text:
    Ralph J. HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 78-1763.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Ralph J. Hodges appeals from an order revoking his probation, contending that the revocation was improper. His argument has merit.

Appellant’s probation supervisor filed an affidavit in which he alleged that appellant had violated the terms of probation by committing child abuse and aggravated battery on three children. At the revocation hearing, however, the state produced no evidence connecting appellant to the child abuse and aggravated battery. Rather it presented evidence to demonstrate that appellant was guilty of battery of a law enforcement officer upon three members of the Tampa Police Department, and the court revoked probation on that basis. This was error since a court may not revoke probation for a violation not alleged in the charging affidavit. E. g., Mack v. State, 342 So.2d 562 (Fla.2d DCA 1977). Accordingly, we reverse and remand the case with directions that the trial court reinstate appellant’s probation.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.

      . The state will, of course, be free to seek the revocation of appellant’s probation for battery of the police officers.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael H. RUSU, Appellant, v. STATE of Florida, Appellee.
    No. 78-2127.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation supervisor filed an affidavit charging appellant with violating conditions (e) and (h) of his probation. At the hearing on the affidavit, the trial court found that appellant had violated condition (h) and revoked probation. We affirm that revocation, but we remand the case for correction of the written revocation order.

Owing to an apparent clerical error, the order recites that appellant violated not only condition (h) but also condition (e). Since at the hearing the court only found that appellant had violated condition (h), it should now remove any reference to condition (e) from its order. Brewster v. State, 352 So.2d 1267 (Fla.2d DCA 1977).

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


author: BOARDMAN, Judge.

text:
    In re the Matter of Cheryl Joldersma. Cheryl JOLDERSMA, Petitioner, v. Barbara B. STEWART, Respondent.
    No. 79-134.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Robert F. Nunez and Christopher C. Ferguson, St. Petersburg, for petitioner.
    Peter N. Meros, of Meros, Coit, Edman, Meros & Smith, St. Petersburg, for respondent.
   BOARDMAN, Judge.

Cheryl Joldersma petitions for certiorari review of a court order commanding her to answer certain questions at oral deposition. We grant the petition.

Mrs. Barbara Stewart filed a petition for dissolution of her marriage. Respondent Dr. John Stewart filed a response admitting that the marriage was irretrievably broken and that he was willing and financially able to provide both child support and alimony.

Barbara Stewart subpoenaed Cheryl Jold-ersma, Dr. Stewart’s nurse, to appear for deposition. At the deposition Ms. Jolders-ma declined to answer the following questions:

Q. Do you have any source of income other than the $154.00 a week from Dr. Stewart or from his business?
Q. How long have you been — are you dating Dr. Stewart?
Q. Are you living with Dr. Stewart?
Q. What kind of car do you drive?
Q. Has he written you a check on more than one occasion?
Q. Have you had sexual intercourse with Dr. Stewart?
Q. Who is the lawnman? What’s the lawnman’s name?
Q. Are there any other regular household bills that you have?
Q. Have you been on vacations with him?

Mrs. Stewart filed a motion requesting that Cheryl Joldersma be held in contempt for failure to answer those questions. After a hearing the trial court ordered Ms. Joldersma to answer these questions within ten days and required her to pay $66.20 costs. Under these circumstances, we hold that the trial judge’s order departed from the essential requirements of law.

Rule 1.280(b), Florida Rules of Civil Procedure, provides that the scope of discovery is restricted to that which “is relevant to the subject matter of the pending action . .” Section 61.08(2), Florida Statutes (1977) provides: “In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.” Thus, where the subject matter is alimony, only those facts which are “necessary to do equity and justice . . . .” are discoverable.

In Williamson v. Williamson, 367 So.2d 1016 (Fla.1979) the Florida Supreme Court held that there are circumstances where conduct may be a factor in determining the amount of an alimony award. However, it expressly limited the effect of Williamson to the facts of that case.

Today we hold only that where an analysis of the need of one spouse and the ability of the other to pay demonstrates that both parties will suffer economic hardship as a result of any division of available resources the court might make, the court may then consider, as an equitable circumstance under section 61.08(2), Florida Statutes (1975), any conduct of either party which may have caused the difficult economic situation in which they stand before the court.

Williamson, supra, at 1019. In the case before us Mrs. Stewart alleged in her petition for dissolution that Dr. Stewart had sufficient funds to provide alimony. Dr. Stewart admitted that allegation in his response. Therefore, Williamson does not apply-

We do not suggest that a party’s admission that he has the ability to pay alimony would necessarily preclude legitimate discovery into the extent of his ability to pay. However, the questions at issue here were not reasonably calculated to obtain this kind of information. Petitioner, who is not a party to the dissolution proceedings, should not be required to answer these irrelevant questions.

Accordingly, the petition for writ of cer-tiorari is granted and the order under review is vacated.

GRIMES, C. J., and RYDER, J., concur.


author: MILLS, Acting Chief Judge. MASON, ERNEST E.,

text:
    James D. AKERS, Appellant, v. STATE of Florida, Appellee.
    No. KK-157.
    District Court of Appeal of Florida, First District.
    April 26, 1979.

      Michael J. Minerva, Public Defender, Randolph P. Murrell, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

A jury convicted Akers of armed robbery. The trial court adjudicated him guilty and sentenced him to seven years imprisonment. He appeals contending the court erred in denying his motion for judgment of acquittal based on the State’s failure to adduce evidence during the trial that the prosecution of the crime was commenced within the two year statute of limitations. We agree and reverse.

On 7 December 1977, the State filed an information charging Akers with an armed robbery which occurred on 28 July 1973. Akers filed a motion to dismiss on the ground that the prosecution of the case was not commenced within two years after the offense charged occurred.

At the hearing on the motion, the State adduced evidence that an arrest warrant was issued on 1 August 1973 and delivered to the sheriff’s office on 2 August 1973 where it was filed in suspense awaiting Akers’ discharge from an out of state prison. The arrest warrant was given to a deputy on 15 September 1975 for service but service was not obtained until 10 November 1977. Akers’ motion was denied.

The State did not amend its information to allege these facts nor did it produce evidence at trial that prosecution of the crime was commenced within the period of limitation. The timely issuance of a warrant constitutes commencement of a prosecution for the purpose of tolling the statute and an information filed beyond the statutory period is effective to continue a prosecution thus begun. Rouse v. State, 44 Fla. 148, 32 So. 784 (1902); Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943).

Prosecution for offenses not punishable by death must be commenced within two years after commission. Section 932.465(2), Florida Statutes (1973).

“The time within which an offense is committed is a jurisdictional fact in all cases subject to limitation.” Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946). “A most significant burden of proof is placed upon the State in order to proceed once the jurisdiction of the court is questioned [by] the raising of the statute of limitations.” State v. King, 282 So.2d 162 (Fla.1973).

As to all offenses not punishable by death, not only should the information allege, but the State must prove, the institution of prosecution for the offense charged within two years after the offense was committed. Horton v. Mayo, supra.

Upon the trial of a criminal case, the law places the burden of proof on the prosecution to show that the commission of the offense as charged was committed within the two year period prescribed by statute. Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944).

As required by Florida Rule of Criminal Procedure 3.190(b), Akers timely moved to dismiss the information. The motion should have been granted because the information on its face showed that the crime charged was barred by the statute of limitations. However, on the basis of the facts submitted by the State at the hearing, the State should have been permitted to amend its information to allege these facts. This was not done but is not an issue before us. Nevertheless, the State should have moved to amend its information which it did not do. Having failed to do this, the State should have produced the evidence at trial which it produced at the hearing on Akers’ motion. See Horton v. Mayo, supra. This it did not do and by failing to prove this jurisdictional fact it failed to carry the burden of proof required of it by law. The trial court should have granted Akers’ motion for judgment of acquittal.

The law applicable to this case compels us to reverse the judgment appealed.

ERVIN, J., concurs.

MASON, ERNEST, E., Associate Judge, concurs in part and dissents in part.

MASON, ERNEST E.,

Associate Judge, concurring in part and dissenting in part.

I agree that the judgment and sentence should be reversed but I do not agree that the appellant should be discharged. Rather, the cause should be remanded with direction to the trial court to set aside the judgment and sentence with leave to the State to amend the information to allege facts which, if proven, would toll the running of the statute of limitations.


text:
    Vincent L. “Larry” SCHUEREN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. KK-185.
    District Court of Appeal of Florida, First District.
    April 26, 1979.

      Clifford L. Davis, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks reversal of a judgment and sentence for conspiracy to possess more than 100 pounds of marijuana, contending that there was insufficient evidence that he committed that offense, and that the circuit court had no jurisdiction to try him on that charge. We agree and reverse on both points.

