safety. In accordance with Article VIII, Section 11 of the Florida Constitution and the Home Rule Charter, all duties and functions required under the Constitution, general laws and Special Laws of this state transferred from the sheriff of Dade County to the department of public safety shall be performed by the department of public safety * * *


text:
    BISCAYNE ATHLETIC CLUB, INC., and Stephen Reiner, Appellants, v. Conrad R. IACONO et al., Appellees.
    Nos. 78-1645, 78-1646.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellants.
    Fink & Syna and Sidney L. Syna, Miami, for appellees.
    Before HENDRY, J., TYSON, ROBERT W., Jr., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These consolidated interlocutory appeals are from orders denying appellants’ motion to quash service of process in an action for specific performance and other equitable relief in which appellants are defendants and appellee is plaintiff.

It appears from the record that appellee requested that the sheriff serve appellant, Biscayne Athletic Club, Inc., a Florida corporation, by serving its “resident agent, Palmer and Lazor, P.A.”, as provided for in Section 48.081, Florida Statutes. The sheriff’s return shows that corporate service was made by serving Mr. Palmer, as resident agent of Biscayne Athletic Club, Inc.

Appellant, Stephen Reiner, a resident of the State of New York, was served in New York pursuant to Section 48.194 Florida Statutes which creates long-arm jurisdiction in the court of Florida based upon personal service.

Appellant, Biscayne Athletic Club, Inc. made a motion to quash the service upon it on the grounds that appellee failed to comply with the provisions of Section 48.081, Florida Statutes. The motion was supported by an affidavit reciting that Palmer and Lazor, P.A. is not the resident agent of the corporation. There was no rebuttal filed to the allegation in the affidavit.

Appellant, Stephen Reiner, moved to quash service of process on him on the ground that the allegations of the complaint were insufficient to support long-arm jurisdiction of the person of the appellant. We find merit in the grounds asserted by both appellants and hold that the trial court erred in denying their motions to quash. Ludlam Enterprises, Inc. v. Outdoor Media, Inc., 250 So.2d 649 (Fla. 4th DCA 1971); Hoffman v. Three Thousand South Association, Inc., 318 So.2d 486 (Fla. 4th DCA 1975); Elmex Corp. v. Atlantic Federal Savings & Loan Ass’n, 325 So.2d 58 (Fla. 4th DCA 1976); Joyce Bros. Storage & Van Company v. Piechalak, 343 So.2d 97 (Fla. 3d DCA 1977); Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978), and Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367 (Fla. 4th DCA 1978).

The orders appealed are reversed.

Reversed.


text:
    AMERICAN HEALTH PLAN, INC., Petitioner, v. Tully KOSTNER, Respondent.
    No. 78-1679.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Arky, Freed, Stearns, Watson & Greer and Richard M. Dunn, Miami, for petitioner.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gerald Mager, Hollywood, for respondent.
    Before HENDRY and KEHOE, JJ„ and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This is a petition for writ of common law certiorari seeking review of an order of the trial court directing petitioner/defendant to answer certain interrogatories by furnishing respondent/plaintiff the names of the subscribers to petitioner’s health plan whose contracts for health services were terminated by petitioner for misrepresentation or omissions of medical information made in their applications from the tenth day of August, 1976 through the date on which the answers are made.

The information was sought in connection with plaintiff’s suit against defendant for breach of its agreement to render and pay for all hospital and physicians’ services of plaintiff Gertrude Kostner. Plaintiff alleged negligence, intentional infliction of emotional distress, breach of contract, conspiracy and fraud. Compensatory and punitive damages were claimed.

Petitioner objected to each of the interrogatories on numerous grounds, among them being that the interrogatories are offensive in that disclosure of the information sought would unduly infringe upon privacy rights of persons unconnected to this cause; that the interrogatories seek discovery of matters which are neither relevant to the issues in the subject cause nor reasonably calculated to produce evidence admissible in this cause; and that these interrogatories are excessively burdensome and oppressive because they require defendant to expend great amounts of time and expense to review more than three thousand files in search of the requested information. We hold that there was merit in the objections and that the order appealed constitutes an abuse of discretion by the trial court and departs from the essential requirements of the law. Argonaut Insurance Company v. Peralta, 358 So.2d 232 (Fla.3d DCA 1978).

Therefore, certiorari is granted and the order reviewed is hereby quashed and the cause is remanded for further proceedings not inconsistent herewith.


author: SCHWARTZ, Judge.

text:
    Marvin KATZ and Agnes Katz, his wife, and Joseph Neumann and Margaret Neumann, his wife, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 78-2260.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.

