author: BOYER, Acting Chief Judge.

text:
    Robert COLBERT, Appellant, v. STATE of Florida, Appellee.
    No. V-373.
    District Court of Appeal of Florida, First District.
    May 12, 1975.
    Rehearing Denied July 28, 1975.
    S.Gunter Toney, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   BOYER, Acting Chief Judge.

Appellant appeals his conviction for the possession and sale of heroin for which he has received a sentence of ten years in the State Prison.

Through testimony introduced by the State at trial, it was established that the appellant sold two packets of heroin to an undercover narcotics agent for $30 a packet. The agent, Ricardo Brown, who had been searched by police officers before the transaction to determine whether he already had heroin in his possession, was accompanied by Lannie Flemming, a former consort of the appellant, who was not searched before the transaction. In an attempt to rebut the foregoing testimony, the defense called the bartender of the Harlem Bar, which was the site of the alleged narcotic sale, to the stand. The bartender, Mary Ramsey (also known as Baby Kate), testified on direct examination that she had observed no contact between Mr. Brown and the appellant but that there was contact between Ms. Flemming and the appellant. Seeking to impeach Ms. Ramsey’s testimony, the State asked her whether she had made an agreement to sell heroin for the defendant after his trial. When the court overruled the defendant’s objection to the question on the basis that the question was permissible to show interest of the witness in the outcome of the case, the witness answered in the negative. The State then attempted to confront Ms. Ramsey with a prior inconsistent statement. On the defendant’s objection, the court again reiterated that showing an interest in the case was permissible but proof of the appellant’s selling heroin at any other time or place would be immaterial, prej.-udicial, and possible grounds for a mistrial. Thereupon the State proceeded to confront Ms. Ramsey with prior inconsistent statements which indicated that the appellant desired her to sell drugs for him after his trial. The defense immediately moved the court to declare a mistrial on the ground that the questions and answers of the prior inconsistent statement evidenced a conspiracy to violate the dangerous drug laws, a separate independent crime, or, in the alternative, for an instruction to the jury to disregard the questions and answers read from the exhibit. The court denied this motion.

It is urged by the appellant that the court erred in allowing the State to impeach witness Ramsey on a collateral matter by admitting into evidence appellant’s criminal act to hire Ms. Ramsey and deal in the sale of narcotics subsequent to the ' date of the offense for which the appellant was being tried. We agree.

We are here faced with a direct conflict between two rules of evidence. Supporting the State’s position is the rule of evidence that the facts of a witness’ interest in the action may be shown for the purpose of affecting his (or her) credibility. Pittman v. State, 1906, 51 Fla. 94, 41 So. 385. In the case sub judice, the'State asserts that the alleged agreement between the witness Ramsey and the appellant to sell narcotics after the appellant’s trial establishes the interest of the witness Ramsey in the outcome of the trial and therefore affects her credibility. Faced with the witness’ denial of such an agreement between herself and the appellant to sell narcotics, the State also asserts that it can show such an agreement by confronting the witness with prior inconsistent statements. The State is quite correct that, generally, a witness may be impeached by evidence of her statements inconsistent with or contradictory of her testimony at trial. Taylor v. State, 1939, 139 Fla. 542, 190 So. 691.

However, we are here faced with another general rule of evidence, to-wit: Evidence of another and distinct crime committed by an accused, in no way connected by circumstances with the one for which he is being tried, is inadmissible. Winstead v. State, Sup.Ct.Fla.1956, 91 So.2d 809. The underlying rationale of this rule is that evidence that a defendant has committed a similar crime has a tendency to promote a more ready belief by the jury that he might have committed the one for which he is charged, thereby predisposing the mind of the juror to believe the prisoner guilty. Nickels v. State, 1925, 90 Fla. 659, 106 So. 479. This Court has previously reversed the conviction of an alleged narcotics dealer when the State introduced evidence of narcotics sales other than the one for which the defendant was on trial. Denson v. State, Fla.App. 1st 1972, 264 So.2d 442. We are not here faced with the same clear-cut situation we faced in Denson because the State here has not introduced evidence of a separate crime committed by the appellant as part of the case in chief but only in an attempt to impeach a witness: But the result is the same. The' accused has a right not to be confronted at trial with alleged crimes allegedly committed subsequent to the crime for which he is being tried. Put another way, a defendant may not be tried for a crime for which he has not been properly charged.

Reversed and remanded for a new trial.

JOHNSON, J., and STURGIS, WALLACE E., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: JOHNSON, Acting Chief Judge. McCORD, Judge

license: Public Domain

text:
    John Edward SHANNON and Gary Lee Sea, Appellants, v. STATE of Florida, Appellee.
    Nos. W-229, W-262.
    District Court of Appeal of Florida, First District.
    June 12, 1975.
    Louis O. Frost, Jr., Public Defender, and Steven.E. Rohan, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Michael E. Corin, Asst. Atty. Gen., for appel-lee.
   JOHNSON, Acting Chief Judge.

These are two consolidated appeals from final judgments entered pursuant to jury verdicts, finding the appellants guilty of possession of cannabis in the amount of less than five grams.

The record reveals from the testimony of the State that about 10:00 p. m. on the evening of March 21, 1974, an officer of the Jacksonville Sheriff’s Office was on patrol when he observed a vehicle traveling on the street with only one headlight. The officer stopped the vehicle and the driver got out of the vehicle, a small truck, and met the officer about the end of the truck. The officer requested the driver’s license and was told by the driver he did not have his license with him. The truck tag indicated that the same was not from Duval County. At or about that time, the officer told the driver he would have to arrest him and carry him to jail. Also, at about that same time, the arresting officer had radioed for backup help which had arrived just at or before or after the driver was told he was under arrest. The time sequences of the arrival of the backup officer was not material in.this case.

The driver was then placed in the officer’s patrol car and he and the other officer then proceeded-to conduct an inventory search of the truck before taking it to the police station. There were two passengers in the truck with the driver, one of them being the appellant Gary Lee Sea. The record is not too clear as to whether the two passengers remained in the truck or whether one or both got out, but again the testimony was not material to the determination of this case.

At the search, the several bags of what the officers thought was, and what proved by lab test, to be marijuana, were on the seat close to the driver’s side and some in a motorcycle helmet lying on the floor of the truck on the passenger’s side. The passenger, appellant, Sea, was arrested and charged with the same possession as his co-appellant, Shannon.

The trial court appointed the Public Defender’s Office to represent appellant Shannon. Appellant Sea had private counsel at that time and through the lower court proceedings. The Public Defender’s Office represented both appellants on this appeal.

Motions to suppress the evidence of the marijuana were made by both appellants and testimony taken which was approximately as detailed hereinabove in this opinion. The motions were denied and motions for acquittal were made and denied. The trial court stated that the motions presented rather interesting and close questions, but under all the circumstances of the case, the State had made the prima facie case. Contention was made by both appellants that the burden of proof was on the State to prove the search without a search ^warrant was legal. The trial court ruled that the motion to suppress did not make a prima facie case and that the court would require appellants to produce evidence to demonstrate the allegations contained in their motion. This is in exact conformity with Criminal Procedure Rule 3.190(h)(3). The motion itself shows that the arrest was for a legal cause, one headlight, and no driver's license. This made the search incident to the legal arrest. As to the appellant Sea, he was in possession, constructive or actual, of at least part of the marijuana. It was in plain view to the appellant as it was to the officers. The evidence was legally seized. As to the insufficiency of the evidence, this is without merit, too. There was enough evidence to justify the jury verdicts.

The prosecutor’s remarks in his closing argument bordered on error, but the trial court’s instruction was enough to render the remarks as harmless, anyway.

Although there were several very technical questions which arose from the beginning to the end of this case, we think and so hold, that the appellants have failed to demonstrate error that would merit a reversal.

Therefore, the judgments and sentences are affirmed.

BOYER, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

I agree with the majority opinion that the procedure followed by the trial court on the motion to suppress was not error. The court ruled that the motion to suppress, standing alone without evidence, did not make a prima facie case and required appellants to present evidence. Appellant Shannon, the driver of the automobile, then took the stand and testified to the car being stopped by the officers and that the search was made. The trial court then ruled that appellants had presented a prima facie case, whereupon the state went forward with the evidence to show the legality of the search. Such procedure was in accordance with Rule 3.190(h)(3), F.R.Cr. P., and Bicking v. State, Fla.App., 293 So.2d 385.

I respectfully dissent as to the final point raised by appellants. It is my view that the trial court erred in not granting the appellants’ motion for mistrial upon the legal intern of the state attorney’s office commenting upon the appellants’ failure to take the witness stand in his final argument to the jury. Appellants’ defense was that the marijuana found in the automobile was not shown to be in their possession and control. A third person in the automobile had stated that it belonged to him and it was found in his helmet and under the seat of the car. The legal intern’s comment to the jury in his final argument was as follows:

“ . . . Nobody has come in and said that the marijuana was not theirs. Nobody has come in and said that the marijuana could have been put there by someone else. The only thing that has been said is that these.two men didn’t know. I didn’t know it was there, fifteen bags of it, three bags found in the middle under the driver’s seat.”