The only tangible evidence presented against appellant was (1) a wire tap tape showing that he had relayed information by telephone to co-defendant Mitchell that certain parties in Gainesville had a quantity of marijuana for sale, and (2) evidence that he had later taken the Gainesville parties to Mitchell’s residence when they brought the marijuana to Tallahassee for examination by Mitchell and a third co-defendant, Ryder. The record also reveals, however, that Mitchell and Ryder were not seriously interested in purchasing the marijuana and that they did not in fact purchase it. Further it was shown that the Gainesville parties, Toth and Workman, were arrested on their way back to Gainesville and thirty pounds of marijuana were seized from their vehicle.

The evidence was clearly insufficient to prove that appellant conspired to possess the marijuana. In Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), the court vacated a judgment for possession of marijuana, finding:

“At best, the evidence [showed] that appellant brought the parties to the transaction together and expected to be paid for such service. There is no evidence that appellant could have personally carried through with the sale or could have forced [the seller] to consummate the sale.”

Similarly here the state’s proof showed only that appellant was a go-between in a transaction involving others, and that in fact that transaction never proceeded beyond preliminary stages. Nowhere in the State’s case is there any evidence that appellant sought or agreed to obtain possession or exert dominion and control over the Gaines-ville marijuana at any time. Furthermore there is no evidence that Mitchell and/or Ryder ever formed the requisite intent to possess the marijuana. In short the evidence was simply insufficient to prove the conspiracy charged.

In addition, we agree with appellant that the circuit court had no subject matter jurisdiction to try him on the charge. This court held in Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978) that the crime of conspiracy to possess in excess of 100 pounds of cannabis is a first degree misdemeanor, not a third degree felony triable in circuit court. The State concedes this but argues that because the misdemeanor conspiracy count against appellant was part of the same information in which Toth and Workman were charged with felony counts, the circuit court did have jurisdiction.

Article V, Section 20(c)(3) of the Florida Constitution provides that the circuit courts “shall have . . . jurisdiction . of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged . . . .” In State v. Croy, 289 So.2d 398 (Fla.1974), the court found that a felony charge of drug paraphernalia possession had “aris[en] out of the same circumstances” as a misdemeanor charge of possession of less than five grams of marijuana, where both proscribed items had been discovered “at the same time and place, in the possession of the same persons,” and the drug paraphernalia charge was “a related crime” to the marijuana possession charge. Here, however, the felony charges allegedly arising out of the same circumstances as the misdemeanor conspiracy charge against appellant were counts of drug paraphernalia and marijuana possession against Toth and Workman, and the evidence against appellant was not discovered at the same time or place as was that against Toth and Workman. In addition, the record reveals that appellant was tried separately from Toth and Workman so the interests of judicial efficiency and economy of time contemplated by the constitutional provision were not served.

Thus the circuit court’s jurisdiction did not extend to this charge, and the judgment and sentence are therefore a nullity. Waters v. State, 354 So.2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977). Appellant’s remaining point is controlled by this court’s decision in Mitchell v. State (Fla. 1st DCA 1979), Case No. JJ-53-55, opinion filed January 16, 1979 (rehearing pending).

REVERSED.

MILLS, Acting C. J., and ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Arlen Kim LESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-351.
    District Court of Appeal of Florida, Second District.
    April 27, 1979.
   PER CURIAM.

Appellant’s motion to vacate, set aside, or correct his sentence, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure, was summarily denied by the trial court. We affirm in part and reverse in part.

If a motion to vacate alleges facts which, if true, would entitle a prisoner to relief, then the judge reviewing the motion must attach to his order denying the motion that portion of the record which conclusively shows that the prisoner is entitled to no relief, or he must hold an evidentiary hearing. Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

Appellant made two allegations: (1) that his plea was involuntary because he was heavily sedated on the morning of his plea hearing, and (2) that his court-appointed counsel was ineffective in that he failed to inform appellant that he had a possible defense of lack of mens rea. These allegations, if true, would entitle appellant to the relief sought. Capshaw v. State, 362 So.2d 429 (Fla. 2d DCA 1978).

The portions of the record provided by the trial judge refute the first allegation. The trial court’s summary denial of the motion is therefore affirmed as to that allegation. However, there is nothing in the record before this court which refutes appellant’s allegation of ineffective assistance of counsel. The cause is therefore remanded for an evidentiary hearing on that allegation.

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


author: OTT, Judge.

text:
    Mary Joan CONIGLIO, Appellant, v. C. John CONIGLIO, Appellee.
    No. 78-13.
    District Court of Appeal of Florida, Second District.
    April 27, 1979.
    James A. Shook and S. Ray Gill, Ocala, for appellant.
    T. Richard Hagin of Getzen & Hagin, Bushnell, for appellee.
   OTT, Judge.

This appeal is from a post judgment of dissolution order of the trial judge granting the husband certain modifications of the monthly payments payable to the wife. We reverse in part.

Based upon his previous judgment of dissolution and the stipulation of the parties upon which it was predicated, the trial judge properly found that all of the monthly payments to the wife were an inseparable part of “a true property settlement agreement.” The wife transferred to the husband all of her interest in the substantial real estate holdings of the parties in return for the financial payments to her or in her behalf. The trial court could not reduce the monthly payments payable to the wife and it properly declined to do so as to future payments. See Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977); Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976).

That part of the order of modification which reduced the arrearages for past unpaid payments of the husband to the wife was improper and is, therefore, reversed and remanded for the entry of a judgment for the full amount of the arrearages.

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


text:
    Edward Richard SHORES, as Personal Representative of the Estate of Jessie Ruth Shores, Deceased, Appellant, v. Norbert WEGMANN, M.D., Individually and as an agent of the Washington County Hospital, Appellee.
    No. LL-81.
    District Court of Appeal of Florida, First District.
    May 1, 1979.
    Rehearing Denied May 18, 1979.
    Paul G. Komarek of Mann & Komarek, P. A., Lynn Haven, for appellant.
    J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for appel-lee.
   PER CURIAM.

Shores appeals a final summary judgment entered in favor of appellee, Dr. Weg-mann. Shores argues that summary judgment was not proper because appellee failed to conclusively show that Wegmann exercised the degree of skill or care consistent with the standards of his community or of a comparable community in rendering medical care to the decedent. We agree and reverse.

A careful reading of the record shows that it is silent with regard to whether Wegmann exercised the degree of skill required to preclude liability. A record that is silent on a determinative issue of fact forecloses summary judgment, for the movant’s burden is to show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979). Reversed and Remanded.

MELVIN, Acting C. J., and BOOTH and LARRY SMITH, JJ., concur.


text:
    Abraham SPAULDING, Appellant, v. FORD MOTOR CREDIT COMPANY, Appellee.
    No. 78-1314.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Frank, Strelkow & Gay and Carl Schmitt, North Bay Village, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Gordon C. Brydger, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The final summary judgment appealed from is reversed and the cause remanded to the trial court for further proceedings based on the authority of Montgomery Enterprises, Inc. v. The Atlanta National Bank of Jacksonville, 338 So.2d 1078 (Fla. 1st DCA 1976).


text:
    Mary Lucille Turrell MOSELEY, Appellant, v. H. Patricia TURRELL, Appellee.
    No. 78-1509.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Stephen A. Freeman, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton; John F. Allison, Miami, for appel-lee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Williams v. Foerster, 335 So.2d 810 (Fla.1976); and Denham v. Sexton, 48 So.2d 416 (Fla.1950). In addition, the trial court’s finding of consideration is supported by the record. See Cheeseboro v. Estate of Harris, 333 So.2d 79 (Fla. 1st DCA 1976).


text:
    Manuel BLANCO, Cenen Gonzalez, Manuel Rodriguez Garcia, and Arthur Hector Leon, Appellants, v. The STATE of Florida, Appellee.
    No. 78-1687.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.

      Robert A. Spiegel, Coral Gables, Richard J. Essen, Miami, for appellants.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before BARKDULL and KEHOE, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978); Section 371.58, Florida Statutes (1977); United States v. One (1) 43 Foot Sailing Vessel Winds Will, License O.N. 531317/U.S. and Equipment, 405 F.Supp. 879 (S.D.Fla.1975), affirmed 538 F.2d 674 (5th Cir. 1976).


text:
    W. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1947.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On this appeal by a juvenile, the respondent below, from an adjudication of delinquency, the appellant contends the evidence was insufficient to support the adjudication and that the court erred in denying his motion for a judgment of acquittal made on that ground.

On consideration of the record, briefs and argument we find merit in the appellant’s contention of insufficiency of the evidence to support the adjudication. See Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968); Johnson v. State, 249 So.2d 452 (Fla. 4th DCA 1971); McBride v. State, 338 So.2d 567 (Fla. 1st DCA 1976).

Reversed.


author: BARKDULL, Judge.

text:
    Albert W. TRESVANT, Sr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-2002.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    James W. Matthews, Miami, for appellant.

      Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Albert W. Tresvant, Sr. takes this appeal from a judgment of conviction, entered pursuant to a jury verdict on the charges of I. Conspiracy to commit a felony (bribery); II. Bribery; III. Unauthorized compensation for official behavior.