      Dubbin, Schiff, Berkman & Dubbin and Michel E. Anderson, Miami, for appellants.
    Stuart L. Simon, County Atty., and Murray Greenberg, Asst. County Atty., for ap-pellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellants are the owners of one of several parcels of land in downtown Miami sought to be condemned by Dade County. They appeal, pursuant to Fla.R.App.P. 9.130(a)(3)(C)(ii), from an order granting the county the right to immediate possession of the property under the “quick taking” provisions of Chap. 74, Fla.Stat. (1977). We reverse upon the holding that, as a matter of law, the county did not meet its burden of showing a reasonable necessity for the taking of the property in order to serve the public purpose it asserted for the condemnation.

The petition filed by the county contained the following statement as to the “use for which the property is to be acquired . . ” as required by § 73.021(1), Fla.Stat. (1975):

“The specific property, hereinafter described, is needed for the public purpose of urban renewal contemplating the clearing and redevelopment of a slum area, and is necessary for such use and purpose. The petitioner has located the area of the urban renewal project and intends in good faith to carry out the urban renewal program designated County Community Development Program Area No. 10, Central Miami, Downtown, upon the said described poperty [sic].” (emphasis supplied)

The declaration of taking, filed pursuant to § 74.031, Fla.Stat. (1975), stated similarly:

“. . . that it has become necessary that the land, which is the subject of the condemnation in said proceedings be taken for the immediate public use by said petitioner for urban renewal purposes in connection with the clearing and redevelopment of a slum area.” (emphasis supplied)

In answer to the petition, the present appellants contended, among other things, that there was no reasonable necessity for the taking of their property for the purpose alleged by the county. This response placed the burden on the condemning authority to establish, in the first instance, that such a reasonable necessity existed. City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977); Dade County v. Oolite Rock Co., 311 So.2d 699, 701, n.2 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976); Griffin v. City of Jacksonville, 299 So.2d 90 (Fla. 1st DCA 1974), cert. denied, 304 So.2d 125 (Fla.1974). At the hearing below, however, the county initially did nothing more than introduce the authorizing resolution of the commission with its attachments, and rest. The landowner then presented extensive testimony in support of its claim that its land was neither slum property nor in a slum area and that its taking was not necessary to achieve the public purpose the county had alleged. Only in rebuttal did the county put on the evidence it now relies upon to support the taking and the order below. Even that testimony, however, simply does not do so. The county’s case in rebuttal consisted of the testimony of Martin Fine, the chairman of a committee concerned with the proposed project, and Melvin Adams, the Director of the Dade County Department of Housing and Urban Development. Both men testified that the “public purpose” for the acquisition was, as Mr. Fine said:

“. . . for construction of the college facilities and housing in that entire block and the blocks to be taken on the opposite side from Third to Fourth Street, as one overall program for major campus expansion of the existing community college.”

It is apparent that this “public purpose” is not, on its face, the one alleged in the petition and the declaration of taking, that is, “urban renewal contemplating the clearing . . . of a slum area . .” Even more importantly, neither Mr. Fine nor Mr. Adams, who said only that there was slum property in the “general area” of, but not including the property in question, gave any reason why the appellant’s parcel was reasonably necessary, convenient, or even related to the achievement of that purpose. In fact, the only evidence at all relating to this issue consists of the following statement of Mr. Adams:

“Q In your estimation as director of housing and development, is such a parcel necessary for a public purpose?
A Yes.”

It is plain that this bare and conclusory opinion on a legal issue, which contains no supporting reasons, has no evidentiary value whatsoever. See 7 J. Wigmore, Evidence (Chadbourn rev. 1978), § 1960, p. 131, and cases collected at n.5.

As our supreme court held in City of Jacksonville v. Griffin, supra, at 346 So.2d 990:

“. . . there is a two-tier model to be observed when determining whether a condemning authority has met its burden of proving reasonable necessity for the taking. In the first instance, the condemning authority is obliged to show a reasonable necessity for the condemnation. Canal Authority v. Miller, supra, 243 So.2d at 134. . . . Although it will not be presumed that a condemning authority abused its discretion or acted illegally or in bad faith in making its finding of reasonable necessity in a resolution of taking, such authority, in order to meet its burden, must put on some evidence of reasonable necessity for the taking . . . ” [emphasis supplied]

Since this record shows that the county introduced no competent evidence whatever of “reasonable necessity” for the purpose alleged in the petition, it follows that its burden has not been met and that the order of taking cannot stand. Canal Authority v. Miller, 243 So.2d 131 (Fla.1970); contrast Canal Authority v. Litzel, 243 So.2d 135 (Fla.1970). It is therefore reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Attached to the petition was the county commission resolution authorizing the condemnation of the property in question “for community development.” No specific statutory or code authority for the taking was cited either in the resolution or the petition. And, although the county may have been proceeding under the Community Development Act, §§ 163.330, et seq., Fla.Stat. (1977), no finding of necessity required by § 163.355, Fla.Stat. (1977) was attached to the petition or introduced into evidence at the hearing below. Compare City of Jacksonville v. Griffin, 346 So.2d 988, 989 (Fla. 1977).

