author: RAWLS, Judge. BOYER, Judge,

text:
    Gail C. McBRIDE, Appellant, v. Douglas B. McBRIDE, Appellee.
    No. FF-310.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.

      Isham W. Adams, Daytona Beach, for appellant.
    James L. Padgett, Crescent City, for ap-pellee.
   RAWLS, Judge.

By this interlocutory appeal, appellant-wife seeks review of an order entered by a successor judge modifying the final judgment of dissolution of marriage by changing nunc pro tunc the form of alimony from permanent to rehabilitative.

The parties were married June 11, 1966, approximately ten days after the wife graduated from high school. The wife was 17 years old and the husband was 21 years old. During their marriage, the parties had two sons. The wife was never employed in the marketplace during the marriage.

In May of 1975, the husband filed a petition for dissolution of marriage accompanied by an offer of judgment. The parties entered into a stipulation by which they settled provisions for child support, visitation, and property settlement. The husband further agreed to pay $500.00 per month alimony; however, the parties were unable to agree whether the alimony payments would be made on a permanent or rehabilitative basis.

On October 17,1975, Judge Leon F. Stewart entered his order dissolving the marriage, incorporating the stipulation provisions into the order, and directing that the $500.00 per month alimony be permanent. The husband filed a petition for rehearing which was denied on December 19, 1975. No appeal was taken.

On February 10,1976, the husband filed a petition for modification alleging a mistake of fact as to his financial status at the time of entry of the final judgment; the ability of his ex-wife to work; and financial losses that were leading to his bankruptcy. (A financial statement dated December 31, 1975, was filed with the trial court which listed the husband’s net worth as $202,-179.38. Also, a statement of cash receipts and disbursements was filed listing a cash balance of $75,425.17.) Following a hearing, Judge Stewart denied the petition for modification on April 2, 1976. Such denial constituted an affirmance of the previous order as to permanent alimony.

On September 24, 1976, the husband filed a petition for modification alleging material changes in the circumstances of the parties. An amended and second amended petition were filed. The second amended petition alleged that the income of the husband had materially changed and substantially decreased, that the circumstances of the wife had changed in that the minor children had both attained school age, and that subsequent to January 17,1977, freezing weather had destroyed a vast majority of the husband’s fern crop which was the source of his income. The husband prayed that the court “reduce his child support payments, and substantially reduce or eliminate entirely alimony payments.” (A financial statement dated December 31,1976, was filed showing a net worth of $94,308.66.)

On March 10, 1977, Judge Upchurch, Judge Stewart’s successor, entered his order denying any modification in the child support or the amount of alimony but amending nunc pro tunc the final judgment of October 17, 1975, so as to provide that the alimony be rehabilitative, rather than permanent, payable for four consecutive years commencing October 1, 1975.

As grounds for reversal, appellant urges that the successor trial judge was without jurisdiction or authority to modify the final order of his predecessor.

Generally, in the absence of mistake or fraud, a successor judge cannot review, modify or reverse, upon the merits on the same facts, the final orders of his predecessor. Bailey v. Bailey, 204 So.2d 531 (Fla. 3rd DCA 1967).

Section 61.14, Florida Statutes, provides that the circuit courts have jurisdiction to make orders as equity requires to decrease or increase the amount of alimony with due regard to the changed circumstances or the financial ability of the parties. The jurisdiction of a successor judge is limited, for it has been held that while a successor judge could modify prospectively pursuant to Section 61.14, he could not “clarify” a final judgment of dissolution so that additional obligations would relate back to the time of the entry of the original judgment. Floyd v. Floyd, 281 So.2d 63 (Fla. 3rd DCA 1973). Thus, that portion of the trial court’s order making the four-year period of rehabilitative alimony effective the date of the original decree was error because of its retroactive nature.

As to the form of alimony, rehabilitative vs. permanent, it should be noted that the husband petitioned for a reduction or elimination of alimony. The primary criteria to be used in establishing the amount of alimony is still the husband’s ability to pay and the needs of the wife, taking into consideration the standard of living by the parties to the marriage. Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3rd DCA 1972); and Firestone v. Firestone, 263 So.2d 223 (Fla. 1972).

In Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974), the Fourth District Court of Appeal stated:

“ . . . the husband’s petition for modification alleging matters bearing upon a substantial change in his financial circumstances and resulting in the order under review merely prayed for ‘an order reducing child support and alimony’. The pleadings do not reflect any suggestion or intimation that the husband’s obligation to pay alimony should cease because of a [sic] substantial changes in his circumstances or those of his wife.
“Nevertheless, the trial court proceeded to terminate the husband’s alimony obligation rather than reduce the same during his period of financial inability as prayed for in his petition. The trial court predicated this cessation upon its finding that there was ‘no justification in extending the husband’s obligation for alimony to a woman who is well capable of supporting herself’. This gratuitous determination was inconsistent with the husband’s petition for modification and for that matter with every other plead-and prayer for relief filed by the husband in the dissolution proceedings.”

In the instant case, the husband petitioned for a reduction or elimination of alimony. The trial court declined to reduce the alimony; however, it changed the form of alimony from permanent to rehabilitative. This was error. The evidence presented established nothing more than the husband was undergoing a temporary reduction in income due to a winter freeze with resulting damage to his fern acreage. There was no evidence presented that the wife’s financial circumstances had changed nor was there any evidence that the wife’s ability for self support would occur at the end of the four-year period.

The judgment appealed is REVERSED.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

Prior to the untimely death of Judge Leon Stewart he entertained a petition for dissolution of the marriage of the parties hereto. In due course there was filed in the cause a stipulation which recited, inter alia, the following:

“That Petitioner shall pay and Respondent shall accept as total alimony and support for herself the sum of five hundred ($500.00) dollars per month, commencing on the first day of October, 1975, and continuing on the first day of each and every calendar month thereafter until appropriately terminated.
“The parties hereto stipulate and agree that the said sum of $500.00 per month is a fair and adequate alimony payment for respondent. However, they are unable to agree as to whether said payments should be made on a permanent or rehabilitative basis. Specifically, Respondent is of the opinion that said payment should be made permanently; however, Petitioner is of the opinion that said payments should be made only until such time as Respondent is able to contribute to her own support and general welfare. In consideration of this disagreement, the parties hereto request the Court to resolve this controversy either by trial or by testimony taken before a Special Examiner. In any event, the parties hereto agree that in no event shall Petitioner be further responsible for alimony payments in the event of the demise or remarriage of respondent, and all such obligations in this regard shall be discharged upon either of those events.”

Judge Stewart entered a final judgment dissolving the marriage in which he also ordered:

“The stipulation of the parties, dated the 10th day of December, 1975, and filed in this cause, a true copy of which is attached, is approved and by reference incorporated in and made a part of this final judgment and the parties are ordered to comply with the provisions thereof. The alimony payable by Petitioner to Respondent shall continue until the death of the Petitioner, the death or remarriage of Respondent or the further order of this Court modifying the same due to change in circumstances.
“This Court retains jurisdiction of this cause and of the parties hereto as to matters relating to child custody and support, alimony and the enforcement of this Court’s final judgment.”

Florida Statute 61.08 provides that alimony may be rehabilitative or permanent in nature. It further provides that: “in any award of alimony, the court may order periodic payments or payments in lump sum or both.”

On February 9, 1977, Mr. McBride filed a second amended petition for modification, reciting that it was filed pursuant to Florida Statute 61.14, alleging a change in circumstances and praying that the court “substantially reduce or eliminate entirely alimony payments.” In the meantime Judge Stewart had died and had been replaced by Judge Upchurch. On March 10, 1977, Judge Upchurch entered an order reciting that the petition to reduce or eliminate alimony was denied but providing that the final judgment “is amended nunc pro tunc to provide that the alimony payable by Petitioner shall be rehabilitative alimony, payable at $500.00 per month for a total consecutive period of four (4) years only, commencing as agreed in the stipulation of the parties (October 1, 1975).” The order further provided “In the event Petitioner/Husband dies, or Respondent/Wife dies or remarries prior to the termination of the four year period, all remaining sums due for the period of this alimony award due and payable after occurrence of said event, will terminate.”

Florida Statute 61.14 provides in material part as follows: “When the parties have entered into * * * an agreement for payments for * * * alimony * * * or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed * * * either party may apply to the Circuit Court * * * for a judgment decreasing or increasing the amount of * * * alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the' parties * * * decreasing, increasing or confirming the amount of * * * alimony provided for in the agreement or order.”

Florida Statute 61.08(2) provides that in determining a proper award of alimony, the court may consider any factor necessary to do equity or justice between the parties.