The trial judge denied appellants’ motion for mistrial and instructed the jury to disregard the remarks, instructing them that the burden was upon the state to prove the appellant’s guilt beyond and to the exclusion of every reasonable doubt and it was not encumbent upon the defendants to prove their innocence. In my opinion the instruction could not cure the prejudicial remarks. I would reverse for a new trial.


author: PER CURIAM.

text:
    Betty Lee BUSH, a widow, etc., Appellant, v. THERMAL ENGINEERING COMPANY, INC., a corporation, et al., Appellees.
    Nos. W-233, W-448.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
    Carole A. Gardiner, Beckham & Mc-Aliley, Miami, for appellant.
    Reginald M. Hayden, Jr., Miami, Chris-'-opher W. Gardner, Marks, Gray, Conroy & Gibbs, William M. Howell, Howell, Kirby, Montgomery, D’Aiuto, Dean & Hal-lowes, and John E. Houser, Jacksonville, for appellees.
   PER CURIAM.

We have carefully examined the record on appeal and the briefs filed by able counsel. Although the evidence giving rise to entry of the judgment and sentence here appealed was in conflict those conflicts were resolved by the trier of the fact for whose judgment we may not substitute ours. We find no error of law as applied to those facts. Further, the briefs and oral arguments of the parties reveal that each point here presented has been heretofore determined by decisions of this Court and of the Supreme Court of Florida. Nothing would be added to the jurisprudence of this State by again discussing those points here.

Appellant having failed to demonstrate prejudicial error, the judgment is

Affirmed.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    Jay Thomas ROHWER, Petitioner, v. FLORIDA STATE BOARD OF ARCHITECTURE, Respondent.
    No. W-74.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Rehearing Denied Nov. 12, 1975.
    Richard L. Shaw, Padgett, Teasley, Niles & Davison, Coral Gables, for petitioner.
    Selig I. Goldin, Goldin & Turner, Gainesville and James C. Rinaman, Jr., Marks, Gray, Conroy & Gibbs, Jacksonville, for respondent.
   STURGIS, WALLACE E., JR., Associate Judge.

Petitioner, a licensed Florida architect, seeks a review by Writ of Certiorari of suspension of his license by Respondent.

Petitioner, formerly a registered California architect, was granted Florida registration on December 14, 1972. In January of 1974 Respondent filed charges against Petitioner alleging dishonest practice in procuring the seal and signature of a registered Florida architect upon plans not prepared or under responsible supervising control of that architect, and in deliberately misleading Respondent of these facts upon application for registration. Upon hearing and after making findings of fact to support the charges, Respondent suspended Petitioner’s license for a period of twelve months (with automatic reinstatement) and assessed costs. After a careful review of the entire proceedings, we are compelled to issue the writ and quash the proceedings below. The evidence in this case, which was uncontroverted, reveals the following:

During the time Petitioner’s application for registration in Florida was pending he prepared plans for a project to be constructed in Florida. Upon being advised that the seal and signature of a registered Florida architect on the plans were required, Petitioner associated such an architect to assist him on the project and to review, sign and seal the plans. Petitioner was unfamiliar with Florida law and relied upon the Florida architect’s representations that their association authorized him to sign and seal the plans, inspect the job and make any corrections necessary. The clients were advised of the association and of the authority of the Florida associate architect.

Subsequently the Petitioner had two meetings with the Respondent prior to his approval for registration. In the first meeting he was advised that his application would be rejected because he was not familiar with Florida law. At both meetings he advised the Board that he was engaged in work, but did not elaborate on exactly what he was doing because (as he testified) they changed the subject and asked him about other matters.

Charges brought against the Petitioner were based upon Section 467.15(2), Florida Statutes, which provides:

“No architect shall affix or permit to be affixed his seal or his name to any plan, specification, drawing or other related document which was not prepared by him or under his responsible supervising control . . . .”

Rule 21B-5.01(5), Rules of Florida, State Board of Architecture, provides that the certificate of registration of an architect may be suspended or revoked if. the architect affixes his seal or name to any plan or specification not prepared by the architect or under his responsible supervising control.

The specific charge of dishonest practice made against the Petitioner was that he procured the seal and signature of a registered Florida architect on plans of a development in Florida in order to obtain governmental approval, knowing they were not prepared by the Florida architect or under his responsible supervising control; and that the Petitioner deliberately misled the Board [of the foregoing facts] when he applied for registration in the State of Florida as an architect. In the hearing below it was admitted that the plans were not prepared by the Florida architect and that his signature and seal appeared thereon.

Both parties before the Court rely heavily upon Markel v. Florida State Board of Architecture, 253 So.2d 914 (Fla.App.1972). In that case the Supreme Court interpreted the language of the statute “under his responsible supervising control” as excluding an architect’s ratification of a nonprofessional’s unsupervised work product. In the case sub judice, the Petitioner, unfamiliar with Florida practice and procedure, was led to believe that an association with a Florida architect who signed and sealed the plans and exercised dual responsibility and control was permissible. The record clearly reflects that the Petitioner relied upon the representations of his Florida associate that the requirements of law were being met. Unquestionably, if we were reviewing disciplinary actions taken against the Florida architect for permitting his seal and signature to be placed upon the plans the decision in Market would be germane, but that is not the case at bar.

The entire evidence in this case bearing' directly on the charges made was the testimony of the Petitioner. The only contradiction to Petitioner’s testimony that no inquiry was made into the Florida projects during the Petitioner’s examination by the Respondent upon his application, was the comment of Harry E. Burns, Jr., a member of the Respondent Board:

“had it been brought particularly to our attention that I for one would have told this young man that the offer to practice architecture in Florida is in the eyes of the Board as relevant as the actual preparation of contract documents.”

Neither was there any evidence that Petitioner lied in response to any question nor knowingly concealed any information solicited by the Board. Petitioner testified that he was asked if he had any contracts in the State of Florida, to which he responded affirmatively. He then stated that no further inquiry was made because of a change in the subject. At most' it could be said that he neglected to disclose a matter which was not inquired of him which if revealed would have caused the Board to deny his license. But there was no showing of any intent on the Petitioner’s part to either conceal the association of the Florida architect; neither was there any showing of knowledge of the Petitioner that this was a prohibited act.

The record before this Court is not unlike that of Floyd v. Florida State Board of Architecture, 290 So.2d 494 (Fla.2d D.C.A.1974) where the Court through Acting Chief Judge McNulty said:

“Moreover, no competent circumstantial evidence was developed which otherwise tended sufficiently to support the charges. Indeed, if this were a judicial criminal proceeding a corpus delicti, i. e., the wrongful act, is not even prima facie shown. And while quasi-judicial administrative proceedings need not follow the requirement of form insisted upon in the courts, nevertheless, with regard to punitive proceedings whereby a licensed professional is in jeopardy of losing his means of livelihood in his chosen profession, matters of substance cannot be ignored.”

Here the record is devoid of any cognizance of this concept. <

In the commencement of the proceedings below Respondent agreed that previous matters before the Board in disciplinary proceedings against the associated Florida architect would not ■ be considered. The conclusion reached by Respondent might well imply that the guilt of one should result in punishment to the other. Moreover, the analogy is similiar to the same jury trying two defendants whose trials had been severed. Despite the admonition, can there be an impartial tryer of the fact and judge of the punishment to be imposed? That Respondent was prosecutor, judge and jury suggests even more the adherence to procedural due process and application of substantive law. If there are defects in these adversary proceedings, as we suggest, they are matters which should be corrected by administrative rules or legislative direction.

Having determined that the writ should be issued for the reasons stated we do not deem it necessary to consider the severity of the sentence imposed on the Respondent. We issue our writ this day and quash the order herein under review.

Certiorari granted.

BOYER, Chief Judge, and SMITH, J., concur.


text:
    Richard John DESPRES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-296.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
    Richard W. Ervin, III, Public Defender, and Richard John Despres, in pro per, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error. Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Richard EUBANKS, a/k/a Rick Eubanks, and Freddie Eubanks, a/k/a Jim Eubanks, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. Y-253.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record on appeal, we find no reversible error. Accordingly, the judgments and sentences are affirmed.

BOYER, C. J„ and MILLS and Mc-CORD, JJ., concur.


author: PER CURIAM. MAGER, Judge

text:
    STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc. and Jerry Schwartz, Relators, v. Russell H. McINTOSH, Respondent.
    No. 75-1816.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Mager, J., dissented and filed opinion.

      Parker D. Thomson and Susan W. Diner, Miami, for relators.
   PER CURIAM.

Suggestion for Writ of Prohibition Denied.