      . This was clearly insufficient to sustain the county’s burden, Canal Authority v. Miller, 243 So.2d 131, 135 (Fla.1970); City of Jacksonville v. Griffin, supra; City of Miami v. Cox, 313 So.2d 443, 444 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla.1976).

      . Mr. Adams stated that an additional purpose was “to provide some senior citizens public housing.”

      . See City of Jacksonville v. Moman, 290 So.2d 105 (Fla. 1st DCA 1974), cert. denied, 297 So.2d 570 (Fla.1974); Dade County v. Paxson, 270 So.2d 455, 459 (Fla. 3d DCA 1972).

      . The record here contains neither a comprehensive development plan nor any of the documents which the court in the Griffin case held sufficient to constitute “some evidence of reasonable necessity.”

      . Our holding makes it unnecessary to consider the other arguments the appellants advance for reversal.


text:
    Kenneth PERPALL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-19.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Kenneth Perpall, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief because there is no showing that the alleged incompetence of counsel contributed to the guilty plea, the denial of his motion is affirmed.

Affirmed.


text:
    Carlton Delano BOWERS, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. LL-416.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1979.
    George G. Phillips, Pensacola, for appellant.
    Danny L. Kepner, of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   PER CURIAM.

The appellant brings for review, by way of interlocutory appeal, an order entered by the trial court granting the motion of United States Fidelity and Guaranty Company for summary judgment on the issue of its alleged liability.

Upon considering the briefs, the record and oral argument, we find the order appealed from is without error, and the same is AFFIRMED.

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


text:
    STATE of Louisiana v. Jerry T. ALEXANDER.
    No. 59316.
    Supreme Court of Louisiana.
    July 1, 1977.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Frank RECASNER.
    No. 62070.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    CASUAL VILLAGE, INC. v. L. J. ONE, INC., L. J. Two, Inc., U. T. Corporation and Sizeler Realty Co., Inc.
    No. 62382.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
    Stanley McDermott, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for Casual Village, Inc.
    Robert P. Chatelain, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for L. J. One, Inc., L. J. Two, Inc., U. T. Corp. and Sizeler Realty Co., Inc.
   JOINT MOTION TO DISMISS

On joint motion of plaintiff, Casual Village, Inc. and L. J. One, Inc., L. J. Two, Inc., U. T. Corporation and Sizeler Realty Co., Inc., defendants, appearing herein through Stanley McDermott, Jr. and Robert P. Chatelain, respectively, and on suggesting to the Court that plaintiff and defendants have resolved the issues amicably and hereby request that this suit and the writs filed with the Supreme Court be dismissed.

Considering the joint motion of plaintiff and defendants, IT IS ORDERED that this suit be dismissed.


text:
    STATE of Louisiana v. Byron HILLIN.
    No. 62224.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    John M. Lawrence, 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., Maurine A. Carroll, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
   PER CURIAM.

The defendant Hillin was convicted of forcible rape, La.R.S. 14:43.1 and sentenced to six years imprisonment at hard labor. His appeal raises fourteen assignments of error, comprising eleven arguments.

We find that none of the assignments present reversible error, no do any involve legal issues not governed by clearly applicable legal principle. Some of the assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which will not be published with this opinion.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Pinnel LOMAX.
    No. 62416.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Ernest V. Richards, IV, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Robert Pitre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Defendant Pinnel Lomax was charged by bill of information with armed robbery in violation of R.S. 14:64. On February 3, 1976 the jury found defendant guilty as charged; on February 10, 1976 defendant was sentenced to twenty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal defendant assigns three errors.

Defendant contends that prejudicial error resulted from the trial judge’s allowing inadmissible evidence and hearsay testimony to be admitted into evidence. Defendant also argues that the evidence at trial was not sufficient to support a verdict of guilty and that he was denied his constitutional right to a speedy trial by the denial of a speedy trial.

Having reviewed these assignments of error, this court finds them to be without merit and, accordingly, affirms defendant’s conviction and sentence.