It will be noted that the final judgment of Judge Stewart did not specifically provide that the alimony be either rehabilitative or permanent in nature. He did provide that it would continue “until the death of the Petitioner, the death or remarriage of Respondent or the further order of this Court modifying the same due to change in circumstances.” (Emphasis added) It is apparent therefore that Judge Stewart anticipated that the alimony award be modified by order of the court due to change in circumstances.

Both parties agreed during oral argument that there was no significance to the recitation in Judge Upchurch’s order (the order here appealed) that the modification therein provided by “nunc pro tunc”; both parties agreeing that the effect of the order is the real issue and not the verbiage employed.

When considered in its entirety, it is apparent that the original final judgment entered by Judge Stewart is just as susceptible of being interpreted as providing for terminable rehabilitative alimony as it is for permanent alimony. (See Gann v. Cann, 334 So.2d 325 [Fla. 1st DCA 1976].)

In Ruhnau v. Ruhnau, 299 So.2d 61, (Fla. 1st DCA 1974) we said:

“We also point out that the word ‘permanent’ is not necessarily synonymous with ‘forever’. Change of circumstances, including ability of self support after children are ‘grown and gone’ clearly justifies, depending upon the circumstances of each case, modification of alimony judgments. (Florida Statute 61.14)”

In my view, F.S. 61.14, when construed in pari materia with F.S. 61.08(2), as well as the final judgment itself which specifically provided that the alimony was payable until “the further order of this Court” contemplated that the alimony was subject to modification, including termination.

The learned trial judge had the duty and responsibility of weighing the evidence and determining the facts based thereon. Interference in that responsibility is not the prerogative of an appellate court. The record clearly reveals evidence from whence the trial judge could have found (and apparently did) that Mr. McBride was on the verge of financial disaster. There was also evidence to support the trial judge’s determination that after a rehabilitative period Mrs. McBride would no longer require alimony. Financial genius is not required to determine that a terminable obligation is more palatable on a financial statement than is a continuing or permanent obligation. The trial judge had the right to wisely attempt to avoid killing the goose who is laying the golden egg. In reality and legal effect all he did was modify a final judgment the verbiage of which reflects was initially anticipated to be subject to modification by declaring the alimony therein provided to be rehabilitative rather than permanent when the final judgment had up until that time remained silent on that issue.

The majority opinion relies heavily upon Herbert v. Herbert, an opinion of our sister court of the Fourth District. Insofar as that opinion may be construed as prohibiting adjudication of issues not anticipated by the pleadings (in the absence of a waiver or consent) I am in agreement therewith. However, insofar as the opinion might be read to hold that termination may not be adjudicated upon a petition for reduction I would disagree therewith. In no event, however, does that opinion have any applicability sub judice since, as above recited, the petition giving rise to the order here appealed prayed alternatively for reduction or elimination.

Lest there be any misunderstanding as to the period over which rehabilitative alimony may be extended upon proof that a former wife’s “mothering responsibilities” are being discharged and are therefore impeding her period of rehabilitation I point out that rehabilitative alimony may be extended, upon timely application and proof, until such time after termination of the mothering responsibilities as is required for the former wife to then rehabilitate herself, health and other factors permitting. (See Manning v. Manning, 353 So.2d 103 (Fla. App. 1st 1977]).

I would affirm without prejudice to the right of appellant to seek, at the appropriate time, an extension of the rehabilitative alimony, upon a showing of need therefor in accordance with the guidelines provided by this opinion and the other decisions herein cited.

      . We construe Judge Stewart’s language in the final judgment to the effect that “the alimony payable by Petitioner to Respondent shall continue until the death of the Petitioner, the death or remarriage of Respondent or the further order of this Court modifying the same due to change in circumstances” to constitute an award of permanent as opposed to rehabilitative alimony.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    FLAGSHIP STATE BANK OF JACKSONVILLE, a Banking Corporation, Appellant, v. Costa CARANTZAS, Appellee.
    No. CC-470.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1977.
    Rehearing Denied Jan. 5, 1978.

      Calvin E. Hayden, of Smith & Hayden, Jacksonville, for appellant.
    John Paul Howard, Thomas R. Welch, Jacksonville, for appellee.
   ERVIN, Judge.

Flagship Bank appeals a final judgment which (1) granted a motion to dismiss the Bank’s levy upon certain personal property in the possession of the Sheriff of Duval County which was held subject to a prior successful bid by Carantzas, and (2) ratified the bill of sale from the sheriff to Carant-zas. We reverse as to that portion of the judgment ratifying the bill of sale.

In the summer of 1973, Flagship obtained two final judgments against the judgment debtor, William B. Lanier, Jr. One judgment was in the amount of $15,792.16, the other in the amount of $8,287.07 with costs of $40.00. Writs of execution were indexed and docketed with the Sheriff of Duval County. Two years later, Carantzas recovered from the same judgment debtor a deficiency judgment of $90,566.62. Carantzas’ execution was also docketed and indexed with the sheriff. Carantzas delivered to the sheriff instructions for levy on personal property owned by the debtor and the sheriff published notice of sale stating that the property levied upon would be sold, subject to all prior liens, to the highest and best bidder for cash. The notice referred to all executions which had been docketed with the sheriff, including Flagship’s two prior executions.

Notwithstanding the published notification that the property would be subject to cash bids, at the sale held on September 11, 1975, Carantzas successfully bid $31,262.23; of that amount $30,000.00 was in the form of a credit against the outstanding $90,-566.62 judgment, the remainder of the bid was in cash to cover the sheriffs costs. The attorney for Flagship appeared at the sale but made no bid. Neither did he then voice any objection to the method of sale, although he had done so prior to the sale and had advised the sheriff’s deputy the sale should be held on each execution separately. Since Flagship’s two executions remained outstanding, Flagship later gave the sheriff instructions for levy upon the same property which Carantzas had purchased at the execution sale. The property was still in the possession of the sheriff and had not been surrendered to Carantzas. Carantzas then filed a motion in the Circuit Court to dismiss the levy on the ground the property had already been sold, resulting in the extinguishment of Flagship’s lien on the property.

Flagship initially argues that the lower court lacked jurisdiction over it because Carantzas instituted no separate proceeding by filing a complaint seeking to determine the validity of the respective liens. Nevertheless the court still had jurisdiction over the res, the goods in custody of the sheriff, and could properly enter a judgment confirming the sale. Jurisdiction of a court over proceedings in rem is acquired by the filing of a complaint with exhibits having reference to the property which may be subjected to the processes of the court. Gribbel v. Henderson, 151 Fla. 712,10 So.2d 734 (1942). Such an action requires seizure or its equivalent of property within the jurisdiction of the court and the giving of reasonable and fair notice of the action against described property and of the date and place of the hearing. Here Flagship had constructive notice of the execution sale, was advised prior to the sale that the sale would be held as to all three executions at the same time and not separately.

The court properly dismissed Flagship’s levy upon property which at the time of the attempted levy was within the custody of the sheriff. Money or property which has come into the hands of an officer of the court by virtue of legal process is regarded as in the custody of the law and once levied upon remains in such custody and is not liable to be taken by another execution. Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936); Young v. Stoutamire, 131 Fla. 535, 179 So. 797 (1938).

Nevertheless the court erred in ratifying the bill of sale to Carantzas. The method in which the execution sale was conducted was clearly irregular. As to personal property, an execution issued on a judgment operates as a lien on the property of the defendant in execution from the time such writ is delivered to the sheriff. Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592 (1916). Moreover priority between the lien of an execution and other claims on the same property is generally governed by considerations as to priority in time, McKeown v. Coogler, 18 Fla. 866 (1882), and if two writs of execution are delivered to the officer, he should execute them in the order in which they are delivered. 13 Fla.Jur., Executions, section 38 (1957).

Love, Sheriff v. Williams, 4 Fla. 126 (1851), held if an officer levies and sells personal property by virtue of a junior writ, the proceeds of the sale may be returned to the junior creditor who was the successful bidder at the sale and may not be attached by the senior creditor. In Love, Williams, the senior creditor, obtained a judgment against a judgment debtor in 1842, and in 1844 a writ of execution was delivered to the sheriff. On November 12, 1849, the courthouse was destroyed by fire and with it all the records of the sheriff’s office. On November 14, 1849, Richard H. Wilson, the junior creditor, recovered judgment against the same judgment debtor and later delivered a writ of execution to the sheriff. The sheriff levied on certain property of the judgment debtor, and it was later sold to Wilson. Following the sale, Williams obtained a rule for the sheriff to show cause why he should not pay over to him the* amount received from the execution sale. The sheriff responded he did not know whether any execution ever came into his hands from Williams, but that if it did, it was destroyed in the fire.