OWEN and DOWNEY, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting) :

In my opinion the suggestion for the writ of prohibition presents a prima facie case for the issuance of a rule directing the lower court to show cause why the writ as prayed for should not be granted. Rule 4.5, subd. d, F.A.R.; State ex rel. Gore Newspaper Company v. Tyson, Fla.App.1975, 313 So.2d 777.

The order in question, although motivated by a concern to secure and maintain a fair and impartial trial of the cause, nevertheless appears on its face and in its present form to operate as a prior restraint .upon the dissemination and publication of information by the news media in contravention of the guarantees of the First Amendment of the United States Constitution. Unitied States v. Dickinson, 5 Cir.1972, 465 F.2d 496.

For example, the order fails to indicate with some degree of precision and specificity the manner in which the publicity heretofore disseminated or to be disseminated in the future constitutes a “clear and present danger” to the orderly administration of justice; nor are there sufficient facts set forth in the order from which such determination can be made. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L. Ed. 1546 (1947); Brumfield v. State, Fla.1958, 108 So.2d 33. Moreover, the mere potential adverse effect of pretrial and trial publicity does not form a sufficient predicate upon which to restrict or limit the dissemination of information by the media. State ex rel. Superior Ct. of Snohomish Co. v. Sperry, 79 Wash.2d 69, 483 P.2d 608 (1971). The circumstances in the present situation may suggest some control of pretrial and trial publicity as well as methods other than those reflected in the order under review. See annotation 49 A.L.R.3d 1007,1010.

All of the foregoing including the allegations contained in the application for writ of prohibition amply demonstrate the existence of a prima facie case for a determination of whether the trial court’s order is in excess of its jurisdiction and merits the issuance of a rule nisi by this court and a response by all affected parties.


text:
    Stephen Louis KISH, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-314.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error. Accordingly, the judgment and sentence are affirmed.

However, this case is remanded with directions that the trial court credit defendant with jail time prior to sentence in accordance with this court’s opinion in Miller v. State, 297 So.2d 36 (Fla.App. 1st, 1974). Resentencing is not required; only entry of an order correcting defendant’s jail time credit.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Jerome STERNBERG, Jr., Appellant, v. Bernadette O. STERNBERG, Appellee.
    No. W-237.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Joseph F. Duszlak, and R. Craig Hemp-hill, Hemphill, Kypreos & Schulman, Jacksonville, for appellant.
    Giles P. Lewis, and Clyde A. Reese, Jr., Lewis, Martin & Carter, Jacksonville, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage and an order denying appellant’s motion for rehearing. The parties, through their attorneys, filed a stipulated statement as to the facts upon which the final judgment was entered pursuant to Rule 3.6(h), Florida Appellate Rules. We compliment the attorneys upon their successful effort to so stipulate. Such a stipulation in a domestic relations case has been rare in our experience.

The sole point in issue on this appeal is whether or not the trial court abused its discretion in awarding the wife permanent alimony under the circumstances of this case. We cannot say that it did. This ruling is, however, without prejudice to a subsequent reevaluation of permanent alimony by the trial court at a later date based upon changed circumstances. The term “permanent” alimony is not so permanent that it may not be changed upon a change of circumstances justifying same.

Affirmed.

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


text:
    P. L. COLEMAN and Jerry Cook, Appellants, v. Pace ALLEN et al., Appellees.
    No. X-116.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.

      D. Michael Chesser, Fort Walton Beach, for appellants.
    C. LeDon Anchors, of Estergren, Fortune & Anchors, Fort Walton Beach, for appellees.
   PER CURIAM.

Appellants, defendants below, appeal from an adverse jury verdict alleging that certain jury instructions relating to res ipsa loquitur, foreseeability, and joint venture were erroneous and/or inadequate.

This case concerns the pollution of three small bodies of water or fish ponds located on three different parcels of property in Okaloosa County and owned by the three individual appellees. The parcels had a common link, a stream that flowed from appellants’ property. Appellant Coleman, who does business as Coastal Asphalt Company, had owned the 40 acre tract from which the stream emanated. He had operated an asphalt plant on the property and had placed five large fuel storage tanks on the grounds there. When appellant Cook bought the property from Coleman, he permitted Coleman to leave the storage tanks in place as an accommodation. In the early winter of 1973, Coleman removed the fuel tanks to an asphalt operation in Milton which was in appellant Cook’s name. Coleman candidly admitted that, in removing the tanks, approximately 1500 gallons of a water-oil mixture was accidentally dumped into a trailer hole located immediately adjacent to the storage tanks.

Around the first of January, 1974, appel-lees discovered that their fish ponds had become covered with a thick oil or similar petroleum product. In investigating the source of the oil, appellee Oglesby testified that she found three large holes located on appellants’ property adjacent to the stream which appeared to have a residue of oil in them. Mrs. Oglesby, Brian Carter (an employee of appellee Sikes), and William T. Young (a member of the Florida State Department of Pollution Control) all testified that the appellants’ property was the source of the oil, although Mr. Young did admit that the source of the oil could not be exactly determined. Testifying on this point on behalf of the appellants, Mr. George Black stated that the pollutants could not have originated from the appellants’ property and could not have come from any further than the first pond.

Before we consider the merits of the points raised by appellants, we note our concern over the manner in which the points were presented to this Court. In their brief, appellants attack the correctness of certain instructions given by the trial judge to the jury. Yet, appellants’ assignments of error merely allege that the verdict and judgment are contrary to the law and evidence and that the trial court erred in refusing to gire a certain instruction requested by appellants. The latter assignment of error was not argued in appellants’ brief and is therefore to be considered abandoned. The former assignment has been held by this Court to be clearly insufficient. (Gregg v. State Road Department, Fla.App.1st, 140 So.2d 328) A cursory glance at Rule 3.5(c), F.A.R., reveals that appellants have not embodied the following required essentials in their assignments of error. “The assignments or cross assignments of error shall designate identified judicial acts which should be stated as they occurred; grounds for error need not be stated in the assignment.” Although appellants now argue that the jury instructions on res ipsa loqui-tur, joint venture, and foreseeability were not proper or sufficient, no reference whatsoever to the foregoing three instructions is to be found in appellants’ assignments of error. The Florida Supreme Court has previously held that when an assignment of error relates to the giving or refusing to give specific charges to the jury, then the assignment should identify the charge erroneously given or refused. (Redditt v. State, Sup.Ct.Fla.1955, 84 So.2d 317, Aff’d Sup.Ct.Fla.1956, 88 So.2d 126)

Moreover, it appears that appellants’ counsel did not specifically object to the above mentioned instructions at trial. Appellants’ counsel did object to the following instruction: “If an individual who owns property allows another to store upon that property, tanks containing substances which are negligently handled by the other party or his agents, employees or servants, which cause damage to other property owners, the property owner would be liable as such negligence is done and damage to other property owners is caused.” No specific objection, however, was made to the instruction on res ipsa loquitur or joint venture, and no request was made to the trial judge for him to instruct the jury on foreseeability. Thus, upon evaluation of appellants’ assignments of error and the objections raised at the trial level, we are limited in our consideration of the points raised in appellants’ brief to the issue of whether fundamental error occurred.

A fundamental error is one which affects the very essence of the lawsuit. Our sister court of the Third District, when faced with a similar factual situation, stated: “There is only one possible exception to the requirement for an objection, that is where the record viewed as a whole demonstrates that the error complained of is so prejudicial that it may be considered a fundamental error which deprived the appellant of an impartial trial.” (Frankowitz v. Beck, Fla.App.3rd, 257 So.2d 918 at 919).

Our reading of the record has led us to the conclusion that no fundamental error occurred. Appellants first assert that the trial court should not have instructed the jury on res ipsa loquitur because appellee did not establish by direct or circumstantial evidence that the source of the pollutant originated from an instrumentality under the control of either appellant. Although the evidence is conflicting on this point, there was direct testimony at trial by witnesses Oglesby, Carter, and Young from which the jury could have concluded (and apparently did conclude) that the pollutant emanated from appellants’ property.

Neither did the trial court commit fundamental error by instructing the jury on joint venture or by failing to instruct the jury on foreseeability. As to the joint venture theory, the evidence in the record is again conflicting, but is sufficient to support a finding that the appellants were engaged in a joint venture. Finally, as to the element of foreseeability, it is entirely logical for a jury to conclude that the dumping of several hundred gallons of oil would result in damage to the appellees’ property. Even though the trial court did not give an explicit instruction to the jury on foreseeability, it would be presumptuous for this Court to hold that the trial court erred in failing to give such a charge when appellants’ counsel failed to request same.

Having found that the trial court committed no fundamental error and that the judgment is supported by the law and the evidence, we therefore affirm.

Affirmed.

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


text:
    Terry J. SPRINKLE et al., Petitioners, v. J. Allen HUNT, Jr., a minor by and through his father and next friend, J. Allen Hunt, Sr., Individually, Respondents.
    No. X-212.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Richard F. Ritch, Jones & Ritch, and Goldin & Turner, Gainesville, for petitioners.
    Robert R. Perry, Jacksonville, for respondents.
   PER CURIAM.