SUMMERS, J., concurs.


text:
    STATE of Louisiana ex rel. Joseph BICKMAN v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. Kent BELL v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. Ray STEVENS v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. Glenn WADE v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. Keith CORNELL v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. David GIFFORD v. Hayden J. DEES, Warden, Dixon Correctional Institute. STATE of Louisiana ex rel. Robert N. PAULHUS a/k/a Robert N. O’Brien v. CUSTODIAN OF RECORDS OF LOUISIANA STATE PENITENTIARY, C. Paul Phelps, Secretary, Department of Corrections, Frank Blackburn, Warden, Louisiana State Penitentiary. STATE of Louisiana ex rel. Nelson MANUEL v. C. Paul PHELPS, Secretary, Department of Corrections. STATE of Louisiana ex rel. Bruce HINKLEY v. C. Paul PHELPS, Secretary, Department of Corrections.
    Nos. 62496, 62696, 62717, 62800, 62802, 62918, 62969, 63069 and 63072.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   PER CURIAM.

Recently this Court in State v. Curtis, 363 So.2d 1375 (La.1978), overruling its earlier decision in State v. Wilson, 360 So.2d 166 (La.1978), held that the application of amended provisions of La.R.S. 15:571.3(C), relative to denial of eligibility for diminution of sentence for good behavior, to a defendant who committed the underlying offense prior to enactment of the statute, but who was sentenced thereafter, violates the ex post facto prohibitions contained in both the United States and Louisiana Constitutions. See U.S.Const. art. I, § 9; La. Const, art. I, § 23 (1974). While the change in the law does not deprive defendants of any vested rights, we concluded that it does operate to apply “a new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer and that it has the effect of making the standard of punishment ‘more onerous’ through its effect on release eligibility.” State v. Curtis, supra (citations omitted).

These nine consolidated cases, before the Court on petitions for writs, all raise issues concerning the application of State v. Curtis, supra, and the effect of its holding on other statutory provisions relative to diminution of sentence for good behavior. Three distinct problems are presented: (1) a pure Curtis issue, i. e. denial of the opportunity to earn good time diminution under La.R.S. 15:571.3(B) by the operation of laws passed after the date the offense was committed; (2) the effect of Curtis on the operation of La.R.S. 15:571.4 relative to computation of good time to be applied toward diminution of sentence, as amended by Acts 1977, No. 665, § 1; and (3) the effect of Curtis on the application of various provisions relative to forfeiture of good time by parole violators, including particularly La. R.S. 15:571.4.

Eligibility for Diminution of Sentence for Good Behavior

La.R.S. 15:571.3(B) provides as follows:
Every inmate in the custody of the Department of Corrections who has been convicted of a felony and sentenced to imprisonment for a stated number of years or months may earn a diminution of sentence by good behavior and performance of work or self improvement activities or both to be known as “good time.” Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might commuted to a specific number of years. The director of corrections shall establish procedures for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed shall be otherwise provided by law.

This general provision authorizing the awarding of good time for all inmates in the custody of the Department of Corrections was last amended in 1972. Acts 1972, No. 739, § l.

In 1975, the legislature added a section C to La.R.S. 15:571.3 which stated as follows:

No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder, manslaughter, aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751 et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced qs an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.

Acts 1975, No. 727, § 1 (emphasis added). The provisions of the Act specifically stated that it applied “only to persons convicted under the Habitual Offender Law after September 15, 1975.” Acts 1975, No. 727, §3.

This added provision was amended in 1977 to provide as follows:

(1) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 prior to or on September 9, 1977, shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.
(2) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 after September 9, 1977 shall be entitled to a diminution of sentence for good behavior under this Part.

Acts 1977, No. 633, § 1 (emphasis added).

Under Curtis, the controlling date for the application of these statutory provisions can no longer be the date on which the defendant is sentenced as a habitual offender. Rather, reference must be made to the date the offense was committed in order to determine the constitutionally applicable provision relative to good time eligibility. An examination of the various legislative acts and their specified effective dates, in light of Curtís, establishes the following: (1) any person convicted of a felony committed on or prior to September 15,1975, is eligible for diminution of sentence for good behavior regardless of the nature of his offense(s) and whether or not he has been adjudged a habitual offender; (2) any person who has committed a felony between September 16, 1975 and September 9, 1977 inclusive, has been convicted one or more times of one of the offenses enumerated in La.R.S. 15:571.3(C), and is sentenced as a habitual offender, is eligible for good time unless specifically denied such eligibility upon order of the sentencing court; and (3) any person who has committed a felony on September 10, 1977 or thereafter, has been convicted one or more times of one of the offenses enumerated in La.R.S. 15:571.3(0), and is sentenced as a habitual offender is automatically denied eligibility for diminution of sentence for good behavior.