The Florida Supreme Court stated the rule was that as between the two different plaintiffs, if two writs of execution are delivered to the sheriff on different days, he ought to execute that which was first delivered, but if he levies and sells by virtue of the writ last delivered, the property of the goods is bound by the sale and the senior lienor cannot seize them. The reason given for the rule is “that sales made by the sheriff ought not to be defeated; for if they are, no man will buy goods levied upon a writ of execution.” 4 Fla. at 135. An additional reason for the court’s decision was that a distinction must be made between the lien of a judgment on, land and the lien of an execution upon personalty. In the first case the lien is a matter of record and the other is not, except from the time of delivery to the sheriff. The court continued:

“The purchaser of personalty cannot suppose that the officer has committed any impropriety in the performance of his duty, and even if he desired to examine into the propriety of his action, he has not the means of doing so; while on the other hand, if land is offered for sale by the sheriff, the lien being by judgment, it is a matter of record, and the purchaser can, by examination of the records, satisfy himself whether there are any other and superior prior liens upon,the property.” 4 Fla. at 136.

It concluded that the senior creditor had a right of action only against the sheriff for his breach of duty in not executing the first writ which was delivered to him.

It should be observed that there are several distinctions between the facts here and those in Love, Sheriff v. Williams, supra. The court’s opinion was concerned with the validity of execution sales of personal property, particularly as to sales made to bona fide purchasers for value. Here, Carantzas was placed upon notice that the property was to be sold subject to all prior liens,* and the notice specifically advised him the numbers of Flagship’s two prior writs of execution. He could hardly claim, as could the junior execution creditor in Love, he was without notice of the senior writs of execution. Additionally, in 1866, 15 years after Love was decided, Ch. 1553, Sections 1-3, Laws of Florida (1866), now Section 30.17, Florida Statutes (1975), was enacted, mandating the sheriff to keep an execution docket. As a result a prospective purchaser need only examine the sheriff’s docket book to determine if any prior execution liens exist. Since both Carantzas and the sheriff were on notice of Flagship’s prior liens, unlike the situation in Love, the facts here are more analogous to those in Million v. Commonwealth, 40 Ky. (1 B. Mon.) 310 (1841), where it was held that a prior claim must first be paid from the proceeds of an execution sale, even though the sale is made upon a writ subsequent to the prior claimant’s, if the prior claim was brought to the notice of the officer at the time of the sale.

As a general rule an officer at an execution sale must sell the property bid for cash and has no right to sell for credit, with the exception of a sale made to the judgment creditor who may credit the amount of his debt on the execution if the costs of the sale are paid. 33 C.J.S. Executions § 217 (1942). We do not perceive, however, that one holding a junior execution writ may be permitted to make a credit bid when the notice of the sale placed the junior lienholder on notice of the senior creditor’s prior executions and also stated that the property would be sold, subject to all prior liens, to the highest and best bidder for cash. If Carantzas were allowed to make a credit bid under such circumstances, a creditor having the largest judgment might always prevail regardless of the priority of other liens. Consequently there would be no point in establishing priority in the delivery of writs of execution to the sheriff if all creditors could simply assemble at an execution sale and offer credit bids in an amount equal to the amount recovered by their judgments.

The highest bidder at an execution sale acquires no title to the thing purchased until payment of the purchase price. 33 C.J.S. Executions § 289 (1942), and if a sheriff gives a bill of sale to the purchaser without receiving payment of the purchase money, the bill of sale may be set aside. 30 Am.Jur.2d, Executions, section 382 (1967). If a sale is invalid, courts have the power to vacate a sale made under a writ of execution. Lawyers Co-Op. Publishing Co. v. Bennett, 34 Fla. 302, 16 So. 185 (1894). Because of the invalidity Carantzas acquired only the interest of a judgment debt- or whose interest was subject to Flagship’s prior liens. Wildwood Crate and Ice Company v. Citizens Bank, 98 Fla. 186, 123 So. 699 (1929); Bradley v. Forbs, 116 Fla. 350, 156 So. 716 (1934).

Carantzas states in his brief that the property sold to him has since been sold to other persons, although this is not established in the record. If this is so, Flagship has, as indicated in Love, Sheriff v. Williams, supra, a possible action against the sheriff for not executing that writ which was first delivered to him. Section 30.30(2), Florida Statutes (1975), prohibiting the sheriff from damages for wrongful levy, would not apply to such action since here the levy was correctly made, but not the execution sale.

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

RAWLS, Acting C. J., and SMITH, J., concur.


author: RYDER, Judge.

text:
    R. B. REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 76-328.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Stephen O. Rushing, Asst. Public Defender, Tampa, and William Murphy, Legal Intern, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant R. B. Reynolds was charged with robbery. At trial, the court announced that it intended to instruct the jury on robbery and petit larceny. Defense counsel requested instructions on assault with intent to commit robbery and attempted robbery. The court denied this request and gave the instructions as announced. Thereafter, the jury found appellant guilty as charged.

Two days after trial the court held a sentencing hearing. Having pronounced sentence on the robbery, the court revoked appellant’s term of probation for another offense on the basis of the jury’s verdict in the robbery trial.

On this appeal, appellant questions the validity of both the conviction and the order revoking probation.

Attempted robbery and assault with intent to commit robbery were both lesser included offenses of robbery. See Brown v. State, 206 So.2d 377 (Fla.1968). Since this was the case, the court should have instructed the jury on these crimes, and its failure to do so cannot be considered harmless. Lomax v. State, 345 So.2d 719 (Fla. 1977).

We must also reverse the revocation order. In State v. Spratling, 336 So.2d 361 (Fla.1976), the supreme court said, “In the absence of stipulation or consent, the trial of the criminal case should not be construed as a probation revocation hearing but can be treated as such upon stipulation or consent made before or after the trial.” Spra-tling, supra at 364. The record in the present case is devoid of a stipulation by appellant to the court substituting the criminal trial for a revocation hearing. Because of this, the trial court should have held a hearing on the issue of whether appellant’s probation was to be revoked. See Hooks v. State, 207 So.2d 459 (Fla. 2d DCA 1968).

We reverse appellant’s conviction on the charge of robbery and remand that case for a new trial. We also reverse the order revoking appellant’s probation and remand that case for proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: OTT, Judge.

text:
    Antonio HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1920.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.

      Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Two issues were presented. First, whether the state’s oral motion to strike a material fact allegation in the defendant/appellant’s motion to dismiss was a proper traverse under Fla.R.Crim.P. 3.190(d); second, whether the court properly relied upon certain evidence to establish a prior conviction of appellant for purposes of sentencing the appellant as a second offender pursuant to Section 812.021(3), Florida Statutes. In view of our disposition hereof, we need not answer the first question. We answer the second question in the negative and reverse.

The appellant was charged by information with grand larceny. About five days before the scheduled trial date the parties appeared before the court on a previous motion to suppress (later waived). At this time appellant filed and served the state with a written motion to dismiss pursuant to Fla.R.Crim.P. 3.190 apparently rather untimely filed but justified by appellant due to a change of plea by a co-defendant only two days earlier. This motion to dismiss was taken up at this hearing without objection by either of the parties. Paragraph 5 of the motion to dismiss alleged:

That at no time did the [appellant] . have knowledge of the illegal acts perpetrated by his Co-Defendant

The state attorney orally moved to strike this allegation and in various ways indicated disagreement with various facts in the motion. The court thereupon denied appellant’s motion to dismiss pursuant to Fla.R.Crim.P. 3.190(d), loosely referring to and obviously treating the state’s motion to strike as a “traverse” — again without any indication in the record of an objection by the appellant. The appellant is in no position to complain because in view of the manner in which the motion was presented, the state had no other way to deny the facts.

After a jury trial, appellant was found guilty of the lesser included offense of petit larceny. At a sentencing hearing, in the context of a discussion of the verification of appellant’s prior convictions, the court noted that a letter received by the court from the Florida Parole & Probation Commission established that appellant had committed petit larceny before and would allow the court to sentence appellant pursuant to the enhanced punishment provision of Section 812.021(3), Florida Statutes.

With reference to the first issue, appellant argues for the first time that the state never filed a proper traverse pursuant to the requirements of Fla.R.Crim.P. 3.190(d). As previously noted we do not find it necessary to address this question.

With reference to the second issue the trial court relied upon information of prior conviction contained in a letter from the Florida Parole & Probation Commission office in Dade City, Florida. This letter stated that the information was submitted on “Antonio Harris or Sylvester Antonio Harris” and was “derived from Tampa and Inverness Parole & Probation offices as well as pertinent teletype checks.” The state — although apparently given additional time by the court — was unable to come up with any verification other than the certified copy of a judgment of conviction of a “Robert Knight also known as Sylvester Knight.” The record is devoid of any admissions, stipulations, fingerprint records or other appropriate proof of identity. While not particularly specific, objection was made by the appellant to the consideration of such evidence and the failure of the state to submit competent evidence of identity.