Petitioner’s petition for writ of certio-rari is denied.

It is so ordered.

BOYER, C. J., RAWLS, J., and SACK, MARTIN, Associate Judge, concur.


author: OWEN, Judge.

text:
    Cornelius McPHALL, Jr., and Clifford L. Crenshaw, Appellants, v. STATE of Florida, Appellee. Cornelius McPHALL, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 74-786, 74-906.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Wm. F. Mackey, of Chesley V. Morton & Associates, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Clifford L. Crenshaw and Cornelius McPhall, Jr. were jointly tried on an amended information alleging several counts. Crenshaw was convicted of possession of heroin and sentenced to five years in prison. McPhall was convicted of (Count 1) attempted possession of heroin, (Count 4) attempted carrying a concealed firearm, and (Count 5) possession of a firearm by a convicted felon, for which he received concurrent sentences of one, one, and five years respectively. Their joint appeal is our Case No. 74-786.

After trial of the above offenses, but before the judgments and sentences were entered, McPhall filed his motion to vacate the prior felony conviction (grand larceny in October 1960) which had been the basis of his present conviction under Count 5 above. The motion to vacate was denied and McPhall’s appeal from that order is our Case No. 74 — 906.

McPhall and Crenshaw are represented by the same attorney and it was upon appellants’ motion that we consolidated the two appeals. However, appellant McPhall has neither furnished us a record nor argued any matter in his brief relative to appeal No. 74-906, and the order therein appealed denying McPhall’s motion to vacate the felony judgment of October 1960 is affirmed.

In reference to Case No. 74-786, it is apparent that McPhall’s conviction for attempted carrying of a concealed firearm (Count 4) was simply a facet of the criminal act for which he was convicted under Count 5, i. e., possession of a firearm by a convicted felon. Fla.Stat. § 790.23 (1973). Since McPhall was sentenced to five years in prison for the latter offense, the concurrent sentence of one year in the county jail on the conviction of carrying a concealed firearm should be and is hereby vacated. Cone v. State, 285 So.2d 12 (Fla.1973); Copeland v. State, 313 So.2d 54 (4th DCAFla.1975); Jackson v. State, 311 So.2d 811 (1st DCAFla.1975); Yost v. State, 243 So.2d 469 (3rd DCAFla.1971).

No error otherwise appears and in all other respects the judgment and sentence as to appellant Crenshaw and the judgment and remaining sentences as to appellant McPhall are severally affirmed.

CROSS and DOWNEY, TJ., concur.


text:
    In the Interest of K. H. et al., children.
    No. 74-1094.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Richard A. Krause, Ormond Beach, for appellants.
    Stuart G. Green, of Sam E. Murrell & Sons, Orlando, for appellees.
   OWEN, Judge.

In this child custody case, the contending parties are the natural mother and her husband, to whom legal custody of two minor children was transferred by the order appealed, and the maternal grandparents, to whom temporary custody had been given some eighteen months earlier after the children had been found to be dependent children. The record contains substantial competent evidence to support the trial court’s finding that it was in the best interests of the two young boys that their custody be returned to their natural mother, and this being so, we cannot say that the court abused its discretion in ordering the change of custody. The order appealed is therefore affirmed.

The court’s order expressly provided that the dependent status of the boys was being continued for a period of one year at the conclusion of which the Division of Family Services was directed to request that the case be reviewed to determine the appropriateness of the court terminating jurisdiction or making any further orders necessary for the best interests of the children. The order was dated August 15, 1974. Although more than one year had transpired at the time this case was orally argued to this court, counsel advised us that such further hearing had not been held. Upon remand the trial court is respectfully requested to hold such further hearing as was contemplated by its order of August 1974, and to receive such evidence as it deems appropriate, and to enter such further order as to it appears to be for the best interests and welfare of the two young boys.

Affirmed.

CROSS and MAGER, JJ., concur.


author: DOWNEY, Judge.

text:
    Julian E. LAUGHINGHOUSE, Appellant, v. Paul AIELLO et al., Appellees.
    No. 74-1326.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Kárl O. Koepke and Calvin Lenox, III, of Whitaker & Koepke & Assoc., Orlando, for appellant.
    Monroe E. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellees, Paul Aiello and Insurance Co. of North America.
    Gary H. Rushmer and Jeffrey D. Kei-ner, of Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellees, Robert L. Bailey and Arnica Mut. Ins. Co.
   DOWNEY, Judge.

The trial court directed a verdict against appellant in the trial of his personal injury suit because the evidence failed to prove any of the threshold requirements of the Florida Automobile Reparations Reform Act so as to entitle appellant to maintain this suit.

We have reviewed the evidence in detail and find that the testimony adduced by appellant and his medical witnesses was sufficient to create a jury question as to whether his medical expenses exceeded the one thousand dollar threshold required by § 627.737, F.S.1973. Allstate Insurance Company v. Ruiz, Fla.App.1974, 305 So.2d 275. Accordingly, direction of a verdict was improper, necessitating reversal for a new trial.

Reversed and remanded for a new trial.

WALDEN, C. J., and OWEN, J., concur.


text:
    William Charles WINDHURST, Appellant, v. STATE of Florida, Appellee.
    No. 74-1477.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Nov. 12, 1975.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Craig Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Our consideration of the briefs and record convinces us that the appellate points posed for our consideration are without merit. See Richter v. State, 1969, 1 Tenn. Cr.App. 270, 438 S.W.2d 362, 364, and authorities cited therein.

We note however that the final judgment adjudicating appellant guilty of the crime of receiving stolen property fails to recite knowledge on the defendant’s part of the stolen character of the property. Spurlock v. State, Fla.App.1973, 281 So.2d 586.

Accordingly, the case is reversed and remanded to the trial court for entry of a proper judgment.

Reversed and remanded with directions.

CROSS, MAGER and DOWNEY, JJ., concur.


text:
    Edna CLARK, Appellant, v. ROBERTO’S, INC., Appellee.
    No. 74-1734.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Nov. 12, 1975.

      Walter A. Engdahl, Tylander, deClaire, Becker & Van Kleeck, Boca Raton, for appellant.
    William F. Zamer, Zamer & Stege, Pompano Beach, for appellee.
   DOWNEY, Judge.

Appellant sued appellee to rescind eleven enrollment agreements under which she paid appellee $99,895 for approximately 2800 hours of dancing lessons. (The complaint is strangely reminiscent of Vokes v. Arthur Murray, Inc., Fla.App. 1968, 212 So.2d 906, 28 A.L.R.3d 1405.) Service of process was had upon appellee’s treasurer. When appellee failed to timely plead to the complaint the clerk entered a default against it. Several days later appellee filed a motion to dismiss for failure to state a cause of action' and a motion for change of venue. Approximately two weeks thereafter the court held an ex parte hearing and entered final judgment for appellant in the amount of $71,571.10. Ap-pellee then moved to vacate the default alleging as grounds that the service of process on appellee’s treasurer was insufficient under § 48.081, F.S.1973. The motion also alleged a misunderstanding regarding the date of service by the sheriff which caused the late filing of its defensive motions. After a hearing on the motion to vacate, the trial judge entered an order finding that the service of process was proper and that appellee’s tardiness in pleading resulted from excusable neglect. The default and the final judgment were accordingly vacated and set aside. This interlocutory appeal is from that order.

It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense. See, e. g., Florida Investment Enterprises, Inc., v. Kentucky Co., Fla.App.1964, 160 So.2d 733. However, the absence of either of these elements will defeat an attempt to set aside a default. Chaney v. Headley, Fla.1956, 90 So.2d 297; Winter Park Arms, Inc., v. Akerman, Fla.App.1967, 199 So.2d 107; Empire Electric Co., v. R. J. Hunt Construction Co., Fla.App.1972, 264 So.2d 114.

In this case appellee never made the first gesture toward demonstrating that it had a meritorious defense. Its motion to vacate does not allege any such defense. Moreover, at the hearing on the motion to vacate, the trial judge asked appellee’s counsel about the necessity of showing a meritorious defense, but counsel still failed to show, either orally or by subsequent pleading, that appellee had such a defense.

Under the circumstances recounted above, the trial judge abused his discretion in vacating the default judgment. Accordingly, the order appealed from is reversed and the cause is remanded with directions to reinstate the default judgment of August 2,1974.

Reversed.

CROSS and OWEN, JJ., concur. .


text:
    James BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 74-1570.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Nov. 12, 1975.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur. MAGER, J., concurs specially, with opinion.

MAGER, Judge

(concurring specially) :

Although a review of the record does not reflect the existence of any reversible error with respect to the points involved in this appeal thereby supporting an affirm-anee I cannot help but question the ultimate disposition made in this case.