Computation of Good Time

La.R.S. 15:571.4 sets forth procedures for the computation of good time to be applied toward diminution of sentence. In 1972, the section relative to inmates in the custody of the Department of Corrections was amended to provide, with respect to the basis for computation, that “[g]ood time for all sentences will be computed on the basis of 25 days per month for time actually served, which amount shall be applied toward diminution of sentence.” La.R.S. 15:571.4(B), as amended by Acts 1972, No. 739, § 1 (emphasis added). Section 2 of the same Act stated with respect to applicability as follows:

The provisions of this Act shall be applicable to all inmates presently in the custody of the Department of Corrections provided that those inmates presently serving longer sentences will not be credited with less good time than they might already have earned under the provisions of Act 426 of 1964.
The provisions of this Act shall also be applicable to all inmates hereafter sentenced to the Department of Corrections for any term longer than one month as imposed or to which sentence is computed.

Acts 1972, No. 739, § 2. La.R.S. 15:571.4(B) was again amended by Acts 1974, No. 200, § 1, but only relative to the effect of parole revocation on forfeiture of good time. See discussion infra.

In 1977, however, the legislature added a new section to La.R.S. 15:571.4 which provides that for inmates convicted subsequent to September 9, 1977 “[g]ood time for all sentences will be computed on the basis of fifteen days per month for time actually served, which amount shall be applied toward diminution of sentence.” La.R.S. 15:571.4(C) as added by Acts 1977, No. 665, § 1 (emphasis added). The clear intent of this added provision is that the basis for computing good time for inmates convicted after September 9,1977 is to be fifteen (15) days per month rather than the twenty-five (25) days per month basis applicable to those convicted on or prior to September 9, 1977. The issue presented is whether the application of this 1977 amendment to persons who committed offenses on or prior to September 9, 1977, but who were convicted subsequent to September 9, 1977 violates the ex post facto prohibitions of the United States and Louisiana constitutions as interpreted in State v. Curtis, supra.

That the statute has been changed to some inmate’s disadvantage after the commission of the offense is clear. Prior to 1977, eligible inmates, on recommendations based on a thorough evaluation of their behavior, work performance and efforts toward self-improvement, could receive a credit of good time of approximately forty-five percent, i. e. “twenty-five days per month for time actually served.” Following the amendment, this provision allowing for a maximum diminution of sentence of approximately forty-five percent would still apply to inmates convicted on or before September 9, 1977. However, under the amendment as written, eligible inmates convicted on September 10, 1977 or thereafter, regardless of the date of the commission of the offense, can only receive a maximum diminution of sentence of approximately twenty-five percent, i. e. “fifteen days per month for time actually served.” The pertinent inquiry is whether this change is the type of retroactive law prohibited by the ex post facto clauses.

It has been stated that “any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the crime at the time it was committed, or which alters the situation of the accused to his disadvantage.” In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890), quoted in State v. Curtis, supra (emphasis added). Applying these principles, courts have held that the ex post facto clause prevents legislatures from retroactively increasing punishment for past criminal acts and consequently have struck down as unlawful increases in punishment retroactive changes in post conviction treatment of individuals. See Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); In re Medley, supra; State v. Bullock, 263 La. 946, 269 So.2d 824 (1972); State ex rel. Woodward v. Board of Parole, 155 La. 699, 99 So. 534 (1924). In State v. Curtis, supra, we found that the changes in La.R.S. 15:571.3 relative to eligibility for diminution of sentence for good behavior fell within this classification. We conclude that the change in La.R.S. 15:571.4 is similarly unconstitutional.

Under the rationale of Curtis and the cases relied upon therein, there is no analytical distinction between a change in eligibility for diminution of sentence for good behavior and a change in the basis for computing good time credits. While there is no vested right in either situation, both amendments are not simply “minor changes in the handling of prisoners” which should not automatically trigger application of the ex post facto prohibition, but rather significantly affect “release eligibility.” State v. Curtis, supra. Thus La.R.S. 15:571.4(0) may not operate against inmates who committed the offense for which they have been sentenced prior to the enactment and effective date of Acts 1977, No. 665, § 1. Rather the controlling date for application of the statutory provisions must be the date the offense was committed. Thus under the pertinent legislation: (1) any person confined to the custody of the Department of Corrections who committed the offense for which he has been sentenced on or prior to September 9,1977, and who would otherwise be eligible for diminution of sentence for good behavior, see discussion of statutory eligibility, supra, must be eligible for a maximum of twenty-five days good time credit per month; (2) any person confined to the custody of the Department of Corrections who committed the offense for which he has been sentenced on September 10, 1977 or thereafter, and who is otherwise eligible for diminution of sentence for good behavior, is only eligible for a maximum of fifteen days good time credit per month.