Although the supreme court in its recent pronouncement in Moore v. State, 343 So.2d 601 (Fla.1977) has relaxed the standards surrounding proof of identity in enhanced punishment situations, we hold that the documentation relied upon in the instant case was far too casual. In Moore, the court held that the former strictures of the recidivist statute (Section 775.11, Florida Statutes (1973), repealed effective October 1, 1975) “do not apply when the fact of the recidivist’s prior conviction of a felony appears to the sentencing judge before or at the time of the adjudication and sentence for the subsequent offense.” 343 So.2d at 602.' What documentation is needed to show the “fact of the recidivist’s prior conviction” was not spelled out by the supreme court. However, in the face of an objection, we interpret that decision to require more than the Parole & Probation Commission letter and judgment relied upon herein.

The judgment of conviction is therefore affirmed, but the sentence is vacated and the case remanded for further proceedings thereon and such proper sentence as may be imposed thereafter.

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

      . The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. . . A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.


author: PER CURIAM.

text:
    Wilton BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 77-169.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to properly file a motion under Fla.R. Crim.P. 3.850 to vacate his sentence on the grounds that his sentence was enhanced by convictions in cases in which appellant was denied his right to counsel.

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


text:
    STATE of Florida, Appellant, v. Patricia GARRETT, Appellee.
    No. 77-315.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant,
    Daniel J. Grieco, St. Petersburg, for ap-pellee.
   PER CURIAM.

We treat this appeal as a petition for certiorari on the authority of State v. Wilcox, 351 So.2d 89 (Fla.2d DCA, 1977), and the petition for certiorari is hereby denied.

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


text:
    Joe Nathan BREWSTER, Appellant, v. STATE of Florida, Appellee,
    No. 77-508.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation supervisor filed an affidavit charging appellant with violating conditions (a) and (h) of his probation. At the hearing on the affidavit, the trial court found that appellant had violated condition (a) of his probation and revoked the probation. We affirm that revocation, but we agree with appellant that there are imperfections in the order revoking probation and in the subsequent sentence.

In the first place, owing to an apparent clerical error, the order revoking probation recites that appellant violated not only condition (a) but also condition (h). Since at the hearing the court only found that appellant had violated condition (a), it should now remove any reference to condition (h) from its order.

The present sentence fails to specify the amount of credit time as Section 921.161(1), Florida Statutes (1975) requires. Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra.

We remand the case for the court to make the corrections which this opinion mandates. Appellant need not be present at that time.

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


text:
    Susan Mary GEBHARDT, Appellant, v. Rocco SMITH and Carl Shepard, Appellees.
    No. 77-861.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Richard G. Smith and Benjamin P. Reese, II of Stinnett, Surfus & Martin, Sarasota, for appellant.
    Patrick J. Murphy of Crabtree Butler, Syprett & Meshad, Sarasota, for appellee Carl Shepard.
   PER CURIAM.

Upon consideration of the briefs, record, and oral arguments we hold that the trial court erred in granting appellees/defend-ants’ motion to dismiss the complaint filed by appellant/plaintiff. The complaint does contain sufficient allegations to withstand attack by a motion to dismiss for failure to state a cause of action. Fla.R.Civ.P. 1.110(b).

REVERSED.

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


text:
    Richard NICKLES, Appellant, v. STATE of Florida, Appellee.
    No. 77-866.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack 0. Johnson, Public Defender, and Victoria J. Powell, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). The appellant does not have to be present at resentencing.

HOBSON, A. C. J., and RYDER and DANAHY, JJ., concur.


text:
    Rose BRADWELL, a/k/a Rose Jones, Appellant, v. STATE of Florida, Appellee.
    No. 77-954.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

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


text:
    Willie Lee MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-999.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order of the trial court revoking appellant’s probation. See Thomas v. State, 317 So.2d 450 (Fla.3d DCA 1975). However, we agree with appellant that there are imperfections in his sentence. The present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. We remand the case for correction of sentence, and appellant need not be present at that time.

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


text:
    Doyle James HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1080.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

By information appellant Harris was charged with possession of greater than five grams of marijuana. Appellant filed a motion to suppress the marijuana which was denied. He thereafter entered a plea of no contest to the charges, specifically reserving his right to appeal the denial of his motion to suppress. Appellant was fined and placed on probation. He argues that the trial court erred in denying his motion to suppress. We agree and reverse.

At the hearing on the motion to suppress, the arresting officer testified that he observed appellant and a companion in the area of a ramp to an interstate highway. As a vehicle approached, the officer suspected they might be about to hitchhike. Appellant was seen carrying a brown paper sack. As the officer approached, appellant was observed putting a rolled up plastic bag in his pocket and his companion left in a hurried manner. Suspecting that the plastic bag contained marijuana, the officer got out of his patrol car, pulled the plastic bag from appellant’s pocket, and arrested him for possession of marijuana. At this point, the officer had no suspicion appellant had any weapon. The officer did not see what the plastic bag contained until he removed it. Prior to placing appellant in the patrol car, but after he was arrested, the officer opened the brown paper sack because he felt it could possibly contain either a weapon or more contraband. The sack contained more marijuana. After appellant was taken to the police station, he voluntarily gave the officer another bag of marijuana. The total weight of all the marijuana was ninety-three grams.

The initial search of appellant’s person was not incident to a lawful arrest, because at the time of the search, appellant had not been arrested. Nor did the officer have probable cause to arrest appellant at the time of the search under the rationale espoused by this court in Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). The fact that the officer knew that marijuana was commonly carried in plastic bags gave rise to, at most, a mere suspicion that the bag appellant was seen putting into his pocket contained marijuana.

Although the circumstances arguably supported a temporary detention of appellant allowed by Section 901.151, Florida Statutes (1975), the officer’s actions thereafter were not constitutionally permissible. He did not make any further investigation nor did he attempt to ascertain appellant’s identity. Instead, he chose to immediately grab the bag from appellant’s pocket. At the hearing, the officer admitted that the act of taking the plastic bag from appellant’s person was not a protective search for weapons. At that point in time no facts constituting probable cause to arrest appellant for possession of marijuana existed.

Thus, the marijuana found in appellant’s pocket as a result of the illegal search should be suppressed. The marijuana found in the brown paper sack and the marijuana received at the police station, obtained as a result of an illegal arrest, is also inadmissible. See State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).

The judgment and sentence are reversed and the case is remanded for further proceedings consistent with this opinion.

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


author: SMITH, Judge.

text:
    Alvin Willie FULLARD, Appellant, v. STATE of Florida, Appellee.
    No. FF-351.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant pleaded nolo contendere to a charge of burglary of a structure, reserving the right to appeal the trial court’s denial of his motion to suppress inculpatory statements. He contends the statements were obtained through a promise that he would not be prosecuted. We agree.

Appellant admitted his guilt after a detective investigating the theft of a lawn mower told appellant “if I get the lawn mower back there won’t be any problem.” This statement at least implied that if appellant confessed he would not be charged. The confession is therefore inadmissible. Frazier v. State, 107 So.2d 16 (Fla.1958); Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); M. D. B. v. State, 311 So.2d 399 (Fla. 4th DCA 1974), cert. den., 321 So.2d 555 (Fla.1975); State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974).

This case is significantly different from Miles v. State, 303 So.2d 86 (Fla. 1st DCA 1974). In Miles, the defendant was convicted on a jury verdict which the court found was supported by sufficient evidence other than the confession. Here appellant pleaded nolo contendere, and while other evidence adduced at the suppression hearing might support a jury verdict of guilty, it would also support a jury verdict of not guilty.

REVERSED and REMANDED.

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


text:
    Rose DEEB, a/k/a Rose Deeb Kitchen, Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. GG-14.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1977.

      Wilfred C. Vara and E. C. Deeno Kitchen and C. Everett Boyd of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    F. E. Steinmeyer, III, Alan E. DeSerio, Tallahassee, for appellee.
   PER CURIAM.

Although we do not find the trial giving rise to the final judgment here appealed to be free of error, the record reveals that (apparently as trial strategy by experienced attorneys which we do not criticize) the errors were not preserved for review here. Accordingly, the judgment appealed is affirmed and the appellant’s motion for attorney’s fees incident to this appeal is denied.

AFFIRMED.