When the Florida legislature adopted chapter 801, F.S., known as the “Child Molester Act”, it was clearly their intention to establish a flexible approach for the treatment of child molesters by providing either penal and/or rehabilitative measures. Schroeder v. State, Fla.App.1971, 252 So.2d 270. It is difficult to fathom how this legislative intent is promoted or how the interest of society is furthered when a twenty-six year old individual who while serving as a scoutmaster is convicted of committing a lewd, lascivious or indecent act with or upon a minor child and is sentenced to the state prison for twelve years.

We compound a reprehensible and unr natural act by shipping the perpetrator to a penal institution with an atmosphere and surrounding which are more than likely to result in promoting rather than treating the very condition giving rise to the criminal act. Washington v. State, Fla.1974, 302 So.2d 401. At the very least, an individual who has committed an offense within the provisions of the Child Molester Act (and specifically, the defendant hereii}) ought to be submitted to psychiatric examination with a report of the findings presented to the trial judge to ascertain whether sentence to a penal institution or commitment to a treatment facility is warranted.

If our system is capable of permitting perpetrators of crimes (whether they be the so-called street crimes or those involving public corruption) to walk the streets without having served a day in any institution or only having received a mere slap on the wrist, our system can certainly withstand the impact created by a concern for those who may need and can be helped by treatment other than in a penal institution. A firm and swift application of the law is a deterrent to crime but is never a substitute for justice and fairness.

While what has transpired in the instant case is not “reversible error” nor a circumstance where the trial court has acted in a manner not authorized by law, nevertheless it is hoped that our judicial system in its quest to dispense justice does not lose sight of its flexibility and fairness in the achievement of its ultimate goal.


text:
    Paul HAHN, Appellant, v. Bobbie R. HAHN, Appellee.
    No. 75-190.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 17, 1975.
    William C. Sprott and John R. Young of Hamilton, James, Merkle & Young, West Palm Beach, for appellant.
    David F. Crow of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee.
   PER CURIAM.

Upon a review of the record on appeal and after due consideration of the briefs and oral argument we are of the opinion that no reversible error has been clearly demonstrated. Cf. Lee v. Lee, Fla.App.1975, 309 So.2d 26; Cantor v. Cantor, Fla.App.1975, 306 So.2d 596. Accordingly, the judgment appealed from is affirmed.

Affirmed.

CROSS, OWEN and MAGER, JJ., concur.


text:
    DADE COUNTY, a political subdivision of the State of Florida, et al., Appellants, v. Mike WAHL et al., Appellees.
    No. 74-1592.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 12, 1975.

      Stuart Simon, Dade County Atty., and Robert A. Ginsburg, Asst. County Atty., Miami, for appellants.
    Richard A. Lapidus, of Lapidus & Hollander, Miami, for appellees.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the trial court abused its discretion in not re-opening the case on re-hearing to consider whether Ordinance No. 73-78 of Dade County repealed Ordinance No. 11-24.

Accordingly, the final judgment appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

CROSS, OWEN and MAGER, JJ., concur.


text:
    In re ESTATE of James E. CRAFT, Deceased.
    No. 74-1282.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 17, 1975.
    Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellants, Thomas Craft, Executor of the Estate of James E. Craft and The First National Bank of Bluefield, Blue-field, W. Va.
    Joseph D. Farish, Jr. and Robert V. Ro-mani, of Farish & Farish, West Palm Beach, for appellees, Paul E. Craft and Jerry Elliot Craft.
   PER CURIAM.

Upon consideration of the briefs and oral argument and after examination of the record on appeal we are of the opinion that the trial court erred in determining that the inter vivos trust created by decedent was invalid.

It has been held that in order to constitute a valid trust (in personalty) three circumstances must occur: sufficient words to raise it; a definite subject matter; and a certain and ascertained object. Bay Biscayne Co. v. Baile, 73 Fla. 1120, 75 So. 860 (1917); Grapes v. Mitchell, 159 So.2d 465 (Fla.1963); Fraser v. Lewis, 187 So.2d 684 (Fla.App.1966). It has further been held that a trust may be created by deed or may rest entirely in parol or may be partially in writing and partially in pa-rol. Bay Biscayne Co., supra; Grapes v. Mitchell, supra; and Fraser v. Lewis, supra.

A review of the record reflects the existence of sufficient evidence to give rise to the establishment of a valid trust consistent with the foregoing principles. The words giving rise to the trust are reflected in a will and trust indenture executed by decedent on November 7, 1969, mailed to the trustee bank on November 8 and received by them on November 10. Further indication of the sufficiency of the words to create the trust is reflected by a telephonic conversation between decedent and a trust officer of the trustee bank on November 5, 1969, directing the cancellation of an old trust and the creation of the new one, and a letter of confirmation written by decedent to the trustee bank on November 8, 1969 pursuant to which the bank transferred the assets on its books on November 13, 1969.

The object of the trust is clearly reflected in the trust’s indenture as being for the purpose of providing an education for the children and grandchildren of the decedent.

The subject matter of the trust (eight shares of corporate stock from a block of 78 shares previously held by the trustee bank in a prior trust of the decedent) was in existence at the time of the execution of the new will and creation of the new trust and was ascertainable with reasonable certainty through the testimony of the trust officer of the trustee bank and the writings of the decedent. The procedures followed by the trustee bank in facilitating the establishment of the new trust cannot serve to defeat the validity of the trust if all other requisites necessary to its establishment were properly present. See Bay Biscayne Co., supra; see also Bogert, Trust and Trustees, 2d ed., sec. 111, and 33 Fla.Jur., Trusts, sec. 18.

Accordingly, the order of the court on petition for revocation of a portion of decedent’s last will and testament is vacated and set aside and the cause remanded for further proceedings not inconsistent with this opinion.

CROSS and MAGER, JJ., concur.

deMANIO, PETER M, Associate Judge, dissents, without opinion.


text:
    Ray Hampton BUFFKIN, as Administrator of the Estate of Steven Edgar Buffkin, Deceased, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, Florida, as the District Board of Commissioners of the Mosquito Control District of Brevard County, Florida, et al., Appellees.
    No. 74-1107.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.
    William H. Roundtree, Cocoa, for appellant.
    Harold R. Marsee and J. Richard Caldwell, Jr., of Pitts, Eubanks, Ross & Rum-berger, Orlando, for appellees.
   OWEN, Judge.

Appellant’s action for the wrongful death of his two-year-old son was dismissed with prejudice on the ground that the defendants were immune from suit under the doctrine of sovereign immunity.

The issue here is whether the Mosquito Control District of Brevard County, Florida, an agency of the state, had, by the purchase of liability insurance from the defendant, United States Fidelity and Guaranty Company, waived its sovereign immunity pursuant to Fla.Stat. § 455.06 (1973). We conclude that it had and that the court erred in granting the defendants’ motion to dismiss.

The complaint alleged that the plaintiff’s two-year old son drowned as a result of the defendant Mosquito Control District’s negligent maintenance of a county “owned and/or operated” drainage ditch. The complaint further alleged that the Mosquito Control District had purchased liability insurance from USF&G and had thereby waived its sovereign immunity pursuant to Fla.Stat. § 455.06.

Fla.Stat. § 455.06 provides as follows:

“455.06 Liability insurance; authority of counties, state agencies and certain political subdivisions to purchase
(1) The public officers in charge or government bodies, as the case may be, of every county, district school board, governmental unit, department, board or bureau of the state, including tax or other districts, political subdivisions and public and quasi-public corporations, other than incorporated cities and towns, of the several counties and the state, all hereinafter referred to as political subdivisions, which political subdivisions in the performance of their necessary functions own or lease and operate motor vehicles upon the public highways or streets of the cities and towns of the state or elsewhere, or own or lease and operate watercraft or aircraft or own or lease buildings or properties or perform operations in the state or elsewhere are hereby authorized, in their discretion, to secure and provide for such respective political subdivisions, their agents and employees while acting within the scope of their employment, insurance to cover liability for damages on account of bodily or personal injury or death resulting therefrom, to any person, or to cover liability for damage to the property of any person or both, arising from or in connection with the operation of any such motor vehicles, watercraft or aircraft, or from the ownership or operation of any stick buildings or property or livestock or any other such operations, whether from accident or occurrence; and to pay the premiums therefor from any general funds appropriated or made available for the necessary and regular expense of operations of such respective political subdivisions, without the necessity of specific appropriation or specification of expense with respect thereto. Provided, that in those instances where, by general law, provision has been made for the public officer in charge or governing body of such political subdivision to provide such insurance, this section shall not be construed to impair any such previous acts but shall be construed as cumulative thereto.
(2) In consideration of the premium at which such insurance may be written, it shall be a part of any insurance contract providing said coverage that the insurer shall not be entitled to the benefit of the defense of governmental immunity of any such political subdivisions of the state in any suit instituted against any such political subdivision as herein provided, or in any suit brought against the insurer to enforce collection under such an insurance contract; and that the immunity of said political subdivision against any liability described in subsection (1) hereof as to which such insurance coverage has been provided, and suit in connection therewith, are waived to the extent and only to the extent of such insurance coverage; provided, however, no attempt shall be made in the trial of any action against a political subdivision to suggest the existence of any insurance which covers the whole or in part any judgment or award which may be rendered in favor of the plaintiff, and if a verdict rendered by the jury exceeds the limit of the applicable insurance, the court shall reduce the amount of said judgment or award to a sum equal to the applicable limit set forth in the policy.”