Forfeiture of Good Time By Inmates Whose Parole Has Been Revoked

Prior to 1972, La.R.S. 15:571.4(B), the statutory provision authorizing diminution of sentence for good behavior for persons committed to the custody of the Department of Corrections, was silent as to the effect of parole revocation on previously earned good time. See Acts 1964, No. 426, § 2. However, in 1972, the statute was amended to provide that “[g]ood time which has been earned will not be forfeited except that an inmate . . . who is returned to an institution due to revocation of parole will forfeit all good time earned on that portion of sentence served . . . prior to parole.” Acts 1972, No. 739, § 1 (emphasis added). The Act further provided that it was applicable to all inmates then in custody or thereafter sentenced to the department of Corrections but did specifically state that “parole violators presently in custody will not forfeit good time earned on that portion of their sentence served prior to parole . . .” Acts 1972, No. 739, § 2. The effective date of the Act was July 26, 1972.

In 1974, however, La.R.S. 15:571.4(b) was again amended in this regard to provide that “[a]n offender who is returned to an institution due to revocation of parole will forfeit all good time earned on that portion of the sentence served prior to parole up to a maximum of one hundred and eighty days.” Acts 1974, No. 200, § 1 (emphasis added). The Act further stated that “[t]he provisions of this Act relative to the maximum good time forfeitable upon parole revocation shall be retroactive.” Acts 1974, No. 200, § 2. Thus by its terms La.R.S. 15:571.4(B), interpreted with its various amendments and their effective dates, presently provides that parole violators in custody as of July 26, 1972 were not subject to forfeiture of good time earned on that portion of their sentence served prior to parole, but that all other inmates then in custody or thereafter sentenced to the Department of Corrections, regardless of the date of the commission of their offense or of their parole, would forfeit all good time earned on that portion of their sentence served prior to parole up to a maximum of 180 days when their parole is revoked and they are returned to the Department of Corrections institution.

It has been argued, however, that these provisions on forfeiture of good time upon revocation of parole are in conflict with general statutory provisions on parole revocation and that the latter provisions should control. In 1952, the legislature revised this state’s statutes and at that time provided with respect to parole revocation as follows:

If it is determined that the parolee has violated his parole . . . the Board shall revoke the said parole and the said parolee may be required to serve out the whole term for which he was sentenced, subject to the deduction of the time he had served prior to his parole and to any diminution of sentence for good behavior he shall have earned or may thereafter earn.

Acts 1952, No. 162, § 8 (emphasis added). Although the statute was amended in 1956, the language with respect to diminution of sentence for good behavior remained unchanged. Acts 1956, No. 66, § 1. In 1968, La.R.S. 15:574.9(E), the above mentioned provision, was amended to provide as follows:

When the parole of a parolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the institution from which he was paroled to serve the remainder of his sentence as of the date of his release or parole, subject to consideration by the board of any commutation of the sentence, the time he served prior to his parole, and any diminution of sentence earned for good behavior while in the institution.

Acts 1968, No. 191, § 1 (emphasis added). The effective date of this Act was July 31, 1968. The legislature again amended the statute in 1974, but the language with respect to diminution of sentence for good behavior was not altered. Acts 1974, No. 203, § 1.

Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible, but that if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); Teachers Retirement System v. Vial, 317 So.2d 179 (La.1975). See also Sutherland, Statutory Construction, § 51.05 (4th ed. 1974). Applying this principle we conclude that the controlling provision with respect to forfeiture of good time in the present context is La.R.S. 15:571.4. That statute deals specifically with procedures for earning, computing and forfeiting good time, while La.R.S. 15:574.9 deals generally with parole revocation, simply referring to diminution of sentences for good behavior in one subsection. Thus, the language in La.R.S. 15:574.9 as amended by Acts 1968, No. 191, § 1 and Acts 1974, No. 203, § 1 that a parolee is to serve the remainder of his sentence, following revocation, subject to “any diminution of sentence earned for good behavior while in the institution” must be read together with and is modified by the language in La.R.S. 15:571.-4(B), as amended by Acts 1972, No. 739, § 1, Acts 1974, No. 200, § 1 and Acts 1977, No. 665, § 1, relative to forfeiture of good time upon a parole revocation.