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


text:
    TALLAHASSEE MALL, INC., a Florida Corporation, Appellant, v. Robert J. ROGERS and Iva Lou Rogers, Appellees.
    No. FF-282.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1977.
    C. Gary Williams and M. Julian Proctor, Jr., of Ausley, McMullen, McGehee, Caroth-ers & Proctor, Tallahassee, for appellant.
    N. Sanders Sauls of Pennington, Wilkinson & Sauls, Tallahassee, for appellees.
   PER CURIAM.

First, we find and hold that appel-lees, who were plaintiffs in the trial court, had standing to bring their action there.

Second, recognizing that the lease which is the subject matter of this litigation was breached when appellees’ assignor assigned same to appellees without the prior written consent of appellant, we nevertheless hold, in accordance with the cases cited in the briefs, that such breach neither rendered the assignment invalid nor terminated the lease; therefore, we agree with the trial court that the primary issue to be resolved was whether appellant unreasonably withheld consent to the assignment. In that regard we find that there was sufficient competent evidence-before the trial court, apparently believed, to have sustained a finding that appellant did in fact consent to the assignment, though not in writing; that appellant waived by its actions the requirement of written consent; and that in any event appellant’s consent was unreasonably withheld.

No useful purpose will be accomplished by recitation here of the evidence upon which we base the foregoing findings. That evidence is meticulously recounted in the briefs of the parties with citations to appropriate portions of the record on appeal. It was also recited during oral argument before the court.

AFFIRMED.

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


text:
    William Ronald HILL, Appellant, v. STATE of Florida, Appellee.
    No. CC-484.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1977.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   ON PETITION FOR REHEARING GRANTED

PER CURIAM.

On petition for rehearing, appellant’s sentence is vacated, and this cause is remanded to the trial court for an appropriate sentence in accordance with the opinion of the Supreme Court filed August 31, 1977, in Earnest v. State, 851 So.2d 957.

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


text:
    Arthur E. LEONARD, Jr., Petitioner, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, and State Retirement Commission, Respondent.
    No. FF-69.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1977.
    Edward S. Jaffry, of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for petitioner.

      Stephen S. Mathues, Tallahassee, for respondent.
   PER CURIAM.

The Commission’s order terminating Leonard’s disability benefits apparently relied upon Fla.Admin.Code Rule 22B-4.10G. However, given the statutory definition of “employer” in Section 121.021(10), Florida Statutes (Supp.1976), we do not find the rule applicable to one who is an employer in the private sector. The Retirement Commission must instead construe Section 121.-091(4)(b), defining total and permanent disability as it applies to petitioner. See also Amico v. Division of Retirement, Department of Administration et al., 352 So.2d 556 (Fla. 1st DCA 1977).

Finding there has been an erroneous interpretation of law, we remand for further action under a correct interpretation of law. Section 120.68(9)(b).

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


author: MELVIN, Judge.

text:
    STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. Alex L. GILMOUR, Respondent.
    No. FF-279.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1977.
    J. D. Boone Kuersteiner and William P. White, Jr., Tallahassee, for petitioner.
    C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondent.
   MELVIN, Judge.

The Department of Environmental Regulation brings its Petition for Review of the order of the Career Service Commission directing reinstatement of a former employee, Alex L. Gilmour.

Gilmour began his employment with the State of Florida, Department of Pollution Control, on September 9, 1974, such department being the predecessor to the State of Florida, Department of Environmental Regulation. He was employed as an Engineer III in the Jacksonville office. Between the time of his employment and until he was dismissed June 23,1976, he had been absent without authorized leave and had been tardy on numerous occasions. Letters of admonition and warning had been addressed to him, warning him of the consequences of a continuation of such absences and tardiness, all of which the employee disregarded. Thereafter, on the date indicated, the Department dismissed the employee because of his unauthorized absence of eight hours on June 17, 1976. In due season, Gilmour filed his notice of appeal with the State Personnel Director, and the Department filed motions to abate and to dismiss for alleged lack of jurisdiction. We do not consider that any of the technical questions presented by the Department merit consideration here, and we will move to the subject of this litigation that is dis-positive of the controversy. The Commission, by its order of April 15, 1977, found, among other things, that Gilmour had been dismissed for “drinking problems” and was therefore entitled to the privileges afforded by Section 22A-7.10(g)(3) (renumbered Section 22A-7.10(7)(c)), Florida Administrative Code, relating to employees who are dismissed for habitual drunkenness; that the Department had not complied with said section, and that the dismissal charges of unauthorized absenteeism and tardiness were unsubstantiated by the facts. The Commission ordered reinstatement of Gilmour with full back pay and credit for all benefits, including sick leave and annual leave. The Commission retained jurisdiction to award reasonable attorney fees to Gilmour.

We are urged that the Governor and Cabinet have adopted, as a policy of this State, a policy that throws a mantle of protection around the shoulders of those who imbibe excessively and would require that they be maintained on the public payrolls even though they do not take any affirmative action to seek aid for their alleged drinking problems. We do not so construe the declaration of the Governor and Cabinet relating to this subject. One who has a drinking problem has a duty to call it to the attention of the employing agency. He also has the duty to be available to follow professional advice and to take such treatment as may be prescribed. He cannot take the attitude of desiring to drink rather than work and then let the burden fall on the Department to seek him out to learn that he has a drinking problem. This employee, when employed, advised that he had a previous drinking problem but that the matter was completely under control. The Department had the right to rely on that statement. With reference to the times when he was absent from work, he related only one absence to his having consumed too much alcohol. Based upon this record, we find that there was competent and substantial evidence supporting the dismissal action taken by the employing agency and that the State of Florida, Career Service Commission, exceeded its authority in entering the order on review. State, Dept. of Adm., Office of Adm. Serv. v. Hunter, 323 So.2d 24 (Fla. 1st DCA 1976). To paraphrase the common sense doctrine proclaimed in the Colony of Plymouth, “No work, no job, no pay”.

The Petition for Review is granted and the Order of the Career Service Commission is quashed.

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


text:
    Jon Lester SMITH, Appellant, v. STATE of Florida, Appellee.
    No. GG-425.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1977.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was sentenced to five years for burglary and 10 years to run concurrently for aggravated battery. In addition, the sentence provided that appellant pay costs of $2 or serve one day of confinement to run concurrently with the sentence. Appellant having been found insolvent, the requirement that he pay costs or serve one day of confinement (even though concurrently) was error. Cox v. State, 334 So.2d 568 (Fla.1976), and Mack v. State, 305 So.2d 264 (Fla. 3 DCA 1974). The judgment and sentence are affirmed except for the assessment of costs and the one day sentence in lieu thereof and the cause is remanded with directions to delete same from the sentence. Such modification may be made without pronouncement in open court.

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


text:
    Carl McQUAY, Appellant, v. STATE of Florida, Appellee.
    No. DD-369.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.

      Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect and Michael H. Davidson, Asst. Attys. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant seeks reversal of a judgment and sentence imposed upon him for the crime of robbery by the use of a firearm. The judgment and sentence were based upon a guilty verdict rendered by a jury.

The defendant presents four points for review on appeal. We will consider them in the order in which they are presented: 1) The alleged error of the trial court in not granting a new trial when it was discovered, prior to the taking of testimony, that one of the trial jurors was acquainted with an associate of the defendant’s attorney; 2) whether the jury had improperly received instructions from the bailiff that, as a matter of law, were prejudicial to the defendant’s right to a fair trial; 3) whether the court erred in sustaining objections by the State to defendant’s use of depositions in an effort to prove prior inconsistent statements on the part of state witnesses; and 4) whether there is ample evidence to sustain the verdict of the jury.

The record reveals that, after the jury had been empaneled and sworn, there was a recess for the evening following which the court convened and the jury was properly seated. The record then reveals as follows:

“JUROR: Yesterday a question was asked if we knew any of Mr. Ireland’s associates and I really didn’t think I did. But two years ago my husband’s attorney for our divorce was one of his associates. I didn’t know if that mattered.
“THE COURT: Is there anything in that that would effect [sic] your judgment in this case one way or the other?
“JUROR: No.”

The record reveals that counsel for the defendant did not interpose any objection, did not move for a mistrial, and did not move that the juror stand aside. There were six jurors and one alternate juror empaneled. If counsel desired to complain with reference to this juror and the possibility of a prejudicial attitude on her part, the obligation was with him to do so at that time so the trial judge could rule whether a challenge was appropriate either peremptorily or for cause. In the event of a favorable ruling the juror in question would be excused, the alternate juror seated and the trial would proceed. To complain post ver-diet, by the avenue of a motion for a new trial, comes entirely too late to merit appellate review. There is nothing in the record that would give the slightest indication that the juror’s acquaintance with defense counsel’s associate in any way affected her judgment in the rendition of the verdict in this cause. The mere fact that a juror is acquainted with either counsel in a case does not per se disqualify such juror. See Roberson v. United States, 249 F.2d 737 (5th Cir. 1957), cert. den. 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715 (1958), and Newton v. State, 178 So.2d 341 (Fla. 2d DCA 1965).