(emphasis supplied)

From the allegations of plaintiff’s complaint it is clear that the drainage district, in the performance of its necessary functions, (1) owned or leased property, i. e., the drainage ditch, and (2) performed operations in the state, i. e., maintained the drainage ditch, and that the liability insurance which the drainage district purchased was to cover liability arising from or in connection with the ownership or operation of such property. Comparing these allegations with Fla.Stat. § 455.06, it is apparent that the Mosquito Control District was authorized on two separate bases under that statute to secure insurance coverage. Having secured this coverage, it effectively waived its immunity to the extent of the coverage secured.

Appellees’ reliance upon the case of Arnold v. Shumpert, 217 So.2d 116 (Fla.1968) is unavailing. That case merely held that Fla.Stat. § 455.06 did not make provision for insuring, and thereby waiving immunity, for liability for damages arising out of the operation of a traffic light. Clearly, that is not the situation with which we are confronted here.

The judgment of the circuit court is reversed and this cause remanded for further proceedings not inconsistent herewith.

MAGER and DOWNEY, JJ., concur.


author: GRIMES, Judge.

text:
    W. H. SMITH and Chester Rieck, Appellants, v. Cummins E. RATCLIFFE et al., Appellees.
    No. 75-83.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.
    William A. Keyes, Jr., of Stewart, Stewart & Jackson, Fort Myers, for appellants.
    James T. Humphrey, County Atty., and James G. Yaeger, Asst. County Atty., Fort Myers, for appellees Lee County Board of County Commissioners and Lee County Zoning Board of Adjustment.
   GRIMES, Judge.

Cummins E. Ratcliffe (Ratcliffe) applied to the Lee County Zoning Board for a variance. Following a public hearing, the zoning board recommended that the request be denied. On October 14, 1974, the Board of County Commissioners of Lee County passed a resolution granting the variance. On November 14, 1974, W. H. Smith (Smith) and Chester Rieck (Rieck) posted a letter asking for a rehearing on Ratcliffe’s petition for variance. On the same date, Smith and Rieck filed a complaint for declaratory judgment and injunction seeking to declare the resolution which granted the variance null and void. Thereafter, the Board of County Commissioners scheduled a rehearing for January 13, 1975. On December 30, 1974, Ratcliffe filed a petition for writ of prohibition in the pending declaratory judgment action seeking to bar the Board of County Commissioners from holding a rehearing. . On January 10, 1975, the court issued a writ of prohibition prohibiting the Board of County Commissioners “from Re-Hearing the Petition of Cummins E. Ratcliffe for zoning variance.”

As the predicate for its ruling, the court below stated:

“5. The aforementioned letter of November 14, 1974 requesting a Re-Hearing was filed after the time had expired for Petitioner to seek appellate review of the decision by the Lee County Board of County Commissioners and therefore said Petition requesting a Re-Hearing was not filed within a reasonable time and hence the Lee County Board of County Commissioners lack jurisdiction to rehear Cummins E. Ratcliffe’s Petition for Variance . . . . ”

Apparently, the court was referring to the second paragraph of Section 30 of the Lee County Zoning Code which provides as follows :

“Any person . . . who may be aggrieved by any decision of the Board of County Commissioners made pursuant to a review of any decision or action of the Board of Adjustments,- or any taxpayer, may, within thirty (30) days after such decision, but not thereafter, apply to said Circuit Court for relief.”

Assuming, without deciding, that the foregoing paragraph was applicable to the Board’s resolution of October 14, 1974, this would only be a ground upon which the complaint might be dismissed. It would not provide a basis for prohibiting the Board of County Commissioners from holding a rehearing.

We believe this case is controlled by the first paragraph of Section 30 of the Lee County Zoning Code which states:

“Any person . . . who may be aggrieved by any . . . resolution adopted by the Board of County Commissioners . . . may apply to such board at any time for a modification or rescission thereof. If such modification or rescission should be refused, any such person . . . may, within thirty (30) days after such refusal, but not thereafter, apply to the circuit court of the county for relief.”

This paragraph clearly permits an aggrieved person to apply “at any time” for a modification or rescission of a resolution previously adopted by the Board. The thirty-day limitation for applying to the court which is contained in this paragraph only comes into play after the Board has refused the requested modification or rescission.

We see nothing in the Zoning Code which precludes the Board of County Commissioners from holding the rehearing. In view of our interpretation of the Zoning Code, it is unnecessary for us to decide whether the Board was acting in a quasi-judicial capacity so as to make it amenable to prohibition in any event.

The writ of prohibition is hereby quashed.

McNULTY, C. J., and HOBSON, J., concur.

      . Smith and Rieck argue that this paragraph is wholly inapplicable because it relates only to a “decision of the Board of County Commissioners made pursuant to a review of any decision or action of the Board of Adjustments” and Lee County doesn’t have a Board of Adjustments.


author: RAWLS, Acting Chief Judge.

text:
    STATE of Florida ex rel. Robert Clark, WRIGHT, Relator, v. Theron A. YAWN, Jr., as Judge of the Circuit Court of the Eighth Judicial Circuit Court, in and for Alachua County, Florida, Respondent.
    No. Y-546.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Mack S. Futch, Public Defender, and Gary R. Dunham, Asst. Public Defender, for relator.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   RAWLS, Acting Chief Judge.

Relator, Robert Clark Wright, has filed in this Court a Suggestion for Writ of Prohibition in which he contends that he cannot be tried for sexual battery as his right to speedy trial has been violated. We issued the Rule, the Return was filed, and oral argument was heard.

On November 24, 1974, Wright was arrested on a charge of sexual battery. A preliminary hearing was held on November 27, 1974, in which County Judge Margaret Kathleen Wright' found that while the proof of Wright’s guilt is not evident nor the presumption great, nevertheless there was probable cause and that Wright should be bound over to the Circuit Court. Judge Wright set bond in the amount of $20,000.-00, and Wright posted said bond on December 20, 1974, at which time he was released from jail. No further action was taken by the state until April IS, 1975, when an Alachua County Grand Jury indicted Wright for sexual battery.

We pause at this juncture to emphasize two facts. First, 142 days elapsed between Wright’s arrest and his subsequent indictment by the grand jury. While these 142 days were passing, several grand juries having jurisdiction convened in Alachua County, but none acted on the charge against Wright. Second, sexual battery is not an offense for which a grand jury indictment is required by Florida Rule of Criminal Procedure 3.140, and during any one of the 142 days, the state attorney could have filed an information on the charge.

Upon being indicted on April 15, 1975, Wright found himself faced with a Hob-son’s choice. Pursuant to Florida Rule of Criminal Procedure 3.191(a)(1), if Wright remained “continuously ready and available”, the state had 38 days, i. e., until on or before May 22, 1975, to bring Wright to trial or discharge him. The same Criminal Rules at Rule 3.220 provide procedures whereby a person such as Wright, accused of a crime, can avail himself of discovery for the purpose of preparing for his defense. However, the Florida Supreme Court has recently held that if a defendant is still in the process of engaging in discovery, he is not “continuously ready and available for trial”, and thus cannot avail himself of the speedy trial provisions of F.R.Cr.P. 3.191(a)(1). Since only 38 days remained until the running of the time for a speedy trial, if Wright chose to engage in any discovery to prepare for his defense, the chances were great that the discovery procedure would not be complete at the end of the 38 days, and Wright under the provisions of F.R.Cr.P. 3.220 would not be able to avail himself of the speedy trial provisions of F.R.Cr.P. 3.191.