Tresvant was charged, by indictment, with conspiracy to commit a felony, bribery, and unauthorized compensation for official behavior. He pleaded not guilty and moved to dismiss each count of the indictment. His motions to dismiss were denied, and he was subsequently tried before a jury.

The trial court erred in denying the motion to dismiss as to the conspiracy count. See: Goldberg v. State, 351 So.2d 332 (Fla. 1977), and this court’s opinion in State v. Giardino, 363 So.2d 201 (Fla.3d DCA 1978) relating to the same indictment.

On the other point on appeal, we defer ruling until the transcript of the testimony is forwarded to us for review.

Therefore, the conviction under Count I (conspiracy to commit a felony, to wit: bribery) be and it is hereby reversed and set aside with instructions to discharge the defendant from this charge. The appellant, through his counsel, shall file a copy of the trial transcript with this court no later than May 10,1979, pursuant to Florida Appellate Rule 9.200(f)(2).


text:
    George E. HOBBY, Appellant, v. BROADWAY-HALE STORES, INC., and Unemployment Appeals Commission, Appellees.
    No. 78-2302.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    George E. Hobby, in pro. per.
    James R. Parks, Miami, for appellees.
    Before PEARSON, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant complainant herein having filed a pro se notice of appeal from an order of the Unemployment Appeals Commission affirming a decision of the Appeals Referee holding the complainant disqualified from receiving benefits for having voluntarily left his employment without good cause attributable to his employer and having submitted the same upon a pro se letter requesting examination of the record, we consider the same as an appeal and brief filed. Thereupon: (1) the motion of the appellee Unemployment Appeals Commission to dismiss is denied, and (2) upon review of the record, we find no apparent basis for reversal and, accordingly, the order appealed is affirmed.

Affirmed.


text:
    Benjamin GLASER, Appellant, v. BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., a Florida Corporation, Appellees.
    No. 79-140.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Tobin & Thomson and Arthur M. Handel, Coral Gables, for appellant.
    Proby & Adkins, Coral Gables, and H. Lawrence Hardy, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and Hendry, JJ.
   PER CURIAM.

Affirmed. See Fla.R.Civ.P. 1.420(b) and E & E ELECTRIC Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA 1970); Lasley v. Cushing, 244 So.2d 770 (Fla. 1st DCA 1971); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So.2d 69 (Fla.3d DCA 1972).


text:
    James L. BARNES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-694.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    James L. Barnes, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 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, the denial of his motion is affirmed.


text:
    James Theotis SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 79-705.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    James T. Smith, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, 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, the denial of his motion is affirmed.

Affirmed.


author: BERANEK, Judge.

text:
    BOTAG MANUFACTURING, INC., and Mitchell Manufacturing Company, Appellants, v. Charles B. KLEINICKE et ux., Appellees.
    Nos. 77-721, 77-722.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Joseph S. Kashi of Druck, Grimmett, Scherer & James, Fort Lauderdale, for appellant — Botag.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellant— Mitchell.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   BERANEK, Judge.

This is an appeal by defendants from an order granting plaintiffs a new trial on damages only in a personal injury action. Plaintiffs were husband and wife suing for personal injury and loss of consortium. Plaintiff/husband sustained impairment of the vision in one eye as the result of being struck by a foreign object allegedly propelled through an unprotected chute on a lawnmower for which the defendants were alleged to be responsible. After a jury trial, a verdict was returned for $30,000 in the husband’s favor. A claim for loss of consortium by the wife was also submitted to the jury and a verdict in favor of the plaintiff/wife for “zero dollars” was returned. By order of March 7,1977, the trial court granted new trial to both plaintiffs on damages only. This order stated that the amount of the verdict shocked the conscience of the Court and that no jury of reasonable persons could return such a verdict. The case was appealed by defendants seeking to overturn the grant of the new trial and to reverse the trial court’s denial of defendants’ motions for directed verdicts on liability. By order of November 14, 1978, this Court temporarily relinquished jurisdiction to the trial court with the request that the trial judge set forth the reasons why he concluded that there was need for a new trial. This relinquishment of jurisdiction was specifically stated to be in accordance with Rule 1.530(f) of the Florida Rules of Civil Procedure and in accordance with the dictates of Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978).

Rule 1.530(f) Fla.R.Civ.P. states as follows:

(f) Order Granting to Specify Grounds. All orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.

Wackenhut Corp. v. Canty, supra, gives specific directions to trial courts entering orders for new trial. In this case, the trial court’s initial order was deficient and the court did not enter a proper order even after the relinquishment of jurisdiction. Instead, the trial court met with counsel and discussed the case at length. The trial judge then, instead of entering an order, simply sent the transcript of the hearing to this court with a statement that it contained the reasons for granting new trial.

We have reviewed the transcript and find the reasons stated therein are not sufficient to sustain the order granting new trial. We conclude in light of the stated reasons, that the trial court abused its discretion in granting a new trial as to both plaintiffs. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Wackenhut Corp. v. Canty, supra. The transcript states that the verdict of $30,000 was simply insufficient because the plaintiff had sustained a substantial eye injury. The trial judge stated that in his opinion eye injuries were particularly bad and that $30,000 was shocking. With due regard to the trial court, here he apparently acted as “a seventh juror with veto power” as is condemned by Wackenhut. The only other statement of a reason is that the jury knew from general knowledge and reading the papers that the “lawyers are making all the money” by taking cases on a contingency fee basis. The court stated that the $18,000 that would be left to the client after attorney’s fees was insufficient. The court’s own comments disclose there was absolutely nothing in the record of this trial to support the assumption that the jury was influenced in this regard. This reason is, therefore, insufficient as a matter of law. The grant of the new trial in regard to the verdict of $30,000 in favor of the plaintiff/husband is reversed and the matter remanded to the trial court with instructions to enter judgment on this verdict in plaintiff’s favor.

The grant of the new trial in regard to the zero verdict in favor of the plaintiff/wife on the consortium claim is also erroneous based on the reasons stated in the transcript.

Plaintiffs husband and wife were having serious marital problems before the accident and were divorced thereafter. None of the marital discord was due to the accident. In discussing this zero verdict the trial court stated that the award of “zero dollars” was “a fair award” in view of the marital problems. This is the reason stated and it does not support the grant of a new trial which is here reversed.

We have considered the defendants’ arguments regarding the question of liability and find them to be without merit.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY, C. J., concurs.

CROSS, J., dissents without opinion.


text:
    BLACKHAWK HEATING & PLUMBING COMPANY, INC., and Andrew Machata, Appellants, v. DATA LEASE FINANCIAL CORPORATION, a Florida Corporation, Roy Talmo and First National City Bank, a National Banking Association, Appellees.
    No. 77-1268.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellants.
    Robert T. Scott of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for ap-pellees, Data Lease Financial Corp. and Roy Taimo.
   PER CURIAM.

This is an interlocutory appeal seeking to overturn an Order of Reference to a Special Master. The order in question was entered on May 11, 1977.

This case has made frequent appearances in the appellate courts of the State. See: Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404 (Fla.1974); Data Lease Financial Corp. v. Blackhawk Heating & Plumbing Co., Inc., 325 So.2d 475 (Fla. 4th DCA 1975); Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 328 So.2d 825 (Fla. 1975); Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 352 So.2d 182 (Fla. 4th DCA 1977); Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 354 So.2d 1000 (Fla. 4th DCA 1977); Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 355 So.2d 533 (Fla. 4th DCA 1978); and Blackhawk Heating & Plumbing Co., v. Data Lease Financial Corp., 358 So.2d 1204 (Fla. 4th DCA 1978); cert. denied 364 So.2d 881 (Fla.1978).

We have reviewed the appellants’ arguments and find them to be without merit. The order which is the subject of this interlocutory appeal is, therefore, affirmed.

AFFIRMED.

CROSS, DAUKSCH and BERANEK, JJ., concur.


text:
    Joseph WITCHARD, Appellant, v. STATE of Florida, Appellee.
    No. 77-1399.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Richard L. Jorandby, Public Defender, Michael Dubiner, Legal Intern and Tatjana Ostapoff, Chief, App. Div., Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The cause is affirmed.

Appellant was sentenced to the county jail for one year imprisonment at hard labor. The words “at hard labor” are stricken from the sentence, McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

AFFIRMED AS MODIFIED.

LETTS and MOORE, JJ., and BURN-STEIN, MIETTE K., Associate Judge, concur.


text:
    Edward T. DREYER, Donald E. Robeson and Dreyer Real Estate, Inc., Petitioners, v. FLORIDA REAL ESTATE COMMISSION, an Agency of the State of Florida, Respondent.
    No. 77-1831.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.

      G. W. Hedman, Melbourne, for petitioners.
    Howard Hadley and Frederick H. Wilsen, Orlando, for respondent.
   BERANEK, Judge.

This is a petition for certiorari under Florida Appellate Rule 4.5(c)(1) from a final order of the Florida Real Estate Commission entered July 22, 1977. Petitioners are an individual real estate salesman, an individual real estate broker and a corporate real estate broker. The order in question revoked the registration certificates of each petitioner and it is this revocation which is questioned by certiorari.