As to the alleged error relating to the communication by the bailiff to the jury, when this matter first came to the attention of this court and upon determining that the record was insufficient for a decision here to be reached, the cause was remanded to the trial court with directions to determine in an evidentiary hearing what, if anything, occurred by way of communication on the part of the bailiff to the jury and whether, if any such communication did take place, the same resulted in a denial of the defendant’s right to a fair trial. In obedience to that order, the trial court conducted an evidentiary hearing, and, upon stipulation of counsel, the inquiry was limited to the taking of the testimony of the foreman of the jury. Upon conclusion of the evidentiary hearing, the court entered an order that contains the following:

“A. The Court had instructed the jury that its verdict must be unanimous, but no instruction was given having to do with the consequence of their inability to unanimously agree upon a verdict. Being concerned with this alternative the jury summonsed [sic] the bailiff shortly after its deliberations began (at which time it stood five to one for conviction) and asked the bailiff what would happen if they were unable to unanimously agree. The substance of his response was that a mistrial would result. No further exchange occurred between the bailiff and the jury.”

The court then continued with findings of fact and conclusions of law as follows:

“B. The statement made by the bailiff did not affect the verdict of the jury.
“C. The statement did not infringe upon any right of the defendant.
“D. The defendant was in no wise prejudiced by the statement.”

Thereupon, the court ordered and adjudged that the bailiff’s statement did not result in the denial of the defendant’s right to a fair trial.

It was reversible error for the bailiff to reply to the jury’s question concerning the effect of the failure of the jury to agree upon a verdict, and to advise the jury of their duty to deliberate further. The bailiff should have immediately advised the judge that the jury desired to ask of the court such question whereupon it would be proper for the court to cause the jury to be seated in the jury box and to ask the question in open court.

During the evidentiary hearing, the trial judge made a most diligent inquiry of the foreman to determine if the communication on the part of the bailiff had any effect upon the rendition of the verdict, and based upon the totality of the testimony of the bailiff, the court reached the conclusions as we have set forth. With those conclusions, this court cannot agree. The evidentiary hearing reveals that the jury was quite undecided as to whether or not it could bring a verdict that was based on less than a unanimous vote of the jury, and a discussion of that question led to their having asked the bailiff for information. The exact manner in which the question to the bailiff was phrased or the exact manner in which the bailiff answered the question, of course, was not within the memory of the foreman. In substance, the foreman related to the judge that what the bailiff stated did not have any effect upon his deliberations, and the court further inquired:

“Q. Did it affect, as far as you know, the deliberations of the jury?
“A. That’s a hard question to answer. That’s a very hard question to answer.
“Q. Well, I can understand that you would not be in a position to know what factors the other members of the jury may or may not have taken into consideration, so let me narrow it a little bit and ask this, did it make any difference to you, to your decisions, as to whether or not the jury was or was not—
“A. No, it didn’t make any difference to me. Can I continue?
“Q. Yes sir, certainly.
“A. I don’t know if I should even, I don’t know if this is part of the question, but the jury at that time they didn’t want to come out, most of the jury members felt that we should come out with a six/zero decision either way and sit in the jury room until that time and when the bailiff came in and told us that we could come with less than a six/zero decision, the jurors as a whole still felt that we should deliberate longer and see if we could iron out our differences and come out with an adequate decision.
“Q. All right, sir. Going one step further, Mr. Rosenblatt, you told us of the question asked, can you tell us what answer was given by the bailiff?
“A. Once again this is not exact words.
“Q. I understand, sir.
“A. This is the way I took it and I think the jury took it. He said, yes, we could come out with less than — we could come out with a hung jury, it would be tried again and as a final clause he said, why don’t you take your time and see if you can come up with a, you know, just take your time.and see what happens, don’t come out so fast. Something to the effect that we had only been in there a short time and see if we could come up with an adequate decision.”

The judge inquired of the foreman just how it came about that the question was asked of the bailiff. The foreman replied that, immediately upon retiring to consider the jury’s verdict, the ballot was taken and it was a five/one vote and there was a discussion for some 30 or 40 minutes thereafter, among the various jurors:

“ . . [T]he one person who was against it was not changing and there was a lot of debate, so someone brought up the question, I believe it was the person who wasn’t changing, brought up the question — it was brought up that we had to come out with a decision and the person who wasn’t changing said, you don’t have to come out with a decision, if we come out to a five/one vote then that’s what we come out with. So people thought you hadn’t said that in your final remarks to the jury before we went in, so that’s why we asked the question, they thought you said we had to come out with a decision either way.”

The court then inquired:

“Q. From having presided over the deliberations, Mr. Rosenblatt, did you feel that the bailiff’s response to your question had any effect whatever upon the ultimate verdict?
“A. No.
“Q. Is it your feeling that they jury would have reached that verdict had the question not ever been put to the bailiff and the answer given?
“A. Yes.
“Q. All right.
“A. Can I continue.
“Q. Certainly, sir.
“A. The bailiff’s answer made us aware of what our possibilities were, it didn’t at all influence any of our decisions, he just made us aware of all the possibilities and his clause at the end just made us aware of how long we had been in there and it didn’t at all influence our decisions.”

The judge then inquired of the foreman if the members of the jury understood that if they could not agree upon a unanimous verdict of either guilty or not guilty, there would be a retrial of the case. The foreman responded that they did not at first understand that situation. Then, the record reveals:

“THE COURT: I see. Did they give any thought as far as you know as to what would happen in the event they couldn’t reach a unanimous verdict?
“A. No, because soon after that point was brought up was when the question was asked.
“Q. I see and it’s your feeling that whatever remarks were exchanged between the jury and the bailiff didn’t in anywise affect the verdict of the jury?
“A. I don’t think so.”

The court then inquired of counsel for the State and the defendant if they desired any further questions to be asked, and they each replied in the negative. It is, therefore, apparent that the trial judge made every effort to determine if the bailiffs communications adversely affected the jury, and the foreman assured him that such communications did not. We cannot, however, dismiss as harmless error the action of the bailiff in advising the jury as to the legal effect of a verdict not unanimous, in giving to the jury what was the equivalent of a layman’s understanding of the charge given by the court to a jury that is unable to agree on a verdict, or in charging them their responsibility to take their time and to deliberate in an effort to reach a verdict. See Bell v. State, 311 So.2d 179, at 181 (Fla. 1st DCA 1975); and Thomas v. State, 348 So.2d 634, at 635 (Fla. 3d DCA 1977). The State’s reliance upon Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974), is ill-placed. The communication by the bailiff with the jury in that case, although branded as improper, was found to be on a subject that was helpful to the defendant.

Because this matter may receive further consideration at the trial level, we will discuss the remaining question with reference to the use of depositions to establish a prior inconsistent statement on the part of two state witnesses and the court’s sustaining the state’s objections.

The record reveals that counsel, as to each witness, had begun referring the witness to a deposition or a portion of a record at a previous trial, and the witness was asked if certain questions had been asked and certain answers given and if those matters were properly dealt with by the response of the witness. The record then reflects that, when counsel began to read what is alleged to be a question asked of the witness, the State objected and the court sustained the objection. In each of these instances, the record is then silent as to what question would have been propounded to the witness and what his alleged previous answer would have been. Counsel was content not to proffer that material into this record and, therefore, the matters which are extensively quoted in counsel’s brief may not be considered, because the same reflects material not properly before this court.

In the present posture of this case it would not be appropriate to discuss the question as to the sufficiency of the evidence to support the verdicts.

REVERSED with directions to grant a new trial.

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


text:
    Robin Allnut SMITH, Appellant, v. VOLKSWAGEN INSURANCE COMPANY and James R. Smith, Appellees.
    No. EE-281.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.

      Terrill J. LaRue of Stern & LaRue, Day-tona Beach, for appellant.
    William A. Parsons of Gosney, Cameron & Parsons, John W. Tanner, Daytona Beach, for appellees.
   MELVIN, Judge.