What transpired after the April 15th indictment was a valid but fruitless effort on Wright’s part to prepare himself for trial on or before May 22, 1975. Wright was scheduled for arraignment on April 21, 1975, but on April 18, 1975, he entered a written plea of not guilty. Likewise, on April 18, 1975, he filed a demand for written discovery pursuant to F.R.Cr.P. 3.-220(a). Wright’s trial was initially scheduled for the trial docket beginning the week of July 21, 1975, which was well after the time for speedy trial had run. On April 21, 1975, the state filed a motion to set advance trial date noting that the time for speedy trial pursuant to F.R.Cr.P. 3.-191(a)(1) was going to run on May 22, 1975. A hearing was held on this motion on April 29, 1975, at which time trial was ordered to be scheduled on the May trial docket. At this hearing, Wright’s attorney objected that he would have only 19 days to prepare for trial and noted that the state had. not furnished Wright with a copy of the witness ¡list or other information which he had requested pursuant to F.R.Cr.P. 3.220. After the hearing on April 29, the state furnished Wright’s counsel with the information which he had demanded in the discovery proceedings. Wright’s counsel immediately set down the six witnesses whose names were supplied by the state for depositions on May 7, 1975. Upon taking these depositions on May 7, Wright’s counsel learned the names of six other persons who had information relevant to the' offense, and whose names had not been furnished by the state in its original answer to the discovery demand. It was also learned that a latent fingerprint had been lifted from the scene of the alleged crime, and this fingerprint had been successfully matched to that of Wright’s by a fingerprint expert from the Gainesville Police Department. Wright’s counsel immediately scheduled for May 20, 1975, discovery depositions of the six newly discovered witnesses. On the same date, Wright’s counsel filed three motions which were: 1) to authorize cost of an independent fingerprint examination; 2) motion to compel discovery of the correct full names and addresses of two witnesses mentioned at the depositions on May 7, 1975; and 3) a motion to continue without prejudice to the defendant’s (relator’s) right to speedy trial. A hearing was held on all three of these motions on May 19, 1975, at which time the state and Wright’s attorney stipulated that an expert from the Florida Department of Criminal Law Enforcement would act as an independent fingerprint examiner for purposes of Wright’s motion on that matter; and that the state would furnish Wright with the requested information concerning the two witnesses and that the witnesses would be available for discovery depositions prior to trial. A decision of the speedy trial motion was deferred until a hearing to be held just prior to trial.

The cases which were set for the May trial term were scheduled for Docket Day on May 12, 1975. The assistant state attorney was present at Docket Day as well as was counsel for Wright. When Wright’s case was called, it was scheduled for May 27, 1975, without any objection from the state and without asking for an extension of time beyond the normal 180-day time. On May 23, after the time for speedy trial had run pursuant to F.R.Cr.P. 3.191(a)(1), Wright filed his motion for discharge. The motion for discharge was denied by the trial judge on the basis that Wright was still engaging in discovery procedures and was not “continuously ready and available for trial” as outlined in Rubiera v. Dade County ex rel. Benitez, supra.

As revealed by the above, Wright attempted to beat the Hobson’s choice but found himself caught in a “squeeze play”. While we recognize the Supreme Court’s holding in the Rubiera case and agree with it in a situation where a defendant has had ample time between the filing of an indictment or information to engage in discovery procedures, we do not feel that the instant cause is controlled by Rubiera. The state, through its own inaction by failing for 142 days to return either an indictment or an information against a person, cannot force a defendant to choose between two coequal rights. While the Florida Rules of Criminal Procedure have in recent years been given great emphasis as to an accused’s right to speedy trial and discovery, we cannot forget that these rights are ultimately protected by our State and Federal Constitutions. We hold that Wright has been denied his right to speedy trial.

The Writ of Prohibition is made absolute and respondent is hereby prohibited from taking further action in the above styled cause.

McCORD, J., and SMITH, SAMUEL S., Associate Judge, concur.

      . Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

      . Florida Rule of Criminal Procedure 3.191 (a)(1).

      .This date is 180 days after Wright was taken into custody. Florida Rule of Crim-inas Procedure 3.191(a) (1).

      . Article I, Section 16, Florida Constitution; and Sixth Amendment, Constitution of the United States.

      . Florida Rule of Criminal Procedure 3.191 (a) (1) ; Article I, Section 16, Florida Constitution ; and Sixth Amendment, Constitution of the United States.


text:
    Henry F. MARYEA, Appellant, v. Ermgard MARYEA, Appellee.
    No. 75-103.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.

      James I. Knudson, St. Petersburg, for appellant.
    Joan LoBianco Walker, St. Petersburg, for appellee.
   GRIMES, Judge.

This is an appeal by the husband from a judgment of dissolution of marriage.

The parties were married approximately two years. The wife is fifty-six years old, and her health is such that she can probably no longer work. She has assets worth about $125,000. The husband is forty-nine years old, and he is in good health. He earns about $100 per week. Following their marriage, the wife’s funds were used to purchase a home and furnishings, a $10,000 certificate of deposit and a boat, trailer and motor, all of which were put in the names of both parties. The wife also opened a joint savings account, the balance of which is now $1,800.

The court concluded that the wife had put this property in the names of both parties only because of her mistaken belief that the law in Florida made it necessary for her to place property purchased here in the joint names of the husband and wife. The court concluded that there was no do-native intent on the part of the wife with respect to these properties. Thereupon, the wife was granted exclusive ownership of the home and furnishings, the certificate of deposit and the savings account. However, the husband was granted as lump sum alimony the boat, trailer and motor. Certain other gifts previously made by the wife to the husband were confirmed, and the wife was required to contribute $1,000 to the payment of the husband’s attorneys’ fees.

With respect to transactions occurring subsequent to the adoption of Florida’s new Constitution, where a wife’s separate funds are used to acquire property in which title is taken as tenants by the entirety, a rebuttable presumption is raised that she intended to make a gift to her husband. Ball v. Ball, Fla.App.2d, 1974, 303 So.2d 32. The evidence relevant to rebutting the presumption is proof of lack of donative intent. Pollak v. Pollak, Fla.App.3d, 1973, 282 So.2d 30. At one time, the degree of proof required was beyond a reasonable doubt. Pollak v. Pollak, supra; Schoenrock v. Schoenrock, Fla.App.2d, 1967, 202 So.2d 571. More recently, since these issues have always been exclusively the subject of equity jurisdiction, the burden has been reduced to the extent that the proof must now only be by clear, convincing and satisfactory evidence. Allstate Insurance Company v. Vanater, Fla.1974, 297 So.2d 293; Abbott v. Abbott, Fla.App.2d, 1974, 297 So.2d 608.

The record supports the finding of clear and convincing evidence that the wife did not intend to make a gift of an interest in the home and furnishings. However, the same proof with respect to the certificate of deposit and the savings account is lacking. The wife’s testimony concerning her understanding of the law of community property as it related to these items is equivocal. Moreover, she affirmatively said that she put the certificate of deposit in both names because she “thought we were going to have a nice marriage” and caused her husband’s name to be included on the savings account in order to make him “feel good.” While we can appreciate the trial judge’s efforts to equitably resolve the conflicting claims, there appears to be insufficient evidence to overcome the presumption of a gift of an interest in the certificate of deposit and the joint savings account. Therefore, when the marriage was dissolved the husband became entitled to an undivided one-half interest in these properties. Fla.Stat. § 689.15 (1973).

The husband’s contention that the court erred in failing to grant him permanent periodic or additional lump sum alimony is without merit.

Affirmed in part; reversed in part.

McNULTY, C. J., and HOBSON, J., concur.


text:
    TERRELL-BROWN & COMPANY, a Florida Corporation, Petitioner, v. G & G CONSULTANTS, INC., a Florida Corporation, et al., Respondents.
    No. 75-1315.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Mary Elizabeth DONNELLY, Petitioner, v. Paul Mark RYAN et al., Respondents.
    No. 75-1070.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Certiorari denied.


text:
    REALCO SERVICES, INC., a/k/a Rea Leasing Corporation, Appellant, v. FLORIDA MOTORSHIPS CORPORATION et al., Appellees.
    No. 75-1269.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Wolfgang VON DUNSER and Annegret von Dunser, his wife, Appellants, v. CROW, POPE & CARTER CORPORATION, a Florida Corporation, et al., Appellees.
    No. 75-839.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Stanley MIZELL, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-804.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Certiorari denied.


text:
    The STATE of Florida, Petitioner, v. Stanley MORGAN, Respondent.
    No. 75-991.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Gilbert ZAFREN, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, FLORIDA DEPARTMENT OF COMMERCE, and Grants Furniture Plaza, Inc., Respondents.
    No. 75-805.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
   PER CURIAM.

Certiorari denied.


text:
    JACKSONVILLE ELECTRIC AUTHORITY et al., Petitioners, v. VEN-FUEL, INC., Respondent.
    No. 75-897.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Certiorari denied.

I


text:
    Nat RATNER, as Trustee, Petitioner, v. FIRST MORTGAGE INVESTORS, a Massachusetts business trust, by and through its Trustees, Jack R. Courshon, et al., Respondents.
    No. 75-695.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 1975.
   PER CURIAM.

Certiorari denied.


text:
    STATE of Florida, Petitioner, v. David McGUFFIN and Thomas A. Pannier, Respondents.
    No. 75-737.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 1975.
   PER CURIAM.

Certiorari denied.


text:
    STATE of Florida, Petitioner, v. David William McGUFFIN, Respondent.
    No. 75-1063.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Donald L. BELL, Appellant, v. Carol J. BELL, Appellee.
    No. 75-1249.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Howard GARFINKLE and Barbara Garfinkle, his wife, Appellants, v. S-L ACOUSTICS, INC., a Florida Corporation, Appellee.
    No. 74-1621.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Robert M. VOLIN, Petitioner, v. CITY OF SOUTH MIAMI, Respondent.
    No. 75-992.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    TERRELL-BROWN & COMPANY, a Florida Corporation, Appellant, v. BOULEVARD NATIONAL BANK OF MIAMI, a U. S. Banking Association, Appellee.
    No. 75-1325.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1975.
   PER CURIAM.