Having determined that La.R.S. 15:571.4(B) prevails insofar as there is any conflict with La.R.S. 15:574.9, we must now determine whether the application of the 1972 provisions providing for forfeiture of good time for all inmates returned to an institution for parole violation on or after July 26, 1972, as amended retroactively in 1974 to provide for a maximum good time forfeitable, violates the ex post facto prohibitions in both the United States and Louisiana Constitutions. It is well settled that any law passed after the commission of an offense which in relation to that offense, or its consequences, alters the situation of a party to his disadvantage is an ex post facto law. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1978); In re Medley, supra; State v. Curtis, supra. As noted in Curtis, “a major principle underlying the ex post facto proscription is that laws which adversely affect individuals who have committed particular past acts failed to provide a fair warning of the extent to which that person can be punished” and that “retroactive legislation frustrates reliance upon existing law and does not serve an object of criminal law by providing guidance for conduct.”

Applying these basic principles to the statute providing for forfeiture of good time earned on that portion of a sentence served prior to parole when parole is subsequently revoked, we conclude that a violation of the ex post facto prohibitions occurs when the statute operates against a person who was paroled prior to July 26, 1972, the effective date of Acts of 1972, No. 739, § 2. However, it is not an ex post facto law to apply the provision to inmates paroled thereafter. In those cases, at the time of parole, inmates were or are put on notice by the wording of the statute that should they violate a condition such that parole is revoked and they are returned to the institution, they will as a consequence thereof forfeit good time credit. Thus the date of parole, rather than the date of the commission of the offense, triggers the application of the forfeiture provisions. Cf. State v. Williams, 358 So.2d 943 (La.1978); State v. Guidry, 169 La. 215, 124 So. 832 (1929); Lafave and Scott, Criminal Law § 12 (1969).

Thus in summary, all inmates paroled prior to July 26,1972, may not be subjected to the forfeiture provisions, while all inmates paroled on July 26,1972 or thereafter shall, upon their return to the institution following revocation of parole, forfeit all good time earned on that portion of the sentence served prior to parole up to a maximum of 180 days. La.R.S. 15:571.4(B) as amended by Acts 1972, No. 739, § 1 and modified by Acts 1974, No. 200, § 1.

Having resolved the various legal issues presented in these nine consolidated cases, we now turn to the specific allegations in each petition:

In State ex rel. Bickman v. Dees, 367 So.2d 283; State ex rel. Bell v. Dees, No. 62,696; State ex rel. Wade v. Dees, No. 62,800; State ex rel. Cornell v. Dees, No. 62,802; and State ex rel. Gifford v. Dees, No. 62,918, each petitioner states that the offense for which he is incarcerated was committed prior to September 10, 1977, but after September 15, 1975. Assuming the correctness of the allegations, for the reasons assigned above, the classification of petitioners’ sentences as without benefit of diminution of sentence for good behavior is improper at this time, and the cases are remanded to their respective district courts for resentencing under the discretionary authority vested with the trial judge by La. R.S. 15:571.3(C), as amended by Acts 1975, No. 727, § 1, the law in effect at the time of the commission of the offenses. In particular, the sentence shall state whether, in his discretion, the trial judge considers petitioner entitled to diminution of sentence for good behavior. It is additionally noted that since the offenses of each petitioner were committed prior to September 10, 1977, should petitioner be eligible for good time, the appropriate basis for computation is maximum of twenty-five (25) rather than fifteen (15) days per month. See La.R.S. 15:571.4(B) and discussion supra.

In State ex rel. Stevens v. Dees, No. 62,717 and State ex rel. Hinkley v. Phelps, No. 63,072, each petitioner states that his offense(s) was (were) committed prior to September 10,1977. Assuming the correctness of these allegations, for the reasons assigned above, the cases are remanded to the respective district courts with instructions to order the Department of Corrections to recompute petitioners’ good time allowance at the rate of a maximum of twenty-five (25) days per month pursuant to La.R.S. 15:571.4(B) as in effect at the time of the commission of the offenses. With respect to Hinkley, it is specifically noted that because he is entitled to have diminution of sentence for good behavior computed on the basis of twenty-five (25) days per month, there is no merit to his argument that his guilty plea was involuntary due to misinformation given to him by the trial court relative to his good time release date.

In State ex rel. Paulhus a/k/a O’Brien v. Custodian of Records, et al, No. 62,969, and State ex rel. Manuel v. Phelps, No. 63,069, each petitioner complains of the forfeiture of good time he accumulated pri- or to parole when he was subsequently returned to the institution following parole revocation. Petitioner Paulhus a/k/a O’Brien alleges that he was released on parole on September 20, 1974, while petitioner Manuel asserts that his parole release date was March 13, 1973. Assuming the correctness of these allegations, for the reasons assigned above, the petitioners are not entitled to relief. Since they were both paroled after the July 26, 1972 effective date of La.R.S. 15:571.4(B) as amended by Acts 1972, No. 739, § 1 [subsequently modified by Acts 1974, No. 200 § 1], they were informed on the date of release that should they later have their parole revoked and be returned to the institution they would forfeit good time earned on that portion of the sentence served prior to parole.