Appellant-plaintiff brings for review the final judgment rendered December 7, 1976, in favor of defendants in her cause of action against Volkswagen Insurance Company and James R. Smith. The facts leading up to the controversy began to unfold on November 20, 1971, when the plaintiff was riding as a passenger in a vehicle operated by James R. Smith and insured by Volkswagen Insurance Company. The automobile was involved in an accident, and the plaintiff suffered an injury. Thereafter, Volkswagen Insurance Company paid benefits to Robin Allnut Smith until sometime in 1973, when it learned that Robin Allnut Smith and James R. Smith had been married in February of 1973. Upon such information being obtained, the Smiths were informed that no further benefits would be paid since the intervening marriage had relieved James R. Smith and his carrier from liability. Thereafter, in December, 1974, in the Circuit Court of Flagler County, a final judgment dissolving the marriage of Robin Allnut Smith and James R. Smith was entered. In January, 1975, Robin Allnut Smith filed her complaint against her former husband and his insurance carrier, seeking damages for the injury received as a result of the 1971 automobile accident. See Gaston v. Pittman, 224 So.2d 326 (Fla. 1969). The insurance carrier and James R. Smith raised as an affirmative defense in-terspousal immunity alleging that a fraudulent divorce had been obtained. The defense was framed in this manner:

“6. At all times material hereto, Plaintiff, Robin Allnut Smith and Defendant, James R. Smith were and are husband and wife. As a result of this relationship, the Plaintiff is wholly barred from recovery from James R. Smith and/or Volkswagen Insurance Company on the basis of interspousal immunity.”

The trial judge held that the interspousal immunity theory was applicable and entered final judgment against plaintiff.

It is the position of the defendants that the testimony before the court in support of the defense of interspousal immunity reveals that the marriage of the parties was not irretrievably broken and further, that the parties obtained their divorce because that was the only way a suit could be maintained against the insurance company.

We hold that the interspousal immunity defense is wholly inapplicable. The Circuit Court in Flagler County had jurisdiction of the parties and the subject matter in the dissolution suit. Jurisdictional basis for such a proceeding is an allegation of residence in Florida for the required period of time, and that the marriage of the parties is irretrievably broken. Based upon the testimony presented, the court adjudged that the marriage between the parties was irretrievably broken and the parties’ marriage was thereby dissolved. This final judgment is not subject to collateral attack on an interspousal immunity theory by a party thereto and/or his insurance carrier. In MacFadden v. Muckerman, 116 So.2d 448, at 449 (Fla.3d DCA 1959), the Court held:

“ . . . The rule is. and has been that those issues that could or have been litigated in the proceedings themselves are not sufficient grounds to collaterally attack a decree which otherwise appears to be valid on its face. . . . ”

The.final judgment appealed from is REVERSED for further proceedings consistent with this opinion.

ERVIN, Acting C. J., and NIMMONS, RALPH W., Jr., Associate Judge, concur.


author: PER CURIAM. SUMMERS, J.,

text:
    STATE of Louisiana v. Michael MANSO, a/k/a Patrick Fusillo, Michael Vierthaler, Edward Kenny, a/k/a Dale Roberts, Steve Hill, and Jeffrey Roberts.
    No. 61136.
    Supreme Court of Louisiana.
    Dec. 7, 1977.
   PER CURIAM.

Writ granted in part. The ruling of the trial judge is set aside and the case is remanded for a new hearing on the motion to suppress. When the mover has shown that the evidence was seized without a search warrant, the burden of proof is on the State. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). State v. Lain, La., 347 So.2d 167 (1977). In all other respects, the application is denied.

SUMMERS, J.,

is of the opinion that the evidence is adequate as to the stop of the first truck and the motion to suppress as to that search and seizure should be denied.


text:
    STATE of Louisiana v. Doris RUSH.
    No. 60124.
    Supreme Court of Louisiana.
    Dec. 16, 1977.
    DeWitt T. Methvin, Jr., Gist, Methvin & Trimble, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Alfred R. Ryder, Dist. Atty., Terry J. Johnson, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Defendant was convicted of simple criminal damage to property, La.R.S. 14:56. Finding no evidence of criminal damage to property, we conclude that the trial judge erred in denying defendant’s motion for a judgment of acquittal.

Accordingly, the conviction and sentence are reversed and the defendant discharged.

SUMMERS, J.,

dissents.

In my view there is “some” evidence to sustain the conviction — the only issue before this court. Accordingly, the conviction should be sustained.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Bruce BLOUIN.
    No. 59803.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    L. B. Ponder, Jr., Frank L. Koles, III, Ponder & Ponder, Amite, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

In January of 1976, the defendant Bruce Blouin was arrested for armed robbery and attempted second degree murder. Because the defendant was only 16 years of age at that time, a petition charging that he was a juvenile delinquent, based on the commission of these crimes, was filed against him in the juvenile court for the Parish of Tan-gipahoa. On January 26, 1976, the state filed a motion for hearing to transfer the matter to the district court so that he could be tried as an adult. This hearing was conducted on January 29, 1976 at the conclusion of which the court ordered the matter so transferred. A bill of information was then filed charging the defendant with armed robbery in violation of La.R.S. 14:64. The defendant was then arraigned and entered a plea of not guilty. However, on March 30, 1976, defendant, together with his counsel, appeared in court, the plea of not guilty was withdrawn, and a plea of guilty was entered and accepted. On May 13,1976, following a-pre-sentence investigation the defendant was sentenced to serve twenty-five (25) years at hard labor in the custody of the Department of Corrections. No appeal was taken. However, on June 18, 1976, the defendant filed a motion to vacate the guilty plea and the sentence, and an alternative motion for writs of habeas corpus. On July 22, 1976, on motion of the defendant, the court ordered the appointment of a lunacy commission. Following the defendant’s examination in this regard, a motion to fix the hearing on the motion to vacate and the application for writs of ha-beas corpus was filed. After several continuances, the hearing was held on January 27, 1977. After taking the matter under advisement, the trial court on January 29, 1977 denied the defendant the relief sought. Defendant moved for an appeal to this Court. Because the defendant was apparently seeking review of the denial of his application for habeas corpus, wé treated the appeal as a habeas application. On October 27, 1977 the writ was granted.

We construe relator’s assignments to include among them a complaint that the transfer of his case from the juvenile to the district court was not in conformity with the juvenile transfer statute, R.S. 13:1571.1, because the trial court neither conducted a meaningful transfer hearing at which evidence and/or arguments were entertained as per 13:1571.1(4) concerning whether defendant was amenable to treatment or rehabilitation through facilities available to juvenile court, nor stated “reasons for judgment with sufficient particularity to insure meaningful review by this Court.” State v. Everfield, 342 So.2d 648 (La.1977).

This Court discussed at length the factors to be considered in determining whether a juvenile should be transferred to criminal district court in State v. Everfield, supra. In that opinion, per Justice Marcus, we stated:

“. . . the decision that juvenile is not amenable to treatment or rehabilitation should be based on a careful review of relevant considerations such as the age, maturity and sophistication of the juvenile; the nature and seriousness of the offense charged; prior acts of delinquency, if any, and their nature and seriousness; past efforts at rehabilitation and treatment and the juvenile’s response thereto; whether the juvenile’s behavior might be related to physical or mental problems, and the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of the particular juvenile whose transfer is being considered. We do not mean to suggest that these are the only relevant considerations. The juvenile court judge must evaluate each case on its own merits. There are no specific standards mandated by either the state or federal constitutions. In Breed v. Jones, supra, the Supreme Court noted that, although certain procedural due process rights set forth in Kent must be afforded at a transfer hearing, . . . the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court.”

In the present case the record reflects not only an absence of consideration of the required factors but also an absence of stated reasons. Furthermore, the state in brief has effectively conceded that the required hearing was not conducted. At the hearing the only witnesses were the defendant’s mother, who merely testified as to her relationship to the defendant and his age, and a member of the Tangipahoa Parish Sheriff’s Office who testified that the petition had been filed against the defendant in juvenile court.

For the foregoing reasons we set aside the order entered in the juvenile court transferring relator’s case for prosecution in the district court as well as all proceedings in the district court subsequent to that transfer and we remand to the juvenile court for such proceedings as are appropriate and consistent with law.

Decree

Writ granted. Juvenile court transfer order and all district court proceedings set aside. Case remanded to juvenile court for further proceedings.

TRANSFER ORDER VACATED; CASE REMANDED TO JUVENILE COURT.