The proceedings below began with the filing of an administrative complaint against the petitioners pursuant to Section 475.26 and Section 120.60, Florida Statutes (1977). The complaint was drawn in 14 counts and essentially alleged misuse of deposits in five different real estate sales transactions by the defendants’ failure to place these earnest money deposits in an escrow or trust account in violation of Sections 475.25(l)(a) and 475.25(l)(i), Florida Statutes (1977). In addition, it was alleged that real estate salesman Dreyer promised to pay an improper referral fee and that he failed to pay a promissory note when due. Each defendant was found guilty of all counts relating to the misuse of deposits and found not guilty of the counts relating to an improper referral fee and non-payment of a promissory note.

An evidentiary hearing occurred before a hearings officer. The officer filed a recommended order which was later adopted as the final order of the Real Estate Commission. This order found the defendants guilty of misconduct under the various counts regarding misuse of deposits. The individual defendants were found guilty of violating Sections 475.25(l)(a), 475.25(l)(i) and 475.25(3), Florida Statutes (1977). The registration certificates of all defendants were revoked.

The defendants seek review by certiorari and have raised 21 separate points on review. In view of this complex and broad appellate attack, it is necessary to review the proposed order which was eventually adopted by the Commission as the final order.

The order, in relevant part only, states as follows:

It is alleged that Edward T. Dreyer failed to place earnest money deposits in escrow in five separate real estate transactions; promised to pay a referral fee to a non-registrant; failed to pay a promissory note when due; and that by reason of the foregoing charges has been guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest, and untruthful that the money, property and rights of investors may not safely be entrusted to him.

With respect to Robeson and the corporate broker, the complaint alleges that Robeson should have known of Dreyer’s failure to place the five earnest money deposits in escrow and failed to direct the activities of the salesman whose license was held under the supervision of broker Robeson. One count alleges this constitutes a course of conduct or practice showing the registrants are so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of investors may not safely be entrusted to them.

Fifteen witnesses were called by Petitioner, two Respondents testified in their own behalf, and 25 exhibits were admitted into evidence.

FINDINGS OF FACT

At all times relevant herein Edward T. Dreyer (Dreyer) was a registered real estate salesman, Donald E. Robeson was a registered real estate broker, and Dreyer Real Estate, Inc. was a registered corporate broker.

During the period between January 23, 1975 and September 30, 1975 Dreyer received earnest money down payments from purchasers Rodriques for $875 on 1/23/75, the Beria Baptist Church for $2650 on 2/13/75, Yinoya for $800 on 3/12/75, Berger for $1700 on 5/14/75, and Behrendt for $800 on 9/30/75.

Checks payable to Dreyer Real Estate, Inc. from Behrendt and Rodriques were converted to cashier’s checks payable to Dreyer Real Estate, Inc. and the Behrendt payment was deposited in Dreyer Real Estate, Inc. account at First Citrus Bank of Indian River County, Vero Beach. Beh-rendt’s check (Exhibit 5) contained the notation ‘Deposit on Trust Malabar for E V2 of N Vi of Lot 11, 2T 29S R 37E.’ None of these down payments were deposited in Dreyer Real Estate, Inc.’s Trust Account. (Exhibit 14)

Dreyer Real Estate, Inc. Operating Account (Exhibit 15) shows a deposit of $2100 on 2/14/75, and $1400 on 5/22/75.

None of the buyers in the above transactions authorized Dreyer to use the down payments although Behrendt, whose check contained the notation that it was to be deposited in trust, told Dreyer, when he gave him the check that he (Dreyer) was the first one to be paid and felt by this comment he had given Dreyer tacit approval to use the money. All of these buyers expected their deposit to be returned if the transaction did not go through.

On December 9, 1975, after Dreyer became aware that he was under investigation, he prepared affidavits that the parties to the above transactions had allowed Dreyer Real Estate, Inc. to utilize the down payment or interim funds pending final disposition of the matter. These affidavits (Exhibits 2, 4, 8, 11, and 13) were executed by the buyers and sellers except for Exhibits 11 and 13 which Anderson refused to sign.

In July or August, 1975 Dreyer, who had a listing on property adjacent to property owned by Paul De Furia told De Furia that he would pay him $250 if he found a purchaser for the property Dreyer had listed. Subsequent thereto De Furia introduced Dreyer to one Trofibio who purchased the property in August, 1975. Although De Furia demanded his ‘finders fee’ Dreyer never paid De Furia.

On December 9, 1974 Dreyer executed a promissory note to a Mrs. Rice to evidence a loan from her of $1500. This note has not been paid.

Respondent Robeson is President and Active Firm Member of Dreyer Real Estate, Inc. He has been a broker since August, 1973 when he commenced so serving for Respondent, Dreyer Real Estate, Inc. He comes to the office almost every day, usually for a short time in the afternoon, and is generally aware of the transactions here involved.

During the time these transactions occurred the office was being moved and or/renovated and money for the improvements was needed. Dreyer told Robeson that the parties to these transactions had authorized the firm to use the deposits before the transactions closed and he (Robeson) did not question the statement. Robeson owns one share of the 60 shares outstanding in Dreyer Real Estate, Inc. Presumably the remaining shares are held by Dreyer.

Robeson paid little attention to the contracts or other transactions that occurred in the office and received 5% of the commissions earned by the office unless he was the salesman in which case he received the usual salesman’s commission of 50%.

In 1973 Dreyer’s license as a real estate broker was revoked. The grounds for revocation of this license were not presented at the hearing. Dreyer testified that he felt the only mistake he made in the transactions here involved was that he did not get authorizations from the parties to use the earnest money deposits at the time the contracts were executed.

CONCLUSIONS OF LAW

Section 475.25(1) F.S. provides in pertinent part that the registration of a registrant may be suspended for a period not to exceed two years upon a finding of fact showing that the registrant has:

“(a) • • • violated a duty imposed upon him by law or by the terms of a listing contract .
(d) Violated any provision of this chapter, or any lawful order, rule or regulation made or issued under the provisions of this chapter .
(i) Fail, if a broker, to immediately place, upon receipt, any money, fund, deposit, check or draft entrusted to him by any person dealing with him as a broker, in escrow with a title company or banking institution located and doing business in Florida, or, deposit said funds in a trust or escrow bank account maintained by him with some bank located and doing business in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized, or, if a salesman, fail to immediately place with his registered employer any money, fund, deposit, check or draft entrusted to him by any person dealing with him as agent of his registered employer.”

Section 475.25(3) F.S. provides in pertinent part:

“The registration of a registrant may be revoked . . . if he shall be found guilty of a course of conduct or practice which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.”

By failing to immediately place the earnest money deposit received from the buyers in escrow Respondents violated provisions of the real estate license law above quoted. Once these deposits have been placed in escrow the broker can disburse them only when properly authorized to do so. Even had the parties authorized Dreyer to use the down payment, which the evidence does not show, he could do so only after the down payment had been first placed in escrow.

Obviously the primary actor in the violations here involved was Dreyer. He sold the property, received the down payment, and failed to deliver these payments to his broker or to place them in the escrow account, which presumably was maintained for that purpose.

This was not an isolated transaction whereby one deposit was not placed in escrow, but appears to be the standard operating practices of the office. During the period December 31, 1974 to January 30, 1976 no deposits were made in the Dreyer Real Estate Inc. trust account. The five transactions presented in this case constitute a course of conduct clearly in violation of § 475.25(3) above quoted.

No action of a real estate broker or salesman can result in greater danger to the money and property of investors and those with whom the registrant may sustain a confidential relation than misuing (sic) funds entrusted to the registrant by his client.

Although Robeson was a passive participant in these transactions he has a positive duty to supervise the operations of the salesmen working under the authority of his registration. By failing to perform this supervision, albeit over the owner of the firm, Robeson must be charged with the sins of those for whom he is responsible. In the light of circumstances most favorable to him, Robeson was so incompetent or negligent that the money, property, transactions or rights of investors were seriously hazarded.

Count 12 alleges, and the evidence adduced, shows that Dreyer offered to pay De Furia, a non-registrant, a finders fee for locating a buyer for property Dreyer had listed. Section 475.25(l)(f) F.S. above quoted makes it an offense to pay a fee or share a commission with the non-registrant. All parties here agreed that no such fee was paid. Accordingly there is no violation of § 475.25(l)(f) F.S.

With respect to Count 13 of the Complaint alleging that Dreyer failed to pay the promissory note defendants are found not guilty. . . .

From the foregoing, it is concluded that Respondent, Edward T. Dreyer, Donald E. Robeson and Dreyer Real Estate, Inc. are guilty of all allegations in the Administrative Complaint as alleged except Charges 12 and 13;. ... It is, therefore,

RECOMMENDED that the registration of Edward T. Dreyer as a real estate salesman, the registration of Donald E. Robeson as a real estate broker, and the registration of Dreyer Real Estate, Inc. as a corporate broker be revoked.