For the reasons assigned, the writs in State ex rel. Bickman v. Dees, 367 So.2d 293; State ex rel. Bell v. Dees, 367 So.2d 293; State ex rel. Stevens v. Dees, 367 So.2d 293; State ex rel. Wade v. Dees, 367 So.2d 294; State ex rel. Cornell v. Dees, 367 So.2d 294; State ex rel. Gifford v. Dees, 367 So.2d 294; and State ex rel. Hinkley v. Phelps, 367 So.2d 294 are granted and the cases are remanded to their respective district courts for further proceedings in accordance with law.

For the reasons assigned, the writs in State ex rel. Paulhus a/k/a O’Brien v. Custodian of Records, et al, 365 So.2d 828, and State ex rel. Manuel v. Phelps, 365 So.2d 828, are denied.

SANDERS, C. J., and MARCUS, J., dissent, adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.

      . The 1972 amendment clarified eligibility for good time of inmates sentenced to life imprisonment, as well as requiring the establishment of “procedures for awarding and recording of good time.”

      . La.Const. Art. 3, § 19 (1974) provides as follows:
      Section 19. All laws shall take effect on the sixtieth day after final adjournment of the session in which they were enacted, and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.
      The general effective date for the 1975 regular session was September 12, 1975, while for the 1977 regular session it was September 9, 1977. Acts 1975, No. 727, however, specifically stated that it applied after September 15, 1975. Acts 1977, No. 633 provided that the act applied after September 9, 1977. While the controlling event established in the act was the sentencing of the defendant as a habitual offender rather than the commission of the offense, these dates rather than the general effective dates are employed to trigger application of the statutes under Curtis. This procedure is used for purposes of clarity and ease of application, as well as to comply with the constitutional language that “any bill may specify an earlier or later effective date.” It should be noted that the difference between the general effective dates and the specified dates stated in the acts is only a few days in favor of the defendant.

      . The legislature itself impliedly acknowledged the true import of the change in the basis for computing good time by having the amendment providing for a maximum credit of fifteen days per month applicable only to those inmates convicted after September 9, 1977, leaving intact the provisions for a twenty-five day maximum for those convicted on or prior to that date.

      . At this point, because the issue is not presented by any of the cases before us, we have not considered whether there are any ex post facto problems relative to inmates who committed offenses before the effective date of Acts 1972, No. 739, § 1, the provision which sets forth computation on the basis of twenty-five days per month.

      . The language relative to maximum good time forfeitable was carried over when La.R.S. 15:571.4 was amended in 1977 to change the basis for computation of good time from a maximum of twenty-five days per month to a maximum of fifteen days per month. Acts 1977, No. 665, § 1. See discussion of computation of good time, supra.

      . It is noted that while La.R.S. 15:574.9(E) refers to revocation of parole for a “condition” violation La.R.S. 15:574.10 provides that when parole is revoked for conviction of a felony, “[t]he term for which the defendant shall be imprisoned as a parole violator shall be the same as that provided in cases of revocation for violation of the conditions of parole.” See Acts 1968, No. 191, § 1.

      . At the time defendant pleaded guilty, the trial judge allegedly informed defendant of his good time release date based on a maximum of twenty-five (25) days per month. Petitioner complained that if he was indeed actually eligible for a maximum good time credit of only fifteen (15) days per month, his plea was void.


text:
    STATE of Louisiana ex rel. Joseph BICKMAN v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62496.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Joseph Bickman, applying for writ of certiorari (Parish of Orleans).

Writ granted. See Per Curiam 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. Kent BELL v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62696.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Kent Bell, applying for writ of certiorari (Parish of Orleans).

Granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. Ray STEVENS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62717.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Ray Stevens, applying for writ of certiorari (Parish of Calcasieu).

Granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. Glenn WADE v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62800.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Glenn Wade applying for writ of certiorari (Parish of Orleans).

Granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. Keith CORNELL v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62802.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Keith Cornell, applying for writ of certiorari (Parish of Orleans).

Writ granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. David GIFFORD v. Hayden J. DEES, Warden.
    No. 62918.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: David Gifford, applying for writ of certiorari (Parish of Orleans).

Writ granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.