      . This statute, adopted pursuant to Article 5 Section 19 of the Louisiana Constitution of 1974, provides as follows:
      A.Effective January 1, 1975, after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense by the statutes of the United States, of this state, or by ordinance of local political subdivisions exercising general governmental functions, the court, before hearing the petition on its merits, may transfer the alleged offender for prosecution to the appropriate court exercising criminal jurisdiction if the district attorney, the alleged offender, or the court on its own motion, files a transfer petition and the following conditions are met:
      (1) The child has attained the age of fifteen years or more at the time of the alleged conduct;
      (2) A hearing on whether the transfer should be made is held in conformity with R.S. 13:1571.2;
      (3) Notice in writing of the time, place and purpose of the hearing is given to the child and his parents, tutor, or other custodian at least ten days before the hearing; and
      (4) The court finds that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court.
      (5) The child has previously been adjudicated a delinquent by the commission of any of the following offenses: second degree murder, manslaughter, negligent homicide, simple rape, armed robbery, aggravated battery, aggravated burglary, aggravated arson and aggravated kidnapping.
      B. The transfer terminates the jurisdiction of the juvenile court over the child with respect to the delinquent acts alleged in the petition.
      C. No child, either before or after attaining the age of seventeen shall be prosecuted in criminal court for an offense which was allegedly committed by the child who had not then attained the age of seventeen unless the case has been transferred to criminal court as provided herein, or except as otherwise provided by law.
      D. Notwithstanding any provision of law to the contrary when an offender fifteen years of age or older is charged with armed robbery or a crime punishable by life imprisonment, and a petition is filed in the juvenile court requesting the transfer of the offender to a district court of general criminal jurisdiction in accordance with R.S. 13:1571.1 et seq., should the juvenile court approve the petition for transfer without a previous adjudication of delinquency and the provisions of Paragraph 5 of Subsection A of this Section shall not be applicable in such instance.

      . In fairness to the trial judge it should be pointed out that he conducted the transfer hearing shortly after enactment of R.S. 13:1571.1 and without the benefit of our decision in Everfield.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Martha Edwards JOHNSON.
    No. 59925.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      William D. Hall, Freeman & Hall, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Donald C. Brown, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant, Martha Edwards Johnson, was tried and convicted by a jury of making improper telephone communications, La.R.S. 14:285, on three successive days to the complainant, Wayne L. Fuqua. Defendant was sentenced to serve eighteen months in jail. The sentence was suspended and defendant was placed on supervised probation for eighteen months upon the condition that she serve six months in jail.

Defendant relies upon eight assignments of error for reversal of her conviction and sentence.

The salient facts giving rise to the conviction, as revealed by the record, are as follows. The complainant, Wayne L. Fuqua, held a mortgage on the defendant’s residence. After the defendant became delinquent in her payments Fuqua instituted foreclosure and eviction proceedings. Following these proceedings Fuqua received annoying telephone calls at both his office and residence after which the caller hung up without speaking. The telephone company installed a security device on Fuqua’s telephones in order to trace the annoying calls. Successful traces were made on July 16,17 and 18,1976 which indicated that the calls originated from two telephones belonging to W. C. Wheat, the defendant’s employer. The testimony at the trial established that the defendant worked in the Wheat residence on the days the successful traces were obtained.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendant complains that the State sought to elicit evidence of annoying calls made on dates other than those contained in the bill of information. However, the witness’ testimony was limited to the dates mentioned in the charge. This assignment is frivolous.

ASSIGNMENT OF ERROR NO. 2

In this assignment the defendant complains that unresponsive answers given by the complainant on cross-examination were prejudicial and incompetent evidence. Defense counsel asked Mr. Fuqua if the caller identified himself or if there was a voice on the line. Mr. Fuqua responded that no identification was given but he could identify the defendant as the caller because he had become familiar with, her breathing patterns.

The answer was unresponsive but the defense counsel immediately interrupted the witness with his objection and the trial judge voiced his approval of the interruption. Defense counsel did not move for a mistrial or request that the jury be admonished. Thus defendant waived any error and presents nothing for our review. State v. Smith, 339 So.2d 829 (La.1976); State v. Mouton, 327 So.2d 413 (La.1976). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant alleges that the trial court erred in allowing Mr. Cecil Henderson to qualify as an expert and testify as to the installation and operation of telephone security devices. Defendant argues that the State did not show that Mr. Henderson had the necessary training or experience to support his qualification as an expert.

The record reveals that Mr. Henderson, who is presently a central office foreman for the telephone company, has worked with telephone security devices since 1972. He installed 500 to 600 of the devices during his employment as a switchman and later, in his capacity as a foreman, supervised installation of the device by others. In addition to receiving on the job training he attended a school in New Orleans dealing with electronic switching systems and the mechanics of the security device. Henderson admitted that this was the first time he had been called to give expert testimony concerning the security device.

Determination of the competency of an expert witness is a question of fact and the trial court’s ruling will not be disturbed on appeal in the absence of manifest error. State v. Self, 353 So.2d 1282 (La. 1977); State v. Carter, 347 So.2d 236 (La. 1977); State v. Roach, 338 So.2d 621 (La. 1976); State v. Rogers, 324 So.2d 358 (La. 1976). From our review of the record we find that Mr. Henderson had the necessary training and experience to support the trial judge’s ruling and that the trial judge did not abuse his discretion. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant objected to the introduction into evidence of State’s Exhibit No. 2 which consisted of the documents evidencing the traces made by the telephone company of the annoying calls made to Mr. Fuqua’s telephone from the Wheat’s telephones. On appeal defendant argues that the person making the trace was not present in court and that the documents are inadmissible hearsay.

From reading the record it appears that two telephone company employees participated in the tracing operations at issue here. A switchman, who was not present at the trial, initiated the traces immediately after Mr. Fuqua contacted the telephone company to report annoying calls. The tracing mechanism locked in the calling number so that it could be traced even after the caller hung up. Then the switchman and Mr. Henderson completed the tracing operations by checking and independently verifying the traces. Thus, defendant’s contention that the employee who performed the traces was not present at the trial is without merit because Mr. Henderson checked and verified the steps initiated by the other employee in addition to completing the tracing operation himself.

While the documentary evidence may be classified as hearsay because it was an un-sworn out-of-court assertion offered to prove the truth of the matter asserted, its admission into evidence does not present grounds for reversal. Since Mr. Henderson, who completed the traces and documentation thereof, was present at trial and underwent cross-examination by the defendant, defendant’s constitutional right to confront the witnesses against him was not violated. U.S.Const, amend. VI; La.Const. of 1974, art. I, § 16; State v. Stuart, 344 So.2d 1006 (La.1977) (dictum). Thus, because the defendant had the right to confront and cross-examine Mr. Henderson concerning the documentary evidence, no prejudice was suffered from the introduction of the evidence. La.C.Cr.P. art. 921. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

During the trial Mrs. Wheat, the defendant’s employer, testified that the complainant contacted her about the calls being made from the telephones located in her residence. When Mrs. Wheat was questioned about her actions following her conversation with the complainant, the defendant objected on the grounds of relevancy. The objection was overruled and Mrs. Wheat was allowed to testify that she questioned the defendant about making such calls and that she was considering having a tap put on the telephones to clear up the matter. Mrs. Wheat further testified that the defendant told her she thought it would be a good idea to have a tap put on the phones to clear things up. After additional questions concerning the defendant’s reactions during this conversation with her employer, the trial judge curtailed this line of questioning.

Viewing Mrs. Wheat’s testimony as a whole, the trial judge’s initial ruling allowing the State to go into the events following Mrs. Wheat’s conversation with Mr. Fu-qua did not prejudice the defendant in a manner to warrant a reversal. La.C.Cr.P. art. 921. Rather, as the State points out, the testimony of Mrs. Wheat can be viewed as favorable to the defendant. This assignment does not present reversible error.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial court erred in allowing the State to ask her whether she had been married in a church or had a common law marriage. On appeal defendant argues that the question was irrelevant and an improper method of attacking her credibility. We agree. While a witness may be cross-examined on the whole case, La.R.S. 15:280, the status of defendant’s marriage is neither relevant to the offense charged nor to her credibility. Moreover, La.R.S. 15:494 provides that a witness cannot be impeached as to collateral facts or irrelevant matter. However, the error is non-prejudicial in this case because the defendant, in response to the question, testified that she and her husband were married in 1950. Thus, reversible error is not presented here. State v. Smith, 322 So.2d 197 (La.1975); La.C.Cr.P. art. 921. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 7 and 8

In these assignments defendant alleges that the evidence presented at the trial was insufficient to support the jury verdict. An allegation that the verdict was based on insufficient evidence is essentially a factual question. Only where the defendant has moved for a judgment of acquittal in a trial before a judge or filed a motion for a new trial in a jury trial based upon the contention that there is no evidence at all of an essential element of the crime charged is a question of law presented which this Court can review. State v. Blackstone, 347 So.2d 193 (La.1977). Since defendant did not move for a new trial on this ground, these assignments present nothing for this Court to review.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

       La.R.S. 14:285 provides, in pertinent part:
      “A. No person shall:

      “(2) Make repeated telephone communications anonymously or otherwise in a manner reasonably expected to annoy, abuse, torment, harass, embarrass or offend another, whether or not conversation ensues;
      « * sfs * ”