DONE and ENTERED this 11th day of May, 1977, in Tallahassee, Florida.

/s/ K. N. Avers
K. N. AYERS
Hearing Officer
Division of Administrative Hearings
Room 530, Carlton Building
Tallahassee, Florida 32304.

We conclude that this order is supported by competent substantial evidence and that it is not subject to reversal based on any of the evidentiary arguments of the petitioners. See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978). This court will not substitute its judgment for that of the agency below on an issue of discretion. See Section 120.68(12) Florida Statutes (1977), and Wilson v. Pest Control Commission of Florida, 199 So.2d 777 (Fla.4th DCA 1967).

Petitioners’ major argument is that the salesman had the consent of the purchasers to use the down payments pending closing of the transactions. To support this contention, defendants offered affidavits which defendants had drafted and solicited from the parties involved in the transactions after the investigation as to alleged misconduct had begun. Each of these affidavits was signed after the transaction in question had been closed and completed. The recommended order finds that the purchasers did not in fact give their consent to the use of their deposits prior to the time of closing. The testimony of the various witnesses at hearing is entirely consistent with this finding. It is true that after closing the defendant Dreyer secured from some parties their after-the-fact-consent to the use of the deposit monies pending closing. Fortunately, the transactions involved here were successfully closed and most of the parties were satisfied with the results. The fact that these parties were in retrospect not unhappy with the salesman’s use of the deposit money prior to closing is certainly not determinative of the issue of whether this misconduct constitutes a statútory violation. Further, these consent forms signed by the parties after closing were totally irrelevant to the issue of whether the deposit monies had ever initially been placed in a trust or escrow account as required by the statute.

The evidence was clear that for a period of one year no deposits whatsoever were made into the firm trust account. Both the salesman and the broker defendants were aware of this. The real estate firm was in the process of relocating its office and these monies were needed for relocation expenses. All monies were simply deposited in the operating account of the firm and drawn upon. The five transactions in question established a course of conduct which was in direct violation of the statutory requirements of placing deposits in a trust or escrow account. Section 475.-25(l)(i) so provides and the regulations promulgated pursuant to Chapter 475 specifically require deposits to be held in trust pending a completed closing. The Florida Administrative Code Rule 21V — 14.04 is as follows:

Rights of Brokers in Deposits.
The interested parties involved, other than the broker, may by express agreement, alter the disposal of the deposit from that herein stated, but the burden shall be upon the broker to establish his good faith in the matter if such agreement is to his advantage.

Here the salesman and his supervising broker made no attempt to demonstrate any prior express agreement and offered no excuse or evidence of extenuating circumstances. They simply asserted that the money was needed and that the customers had no objections when they were asked after the completed transactions.

We hold the evidence here was sufficient to support the findings of the Commission below. The salesman and the broker violated both the letter and the spirit of the law in failing to place these deposits in trust or escrow. The salesman was certainly the more active of the two, but the broker violated his clear duty to supervise. There was absolutely no indication that the broker did anything to correct the situation of which he was aware and which was obviously in non-compliance with the law. The total failure of an active real estate brokerage firm to even use its trust account placed the broker on notice.

Petitioners argue that mere mismanagement of trust funds is not in and of itself sufficient to establish dishonest dealings on their part. Petitioners cite Waltman v. Florida Real Estate Commission, 254 So.2d 32 (Fla.3d DCA 1971) for this proposition. This very brief decision does not support such a position. More closely on point is Brod v. Jernigan, 188 So.2d 575 (Fla.2d DCA 1966). Therein the Second District Court of Appeal modified the suspension of a broker’s license where the record disclosed only a technical violation with extenuating circumstances by a broker who had not deposited a $100 earnest money deposit in a separate trust account. The court commented it was clear the situation amounted to only a technical violation and that it was an isolated incidence. Interestingly, the court did affirm a reprimand of the defendant and affirmed the finding of a statutory violation. The instant situation is much more aggravated in that a course of conduct was shown in five separate transactions where there was not the slightest attempt to comply with the trust or escrow account provisions of the statute.

Under all of the facts and circumstances presented below, we find the order of the Real Estate Commission as to the substantive violations is adequately supported by competent evidence. The finding that the violations constituted a course of conduct allows revocation under Section 475.25(3). As such, this Court actually has no authority to exercise discretion in reviewing whether the Commission order is a proper penalty for the offensive conduct. Florida Real Estate Commission v. Webb, supra, specifically so held. Since there was adequate evidence to support the findings of substantive violations against the individual salesman, the individual broker and the corporate broker, the penalty to be imposed was within the discretion of the Commission below.

The order below is affirmed.

AFFIRMED.

DOWNEY, C. J., and LETTS, J., concur.


text:
    PALM-AIRE COUNTRY CLUB APTS. CONDOMINIUM, INC., a Florida Corporation, not for profit, Leonard Gordon and Bernice Gordon, his wife, Individually and as representatives of the class, Frank A. Gordon, Individually and as representative of the class, Herman Roshwald and Elsa Roshwald, his wife, Individually and as representatives of the class, Joseph Cherry and Mary Cherry, his wife, Individually and as representatives of the class, Harry Sacks and Eve Sacks, his wife, Individually and as representatives of the class, Paul Peck and Elsie Peck, his wife, Individually and as representatives of the class, Appellants, v. F. P. A. CORPORATION, a Delaware Corporation, Orleans Construction Co. of Florida, Inc., a Florida Corporation, Appellees.
    No. 77-2121.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.

      Jeffrey E. Streitfeld of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellants.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees.
   PER CURIAM.

This interlocutory appeal relates to an order of September 17, 1977, entered in a condominium controversy. Appellants were plaintiffs below in a suit challenging a long-term recreational lease.

Basically, the order in question provided for the deposit of rent monies pursuant to Section 718.401(4) Florida Statutes (1977) and withdrawal of the deposit for the purposes of paying mortgage expenses. The withdrawal was based on motion by the defendants.

We have reviewed the three points raised by appellants and find them to be without merit. All issues posed in this appeal have been answered adversely to appellants’ position by this Court’s prior opinion in Palm-Aire Country Club Condominium Association No. 2, Inc. v. F.P.A. Corporation, 357 So.2d 249 (Fla. 4th DCA 1978), certiorari denied without opinion at 365 So.2d 713 (Fla.1978). The order appealed from is, therefore, affirmed.

AFFIRMED.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    Ben SMITH and Allstate Insurance Company, Appellants, v. Ruth G. COOPER and Louis Cooper et al., Appellees.
    No. 77-2578.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Jack Miller and Robert D. McAliley of Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellants.
    Louis H. Casson of Louis H. Casson, P. A., Boca Raton, for appellees-Ruth G. Cooper and Louis Cooper.
    Monroe Al Coogler, Jr., and Maureen L. McGill of Adams, Coogler, Watson & Smith, West Palm Beach, for appellees-Kings Point Housing Corp.
   PER CURIAM.

This is an appeal from a final judgment in favor of defendant below, Kings Point Housing Corporation. We find no error in the granting of the motion for judgment on the pleadings and the entry of the judgment thereon. The statements in the order regarding the limited application of the releases are not directly on appeal here and therefore we decline ruling on that point at this time.

The judgment appealed is AFFIRMED.

DOWNEY, C. J., and CROSS and DAUKSCH, JJ., concur.


text:
    BRUNSWICK CORPORATION, a Delaware Corporation, Appellant, v. CONCORDE YACHTS, INC., formerly known as Concorde Boats, Inc., a Florida Corporation, Daniel A. Murphy, Geraldine Murphy, Alexander Sharkey, Maureen Sharkey, Neville A. Chan, Hilda Chan, Loren Wilson, Nadine Wilson, International Maritime Developments, Inc., a Florida Corporation, Frances Burger, Claude Dorsy, Maureen Dorsy, Roger A. Bridges, Diana C. Bridges, George W. Treon and Marion E. Treon, Appellees.
    No. 78-79.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Harry S. Raleigh, Jr., of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, for appellant.
    Paul V. DeBianchi of Andrews & Lubbers, Fort Lauderdale, for appellees Mur-phys, Sharkeys, Wilsons and Treons.
   GREEN, ROBERT ALEXIS, Jr., Associate Judge.

Appellant Brunswick, as holder, sued maker and sureties on a promissory note. Brunswick entered into a stipulation for dismissal “with prejudice,” with certain of the defendant sureties but not others. The stipulation expressly reserved right of action by Brunswick against “remaining Defendants” — which included the maker and the remaining sureties — and recognized that “rights of contribution, if any, may continue to exist notwithstanding this agreement.”

Upon motion, the trial court entered summary judgment or judgment on the pleadings for the remaining defendant sureties. Brunswick appeals.