Appeal quashed.


text:
    ALECA CONSTRUCTION COMPANY et al., Appellants, v. NASH BROTHERS, INC., et al., Appellees.
    No. 75-753.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Salvador M. AMADO, and Gateway Insurance Company, Appellants, v. Donald P. BURGESS et al., Appellees.
    No. 74-1124.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Henry D. CASTRO, Appellant, v. The LIME TWIG ENTERPRISES, INC., a Florida Corporation, et al., Appellees.
    No. 75-903.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Lillian CERF, Appellant, v. Jean BECKER and Central Bank & Trust, Appellees.
    No. 75-752.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Donald Charles FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-797.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    FLORIDA LUMBER COMPANY, a Florida Corporation, Appellant, v. ROVAN CORPORATION, Appellee.
    No. 75-1027.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    FLORIDA PROCESSING COMPANY and Fireman’s Fund American Insurance Company, Appellants, v. Delbert BETHEL et al., Appellees.
    No. 75-784.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GRAND BAHAMA HOTEL COMPANY and American International Insurance Company, Appellants, v. Penelope K. DUNWIDDIE et al., Appellees.
    No. 75-166.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    HIGHLANDS COUNTY LAND AND TITLE COMPANY, Appellant, v. Maurice SLUTSKY et al., Appellees.
    No. 75-959.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel. Heriberto GIL, Appellant, v. Honorable James S. RAINWATER, Judge of the County Court, “Division”, in and for Dade County, Florida, Appellee.
    No. 75-882.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    William L. TAUB, Appellant, v. SUTTON IMPERIAL ASSOCIATES and Alexander Cole, Appellees.
    No. 75-886.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Henry Jeff RAGIN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-921.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 1975.
   PER CURIAM.

Appeal dismissed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Paul Charles WEATHERS, a/k/a Sammy R. Allen.
    No. 56221.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Jude Thaddeus Fanguy, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A bill of information' charged that on January 4, 1974 Paul Charles Weathers, while armed with a .22 caliber revolver, robbed one Tranqueline Sterns, a clerk of the Phil-A-Sac Store in Houma, Terre-bonne Parish. La.R.S. 14:64. After trial by jury on February 21, 1975 Weathers was found guilty as charged and sentenced to serve 99 years at hard labor.

On this appeal Weathers assigns four errors.

Error No. 1

Prior to trial defendant filed a motion to suppress as evidence a .22 caliber pistol, a red sweater, and approximately $90 on the ground that these objects were obtained by an unconstitutional search and seizure. According to defendant’s allegations, these items were illegally obtained from his vehicle without a search warrant and without probable cause. After a hearing, the motion to suppress was denied, and defendant objected and assigned the ruling as error.

At the hearing on the motions, it was shown that at about 7:30 o’clock on the morning of January 5, 1974, Officer Null of the Houma police noticed on the dispatcher’s desk at headquarters a description of a suspect wanted for robbery of the Phil-A-Sack store the night before. The description fit Weathers, who Null had handled before in connection with other violations. As he was leaving, he told the dispatcher, “the man you probably want for that, and you can tell your detectives, is Paul Weathers.” Weathers had not then been arrested.

Later, at 9:15 that morning, while driving west on East Main Street in the police car with Officer Shephard, Null heard a police broadcast that a suspect was wanted for the armed robbery of a Shop-Rite Food Store several minutes earlier. The broadcast description informed them that the suspect was a “white male, curly hair, approximately 5’ 7", red sweater, black pants, black shoes.” Both officers realized immediately that the description fit Weathers because of their prior dealings with him. They therefore headed towards Weathers’ residence to question him. Before they could reach the site, however, they observed Weathers driving by on East Main Street also, away from the general direction of the Shop-Rite Food Store which had just been robbed seven blocks away. They immediately pursued and stopped Weathers.

When Weathers got out of the car, the officers observed that he was wearing black pants and shoes. A red sweater was lying on the front seat. Protruding from under the driver’s seat on the floor board, the officers noticed a .22 caliber gun.

Officer Null testified that he recognized Weathers as he drove by, and when they pursued him and got a closer look he confirmed the identification. He had dealings with Weathers a “coupla days” previously. In addition this same description had been broadcast for more than a month in connection with a vandalism case. Both Null and Shephard had previously learned that the description applied to Weathers. Two days before January 5, they had captured Weathers and charged him with reckless and hit and run driving. They knew he was out of a job, that he needed money to pay fines and a lawyer, and that he would probably commit robberies.

It is the defense contention that at the time Weathers was stopped he was not acting suspiciously or violating any law. Under these circumstances, it is argued, the prior dealings the officers had with Weathers and the police broadcast of his description did not give the officers sufficient knowledge to establish probable cause for the investigatory stop; and for this reason the ensuing search and seizure were illegal. State v. Saia, 302 So.2d 869 (La.1974) is cited to support the defense contention.

As we understand the standard to be applied in such cases, something less than probable cause, that may be termed “reasonable cause”, is a prerequisite to making a forcible stop to investigate a crime which will not be violative of the rights secured by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

It is, then, a question of the sufficiency of the knowledge the officers had of suspicious facts and circumstances to permit an infringement on the suspect’s right to be free from governmental interference. State v. Saia, supra. Cf. La. Code Crim.Proc. art. 215.1, Louisiana’s “Stop and Frisk” statute.

No hard and fast rule can be formulated for the resolution of these cases. It is, as always, a test of reasonableness which both Federal and State Constitutions make clear. U.S.Const. 4th Amend.; La.Const, art. 1, ¶ 7 (1921). For these reasons we have made a detailed reference to the facts and circumstances upon which the officers relied to justify their stopping Weathers to investigate. In our view these facts and circumstances furnish the requisite knowledge to give them reasonable cause for their actions. This . assignment of error has no merit.

Error No. 2

Defendant argues that he was prejudiced when the sweater, pants and gun were identified by the officers in open court in front of the jury but were never introduced into evidence.

The only defense objection to this evidence, made in the form of a motion to suppress during trial, outside the presence of the jury, was that it was stamped as evidence in a previous trial. This fact, the defense argues, would indicate to the jury that defendant was a bad man because the evidence had been used against him in another criminal trial.

Aside from the fact that these markings were not called to the attention of the jury, the trial judge did not feel that the markings would necessarily indicate to the jury that the objects had been used in evidence against the defendant in another trial. Further, there was nothing to indicate that the prior trial resulted in a conviction of the defendant. Accordingly, the trial judge overruled the objection. This issue is not urged in their appeal.

When the State questioned the officers and had them identify the objects, but did not offer them into evidence, defendant did not object. At the end of the trial, however, he requested a special charge that the jury be instructed not to consider these items, as they had not been introduced into evidence. Accordingly, a charge was formulated and approved by the trial judge, the State’s attorney and counsel for the defense. The charge given instructed the jury to disregard the pistol, pants and sweater, and not to consider these objects as evidence in their deliberation.

For the first time in this Court on appeal the defendant contends that the prejudice caused by the production of these items in court could not be rectified by a charge to the jury.

To properly present this issue it was necessary that defense counsel object at, the time the objects were referred to in the testimony of the witnesses. La.Code Crim.Proc. art. 841. A later agreement, in which defense counsel took part, to instruct the jury to disregard these controversial objects had the further effect of waiving any objection to the procedure. State v. McCurady, 286 So.2d 638 (La.1973).

Error Nos. 3 & 4

These assignments relate to the defense objection to the denial of his motion for a directed verdict on the ground that if the sweater, pants and gun referred to in the discussion of Error No. 2 had been excluded, the testimony of the victim alone was insufficient to prove that -defendant committed the robbery.

A contention that the evidence is insufficient to prove the guilt of the accused presents nothing for review by this Court. State v. Douglas, 278 So.2d 485 (La.1973). Only an allegation that there was no evidence at all to prove a certain essential element of the crime will permit this Court to review the facts. State v. Collins, 306 So.2d 662 (La.1975).

By a review of the pleadings and proceedings (La.Code Crim.Proc. art. 920[2]), according to the minutes of court, it appears that the sentence is defective. In pertinent part, it prescribes:

“Whereupon, after having had his say, said accused was sentenced to suffer imprisonment at the Louisiana State Penitentiary, Department of Corrections, Angola, Louisiana, for a period of ninety-nine (99) years without benefit of probation, parole, commutation, and or diminution of sentence during good behavior as provided by law.”

Deprivation of commutation of sentence is not an authorized penalty for armed robbery. To deprive a convicted party of the right to a commutation of his sentence is, moreover, an infringement upon a constitutional prerogative of the Governor. La.Const. art. 5, ¶ 10 (1921); State v. Ramsey, 292 So.2d 708 (La.1974). This part of the sentence must be corrected. La.Code Crim.Proc. art. 882.

For the reasons assigned, the conviction is affirmed, and the case is remanded to the trial court for proper sentencing.