We reverse. Appellees argued Penza v. Neekles, 344 So.2d 1282 (Fla.1977), in support of their motions below and again in this court. The learned trial judge below apparently relied upon Penza in his ruling. That reliance was misplaced because:

(1) The subject stipulation was a covenant-not-to-sue with reservation of right of action against other parties to the suit. It was not a release, (see Martin v. Burney, 160 Fla. 183, 34 So.2d 36 (1948)) hence, Penza does not apply;

(2) Rights as between holders, makers and sureties of a promissory note qualifying as a negotiable instrument, relative to whether the discharge of one surety or more by the holder discharges all sureties are governed by statute. (See Sections 673.606; 673.102; 673.104 and 46.011, Florida Statutes (1975).)

The language of the stipulation was sufficient to preserve appellant’s right of action against appellees pursuant to Section 673.606(l)(a) and (2), Florida Statutes (1975).

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., concur.

      . The stipulation provides as follows:
      “4. As a result of the default of Defendant, Concorde Yachts, Inc., Defendants Claude Dorsy, Maureen Dorsy, Roger A. Bridges and Diana C. Bridges are indebted to the Plaintiff in the principal sum of $225,000.00 plus interest and late charges from May 1, 1974 through December 18, 1976 in the amount of $119,022.20, together with the cost of this action, and reasonable attorney’s fees for the Plaintiffs attorneys.
      5. Plaintiff and these Defendants, Claude Dorsy, Maureen Dorsy, Roger A. Bridges and Diana C. Bridges, hereby enter this Stipulation for settlement of the foregoing indebtedness and settlement of this cause as to these four Defendants only according to the following terms and conditions:
      A. The Plaintiff, Brunswick Corporation, hereby acknowledges receipt of Cashier’s checks in the sum of $49,000.00.
      B. The Plaintiff will, upon receipt in its account of the funds in the amount of $49,-000.00, enter its Notice of Voluntary Dismissal with Prejudice as against the Defendants, Claude Dorsy, Maureen Dorsy, Roger A. Bridges and Diana C. Bridges only.
      6. The parties acknowledge that the settlement contemplated by this Stipulation runs only to the Defendants Claude Dorsy, Maureen Dorsy, Roger A. Bridges and Diana C. Bridges and the Plaintiff specifically reserves its right to pursue the remaining Defendants to this action. The parties recognize that rights of contribution, if any, may continue to exist notwithstanding this agreement.”


author: MILLS, Acting Chief Judge. BOOTH, Judge,

text:
    Elton COWART, Appellant, v. Colleen BARNES and United Services Automobile Association, Appellees.
    No. KK-87.
    District Court of Appeal of Florida, First District.
    May 2, 1979.
    Rehearing Denied May 21, 1979.

      David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellant.
    John N. Bryant and Carl K. Staas of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   MILLS, Acting Chief Judge.

Appellant (Cowart) seeks reversal of a judgment entered in favor of appellee (Barnes) following a jury trial in an automobile personal injury case.

Cowart contends the trial court erred in denying his motion for a directed verdict on liability. We agree and reverse.

Cowart testified that he stopped his automobile for a red light and was struck from the rear by Barnes’ automobile.

Barnes testified that Cowart stopped on the caution light; that she thought he would run the caution light and that was her intention too; that when the Cowart automobile stopped sharply, she rear-ended his auto. Barnes was charged with and pled guilty to careless driving.

At the close of all the evidence, the court denied Cowart’s motion for a directed verdict.

A rear-end automobile collision raises a presumption of negligence on the part of the following automobile if the lead vehicle is in its proper place on the highway. McNulty v. Cusack, 104 So.2d 785 (Fla.3d DCA 1958). This presumption of negligence is a rebuttable presumption. Gulle v. Boggs, 174 So.2d 26 (Fla.1965).

Under the facts of this case the presumption of negligence was not rebutted by Barnes and the court should have directed a verdict on liability for Cowart. Brethauer v. Brassell, 347 So.2d 656 (Fla.4th DCA 1977); Kimenker v. Greater Miami Car Rental, 115 So.2d 191 (Fla.3d DCA 1959).

We reverse the judgment and remand to the trial court with instructions to enter judgment on liability for Cowart and to grant a new trial to Cowart limited to the issue of his damages.

Petition for rehearing, if filed, shall be filed within 10 days from the date hereof.

SMITH, LARRY G., J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I would affirm the judgment entered on the jury verdict below. The jury was entitled to find that plaintiff’s back injury was not caused by the slight impact of the subject accident, but resulted either from his prior automobile accident or from a subsequent accident which occurred while plaintiff was attempting to fix a pipe under his house.

In Chomont v. Ward, 103 So.2d 635 (Fla. 1958), the Florida Supreme Court affirmed a jury verdict for defendant in a case where defendant was at fault in backing his vehicle out of a driveway into the side of plaintiff’s car. In affirming the verdict for defendant, the court held:

Appellant contends that the proof of negligence was actually not in dispute. This being so he seeks reversal on the proposition that the jury capriciously failed to award him damages despite the fact it was admitted that he suffered damages to . his automobile to the extent of $34.00 . []
We should not lose sight of the rule that the mere fact of the happening of an accident or even the fact that negligence is shown will not in and of themselves produce a right to recover damages. The party seeking recovery must prove the extent of his injuries and that they were proximately caused by the negligence of his adversary. Two things combine to create the right of action. One is proof of negligence. The other is proof of injury and damage proximately caused by the negligence proved.
It may be that it we had been sitting in the jury box, we as individuals might have accepted Mr. Chomont’s narrative of events including his physical injuries. Under the circumstances reflected by the record, however, we think the jury acted within the orbit of its own authority when it obviously decided not to accept it. We cannot say that they were wrong and we, therefore, cannot hold the trial judge in error for declining to grant a new trial on the motion filed by the appellant.

The rule of the Chomont case remains the law in Florida under the doctrine of comparative negligence.

I respectfully dissent.

      . The jury verdict: “We, the Jury, find that defendant Colleen Barnes was not guilty of negligence which caused or contributed to causing loss or damage to plaintiff, Elton Co-wart.”

      . The record here contains no evidence which would support a jury verdict for property damages. In Chomont, any error as to the jury’s failure to award the $34 admitted property damage was held not preserved for appeal.

      . University Community Hospital v. Martin, 328 So.2d 858, 861 (Fla. 2nd DCA 1976).


text:
    Gloria ALARCON, Appellant, v. Andres ALARCON, Appellee.
    No. 78-2384.
    District Court of Appeal of Florida, Third District.
    May 11, 1979.
    Gilbride & Heller, Miami, and Lewis N. Brown, for appellant.
    Richard M. Gale, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The order of February 2, 1978 awarding temporary custody of the minor child to the father-appellee, and the order of November 15, 1978 awarding him permanent custody are reversed because proper notice of neither hearing was given to the mother-appellant. Sections 61.131, 61.1312, Florida Statutes (1977). The cause is remanded for a full hearing, upon proper notice, of the father’s motion for modification of the final judgment of October 25, 1977 which awarded custody to the mother. That final judgment is thus restored to its full force and effect.

By stipulation of the parties before us in open court, the physical custody of the child shall remain with the father pending the hearing. We specifically order, however, that this temporary physical custody shall not affect the burden placed upon the father to demonstrate affirmatively, in accordance with the applicable law, his right to a modification of the custody provisions of the final judgment. E. g., Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967); Ritsi v. Ritsi, 160 So.2d 159 (Fla.3d DCA 1964), cert. denied, 166 So.2d 591 (Fla.1964).

Because of the circumstances involved in this case, we have advanced the cause for oral argument. For the same reasons, we direct that the hearing ordered by this opinion shall be conducted as speedily as reasonably possible.

Petition for rehearing is dispensed with, and the mandate shall issue forthwith.

It is so ordered.


text:
    STATE of Louisiana v. Timmie J. BRANCH.
    No. 63641.
    Supreme Court of Louisiana.
    April 19, 1979.
    Alton T. Moran, Director, Lennie F. Perez, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard Chaffin, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.

DIXON and DENNIS, JJ., dissent.


text:
    Carlton L. STATON v. Russell D. HUTCHINSON.
    No. 12160.
    Court of Appeal of Louisiana, First Circuit.
    April 14, 1978.

      Cyrus J. Greco, Baton Rouge, for appellant.
    Máxime G. LaBranche, Baton Rouge, for appellee.
    Before SARTAIN, ELLIS, LOTTINGER, CHIASSON and PONDER, JJ.
   PER CURIAM.

This is an election contest suit filed by Carlton L. Staton challenging the results of the April 1, 1978, primary election for the office of Chief of Police of the Village of Albany, Louisiana. A total of 392 votes were cast in the election with the defendant, Russell D. Hutchinson receiving 197 votes, Carlton L. Staton — 172 and Leon McAllister — 23.

Plaintiff contends that the absentee votes cast by James Albin and Louis Ray Albin and the machine vote cast by Joseph Clary were illegal under the provisions of LSA-R.S. 18:110, the Louisiana Election Code, as these persons were not eligible to vote in the election. He then prays for judgment declaring a general election for the office of Chief of Police with the plaintiff and Hutchinson as the only candidates. In the alternative, he prays that the April 1, 1978, election be declared void.

The defendant filed a peremptory exception of no cause of action. The trial court denied the peremptory exception and rendered judgment voiding the election of the defendant, Hutchinson, on April 1, 1978 as the Chief of Police of the Village of Albany and ordered a general election be held on May 13, 1978 between Hutchinson and Sta-ton only, for the office of Chief of Police.

EXCEPTION OF NO CAUSE OF ACTION

Defendant’s exception of no cause of action is based on the proposition that a petition in an election contest which alleges no irregularities other than non-residence of voters fails to state a cause of action, citing Perez v. Cognevich, 156 La. 331, 100 So. 444 (1924) and LeBlanc v. Primeaux, 2 So.2d 274 (La.App. 1st Cir. 1941).

At the 1976 Regular Session, the Louisiana Legislature enacted Act 697 which amended and reenacted the entirety of Title 18 of the Louisiana Revised Statutes of 1950, except those chapters dealing with political contributions or other activities and the registrars of voters employees retirement system. Title 18 was redesigna-ted the Louisiana Election Code, and was effective January 1, 1978.

LSA-R.S. 18:1434 provides:

“An objection to the qualifications of a voter or to an irregularity in the conduct of the election which, with the exercise of due diligence, could have been raised by a challenge of the voter or objections at the polls to the procedure is deemed waived.”
Additionally, LSA-R.S. 18:565 provides:
“A. Grounds for challenge. A commissioner, watcher, or qualified voter may challenge a person applying to vote in a primary or general election on the ground that (1) the applicant is not qualified to vote in the election, (2) the applicant is not qualified to vote in the precinct, or (3) the applicant is not the person whose name is shown on the precinct register or computer voting list.
“B. Disposition of record of challenge. A written record of the challenge, signed by the challenger, shall be placed in the envelope marked ‘Put in Voting Machine’ and shall be preserved as part of the election returns.
“C. Disposition of the challenge. The commissioners present shall determine the validity of the challenge. If they determine by majority vote that the challenge is valid, the applicant shall not be permitted to vote. If a majority of the commissioners determine that the challenge is invalid, the applicant shall be permitted to vote.”

Defendant argues that LSA-R.S. 18:1434 is merely a codification of the above rule as expressed in Perez v. Cognevich, supra, and LeBlanc v. Primeaux, supra. He argues that objections to a voter’s qualifications are waived unless the voter has been challenged pursuant to LSA-R.S. 18:196, and objections to procedural irregularities are waived unless an objection is made at the polls.

We disagree.

LSA-R.S. 18:565 specifically allows a challenge at the polls of a person applying to vote. If defendant is correct in his contention, then LSA-R.S. 18:565 is meaningless. The general rule is that the legislature does not enact vain and useless legislation. LSA-R.S. 18:565C grants to the commissioners the authority to determine the validity of the challenge to a person applying to vote. If the challenge is denied, then under defendant’s contention, there would be no recourse. This would make the commissioners the final authority without judicial review. We cannot conceive the legislature ever intending such.

We realize this court in LeBlanc v. Primeaux, supra, followed the rule announced in Perez, however, we are of the opinion that the Perez rule has been legislatively overruled by the adoption of the Louisiana Election Code. For cases not following Perez v. Cognevich, supra, see Bradley v. Neill, 174 La. 702, 141 So. 382 (1932) and Timberlake v. Lindsey, 140 So.2d 406 (La. App. 3rd Cir. 1962) and the cases cited therein.

Since challenges to these three votes were made pursuant to LSA-R.S. 18:565, we find no error on the part of the trial judge in denying the exception.

MERITS

LSA-R.S. 18:101B in part provides:

“For purposes of the laws governing voter registration and voting, ‘resident’ means a citizen who resides in this state and in the parish, municipality (if any), and precinct in which he offers to register and vote, with an intention to reside there indefinitely. If a citizen resides at more than one place in the state with an intention to reside there indefinitely, he may register and vote only at one of the places at which he resides.”
Further, LSA-R.S. 18.-110A provides:
“The change of residence of a registrant from one precinct to another in the same parish does not deprive him of the right to remain as a legal registrant in the precinct from which he has removed until he registers and has the right to vote in the precinct to which he has moved or until three months after he moved, whichever is sooner. However, if the registrant changes his residence to a place outside of the ward or incorporated municipality in which he resided, he shall not retain the right to vote for candidates for office to be filled solely from the ward or municipality from which he has moved. After this three month period, he no longer shall have the right to vote in the precinct from which he has moved.”

Webster’s Third New International Dictionary, Unabridged Edition defines residence as “the place where one actively lives or has his home as distinguished from his technical domicile.”

We are of the opinion that when the legislature uses the terminology reside, resident and residence it means where an individual lives, where he sleeps and eats. Thus we proceed to a discussion of the three contested votes.

Joseph Clary

Since 1974, Joseph Clary has resided in an apartment on the Hammond State School grounds, outside the Village of Albany. Though he still owns a home in Albany, it is rented and he has not lived in this house since 1974. Thus, Clary is not a resident of Albany, and under LSA-R.S. 18:110A he could not vote in this election.

James Albin

James Albin registered to vote in Albany in August, 1977. Between April 1977, and the election in question, Albin and his wife moved to the State of Mississippi for three to four months, where he worked. When Albin and his wife separated, he returned to Louisiana. The trial judge was of the opinion that once Albin moved to Mississippi for this length of time he no longer resided in Albany, thus losing his voter registration. We agree. LSA-R.S. 18:110A.

Since the disqualification of these two votes is sufficient to make it impossible to determine the result of the election, we pretermit any discussion of the challenge to the vote of Louis Ray Albin.

A total of 892 votes were cast in this election. The disqualification of these two votes reduces the total to 390. To be the winner in this election, a candidate must receive 50% plus one vote or 196 votes. Considering that there is no evidence for which candidate these two votes were cast, and if they were cast for the defendant he would only have 195 votes, it is impossible to determine the result of this election. LSA-R.S. 18:1432.

The trial judge voided the result of the primary election and declared a general election between Staton and Hutchinson. Though error has not been alleged by appellant, under the authority of LSA-C.C.P. Art. 2164, we find the trial judge exceeded the authority granted him under LSA-R.S. 18:1431 and 1432. LSA-R.S. 18:1431 is only applicable when it is known which candidate received the questioned votes. The only authority granted under LSA-R.S. 18:1432 is to void the election. Thus, the trial judge was in error in ordering a general election between Staton and Hutchinson. The proper remedy is to void the primary election and order a new primary election with the same candidates as previously.

Therefore, for the above and foregoing reasons the judgment of the trial court is amended so as to void the primary election held on April 1, 1978 for the office of Chief of Police for the Village of Albany, Louisiana, and it is ordered that a new primary election between the same candidates as participated in the April 1, 1978 primary be called in accordance with law. Defendant-appellant to pay all costs of this appeal.

AMENDED AND RENDERED.


author: MARVIN, Judge.

text:
    Narvin POWELL, Plaintiff-Appellant, v. CITY OF WINNFIELD FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 13764.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.

      Larvadain & Scott by Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Simmons & Derr by Kermit M. Simmons, Winnfield, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff, classified under civil service as a policeman, was discharged from employment by the City of Winnfield on grounds that he neglected his duty. The Fire and Police Civil Service Board, after a hearing, upheld the discharge and was upheld by the district court. This appeal followed.

Plaintiff complains that the appointing authority (LRS 33:2533 2), here the City Aldermen, did not furnish him with a “statement in writing of the complete reasons” for his discharge as required by LRS 33:2560 D and that the board erred in determining that his discharge, on the broad ground of neglect, was made in good faith for cause. LRS 33:2561. We agree and reverse.

We summarize the events revealed by the record leading up to the hearing before the Board:

Sometime before October 25, 1977, the Chief of Police began an investigation of plaintiff’s conduct. Plaintiff was suspended on October 25 by the Chief, who told plaintiff he “. . . was going to have to suspend him until [he] could continue and finish [his] investigation on it.” Before November 15, 1977, the Chief finished his investigation and obviously reported to the Mayor and Aldermen. On November 15, the Aldermen adopted the following resolution, a copy of which plaintiff received in the mail from a source which is not revealed by this record:

“WHEREAS, a report of an investigation of Chief Percy Roberts into complaints of neglect of duty by a police officer was received in executive session; and “WHEREAS, the report outlined serious incidents of neglect of duty; and “WHEREAS, the conduct outlined in the report reflects neglect of duty and also reflects unfavorably on the Police Department of the City of Winnfield; and “WHEREAS, the report of the Chief of Police reveals many instances wherein Patrolman Narvin Powell slept on duty; departed his duty station for long periods of time and failed to follow the normal reporting procedures of the Police Department:
“BE IT RESOLVED that Patrolman Narvin Powell be dismissed as a police officer of the City of Winnfield for neglect of duty in accord with the facts outlined in the report of the Chief of Police of the City of Winnfield and in accord with the recommendations of said Chief.
“BE IT FURTHER RESOLVED that a copy of this resolution be served on the Fire and Police Civil Service Board of the City of Winnfield and upon Mr. Powell.”

The Chief’s report, so often mentioned in the resolution (our emphasis above) and the express basis for the discharge (“for neglect of duty in accord with the facts outlined in the report . . . ”) is not in the record and a copy of the report was never furnished to plaintiff or to the Board. The record does contain, however, this letter from the Chief to the Board, dated November 28, 1977, after the resolution discharging plaintiff was enacted:

“I am writing to notify you of the suspension of Patrolman Narvin Powell. He was suspended from the Winnfield Police Department on October 25, 1977.
“On October 17,1977 Mayor Henderson received an anonymous letter making some complaints against Patrolman Nar-vin Powell. Upon Mayor Henderson’s recommendations I made an investigation.
“In my investigation I found reliable information that Patrolman Powell had been visiting some girl friends from one to four hours at a time while he was supposed to be working. I also found that he had been sleeping from one to six nights a week while he was supposed to be working.
“I suspended Patrolman Powell until I could finish my investigation. He was suspended for Neglect of Duty.”

Where the Municipal Fire and Police Civil Service Law requires that “complete reasons” in writing be given the discharged civil service employee and the Board (LRS 33:2560 D), the State Civil Service Law requires “detailed reasons”. Even a cursory comparison of the cases and of the several laws pertaining to civil service reveals that one section of the law lists several grounds for which an employee under civil service may be discharged while another section of the law requires that the employee and the civil service board be given written notification of the discharge and the reasons for the discharge. See LRS 33:2560, 2561; LRS 33:2500, 2501; and remainder of Chapter 5, LRS 33. See also Robbins v. New Orleans Public Library, 208 So.2d 25 (La.App. 4th Cir. 1968).

The purpose of such laws is to afford due process to the employee under civil service so that he might know with reasonable particularity the facts and circumstances he may be called upon to rebut in case his employer makes out a prima facie case against him before the Board to whom he has the right of appealing for an investigation and a full hearing. See Major v. Louisiana Department of Highways, 333 So.2d 316 (La.App. 1st Cir. 1976).

The requirement that reasons be given in writing for the discharge of a civil service employee plainly comprehends a fair and clear statement of the misconduct of the employee, including, whenever pertinent, time, dates and places. Hays, supra, in footnote 2, 143 So.2d at 74. Whether the reasons be labeled as “detailed reasons” as required in the state civil service law, or as required here, “complete reasons”, the purpose of the requirement is not changed. See Patrick v. Lake Charles Municipal Fire & Police Civil Service Board, 344 So.2d 1121, 1123, (La.App. 3d Cir. 1977); Marchiafava v. Baton Rouge Fire and Police Civil Service Board, 233 La. 17, 96 So.2d 26 (1957), is not to the contrary.

LRS 33:2560 A sets forth 15 “reasons” why plaintiff could be discharged or disciplined. Some of these, for instance number eight (conviction of a felony), are specific. Others, such as number one (failure to perform the duties of his position in a satisfactory manner), are extremely broad. Thus where the section states in Part A that an employee may be discharged for a broad “reason”, it logically and reasonably follows that the “complete reasons” required to be given in writing by Part D of the section contemplates that the broad reason shall be made specific (or detailed or complete) as to the circumstances of the employee’s failure (or neglect) to perform the duties of a particular position.

The report by the Chief to the Aldermen may have contained sufficient detail of misconduct by plaintiff to warrant his being discharged as a policeman but we cannot presume its contents. LRS 33:2561 contemplates that the Board shall conduct a hearing and an investigation, that the evidence before the Board, warranting discharge, be conclusive in order for the Board to affirm the Aldermen, and that the Board make written finding of facts warranting discharge.

The resolution of the Aldermen expressly states that plaintiff is

“. . . dismissed as a police officer . for neglect of duty in accord with the facts outlined in the report of the Chief of Police . .

The record does not show, however, that those facts (be they characterized as detailed or as complete) were given in writing or otherwise to the plaintiff as required by LRS 33:2560 A.

At the hearing and investigation conducted by the defendant Board, plaintiff repeatedly objected to the deficiency of the written notification of the reasons for his discharge and the lack of specifics. The resolution borders upon, but does not achieve, specificity, in stating that the report of the Chief revealed “many instances” of plaintiff sleeping on duty, of plaintiff departing his duty station, and of failing to follow reporting procedures of the department. Presumably, the details or specific circumstances of these “instances” were available to the Aldermen, as the appointing authority, and could have (and should have) been given to the plaintiff. Upon the objection being made by plaintiff, the Aldermen, through counsel, could have supplied written specificity to plaintiff and the Board, and the Board could have continued the hearing and investigation to allow plaintiff time to prepare his defense.

“. . . The board shall have complete charge of [the] hearing and may conduct it in any manner it deems advisable, without prejudice to any . . . party . . .” LRS 33:2561.

In any event, the statutory requirement of specificity in written reasons for discharge, has not been fulfilled under the circumstances shown by this record.

Judgment below is reversed at defendants’ cost and this cause is remanded to the City of Winnfield Fire and Police Civil Service Board for further proceedings in accordance with law.

      . See Part III, Chapter 5, The Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts, LRS 33:2531 et seq.
      “Any regular employee who feels that he has been discharged . without just cause may demand in writing a hearing and investigation by the board to determine the reasonableness of the action. * * *
      “[T]he board may decide the issue involved on the basis of the evidence adduced [at the hearing] and confined to the question of whether the action taken . . was made in good faith for cause set forth in the provisions of this Part. * * *
      “Any employee . . . may appeal from any decision of the board . . . This hearing [of the appeal] shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this part.” LRS 33:2561.

      . See La. Constitution Art. 10, § 1, et seq. Hays v. Louisiana Wildlife and Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962).
      LRS 33:2560 D reads:
      “In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor.”

      . [The] employee . . . may demand . a hearing and investigation The board shall grant ... a hearing and investigation The board shall have complete charge of any such hearing and investigation . [T]he board shall make a written finding of fact . . After such investigation, if the evidence is conclusive, the board may affirm the action of the appointing authority .” LRS 33:2561.

      . The Chief testified at the Board hearing that he recommended to the Aldermen that plaintiff be fired. The Chief did not testify before the Board as to details of what occurred, when, with respect to plaintiff’s neglecting his duty by sleeping on the job or otherwise.
      “I recommended to the [aldermen] that they dismiss [plaintiff] for neglect of duty, for failing to be on duty where he was available for a call at all times while he was supposed to be on duty. * * *
      “. . . also for sleeping on the job.”
      The Chief did state that the one occasion when he found plaintiff asleep in a police car some three to five months before October 25, 1977, was not the reason why plaintiff was discharged and that he made the decision to discharge plaintiff after October 25, 1977, on the basis of his investigation. The chief testified that during his investigation he took statements from two other policemen, Brown and Thomas. These statements are not in the record and it does not appear that copies were furnished to the Board or to plaintiff. These officers, however, did testify before the Board generally about events which occurred more than one year before plaintiffs suspension on October 25, 1977, and specifically about one event which occurred after a football game on November 14, 1977, which was after plaintiffs suspension and last contact with the Chief.
      These events, as related by the two officers, concerned plaintiffs departing from the patrol car and from these officers during the late night at a certain residential area (West Avenue — Finn Street). The patrol car would return about two hours later and plaintiff would resume patrolling with the other officer. Thomas testified that on one occasion he returned to plaintiffs departure site in response to a message from the police radio operator that plaintiff said for us to come pick him up off the stake-out.” Thomas accompanied plaintiff on one occasion to visit a residence in the area. The purpose of the visit is not revealed, except perhaps in the letter of November 28 from the Chief to the Board. On one or more occasions plaintiff allowed Thomas to depart from the patrol car to attend to a personal errand for an hour or so.
      Each officer testified that he had given a statement to the Chief which included the plaintiffs most recent departure from patrol— November 14, 1977. Both officers testified that they did not know why plaintiff departed the patrol car. Neither officer testified as to plaintiff sleeping while on duty.
      The Chief did testify that on “several occasions” he had conferred with plaintiff about plaintiff sleeping on the job, but that he did not forewarn plaintiff before October 25, 1977, that plaintiff was going to be suspended. Other than the statement, “I told him I was going to have to suspend him until I could continue and finish my investigation on it”, the record does not reveal that the Chief told plaintiff why he was being suspended or that the Chief had any contact with plaintiff after October 25, 1977. The specifics of how, when, for what length of time, and where, plaintiff either slept on duty, departed his duty station, or failed to follow departmental reporting procedures were not included in the resolution of the Aldermen nor in any findings of fact by the Municipal Civil Service Board. The record also does not show that the Chief verbally informed plaintiff of the specifics.