text:
    Sammie Lee JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1902.
    Rehearing denied Nov. 1, 1976.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Nov. 1, 1976.
    Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY AND NATHAN, JJ.
   PER CURIAM.

The defendant, Sammie Lee Jackson, was found guilty by a jury of (1) robbery, and (2) aggravated battery. The charges arose out of the same criminal episode. After adjudicating Jackson guilty on both charges, the trial judge imposed a sentence of 30 years to the state prison on the robbery count and a consecutive five year sentence on the aggravated battery count.

The points presented on appeal urge (1) that the court erred in denying defendant’s written motion to suppress “all testimony as to the pre-trial identification and further preclude the State from offering any in-Court identification;” (2) that the court erred in sentencing the defendant to consecutive terms where the crimes arose out of the same “transaction.” We hold that the trial judge ruled correctly in each instance and we affirm the judgment and sentence.

The defendant’s contentions on the motion to suppress are based upon the fact that subsequent to the crimes and the time the defendant became a suspect, the police obtained from an acquaintance of the defendant a color photograph of a group of persons in which the defendant is said to have appeared and used the photograph together with black and white photographs of the defendant and others to secure from the victim the initial identification of the defendant. A strange aspect of this contention is that the defendant testified that he does not appear in the group photograph. He claimed that one of the persons in the group photograph was a person who merely happens to look like him. After obtaining this photograph, the detective selected fourteen black and white “mug shots” from police files. Included among these photographs was a “mug shot” of the defendant. The other thirteen photographs were of five other individuals with several duplicate photographs of each.

Lieutenant Casamayor met with the victim, Adelfa Rodriguez, on July 20,1975, and showed her the photographs. Upon viewing them, the victim looked at the color photograph, passed it over, looked at other photographs, then returned to the color photograph in which she identified one of the group as being her assailant. She did not identify the black and white “mug shot” of the defendant. It is conceded that the victim testified at trial that she could identify the defendant based solely on her memory without the use of any photograph.

We hold that affirmance upon point 1 is proper under the holding of the Supreme Court of Florida in Chaney v. State, Fla. 1972, 267 So.2d 65, where, although a single photograph of the appellant was shown and it was revealed to the prosecutrix that appellant had been jailed for raping another girl, the Supreme Court held, “In fact, it would be unreasonable to preclude the use of such a photograph for this pre-arrest purpose.” The court went on to state the following:

* * * * * *
“We conclude that the totality of the particular circumstances of this case does not disclose that prosecutrix’s identification of Appellant was fatally tainted to the point of denial of his rights of due process.” 267 So.2d at 69.
******

In view of the fact that the victim herein observed her assailant in a well-lit room in the afternoon prior to and during her attack and reviewed the photographs only nine days later while her memory was still fresh, there is little room for doubt that the identification of the defendant was correct. See State v. Ciongoli, Fla.App.1975, 313 So.2d 41.

The second point, which urges that the trial court erred in sentencing the defendant to consecutive terms upon convictions of robbery and aggravated assault because both convictions arose out of the same criminal incident, relies upon the holding in Yost v. State, Fla.App.1971, 243 So.2d 469. In that case, we held:

* * 4c * * *
“In Florida, where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed; and the sentence which should be imposed is for the highest offense charged.”
* # * * * *

Subsequent to the Yost opinion, the Supreme Court of Florida dealt with this problem in Jenkins v. Wainwright, Fla.1975, 322 So.2d 477, where the Supreme Court pointed out:

* * * * * *
“Further, in Estevez v. State, 313 So.2d 692 (Fla.1975), we held that breaking and entering with intent to commit grand larceny and grand larceny are each separate offenses for which separate sentences may be imposed. We specifically said that these offenses were not ‘facets of the same transaction’ although they arose out of the same incident.”
* * * * * *

The court further held:

“The facts in the instant case show that the petitioner had possession of two separate drug substances, each of which constitutes in and of itself a separate violation of law. If multiple sentences are proper as set forth in Steele v. Mayo, 72 So.2d 386 (Fla.1954), supra, Norwood v. Mayo, 74 So.2d 370 (Fla.1954), supra, and Estevez v. State, supra, they are proper in this instance, and we so hold.” * * * * * *

See also Moreno v. State, Fla.App.1976, 328 So.2d 38 (released March 3, 1976).

Even if a temporal distinction between the two crimes should have been necessary for the imposition of sentences on each of the two crimes, the facts of this case would meet such a test because the record shows that the defendant first struck and beat the victim until she was rendered unconscious and then committed the robbery.

Having examined the points presented and finding no error, the judgments and sentences are affirmed.

      . The victim testified:
      $ # * Hi * *
      “Q. But you’ve only known this person for a couple of minutes?
      “A. Yes, but it was very close to his face, when he was choking me I was looking at his face, when he was choking me I was looking at his face.”
      $ * * $ $ *


source: Caselaw Access Project

author: CROSS, Judge. MAGER, Chief Judge

license: Public Domain

text:
    Albert D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-943.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Rehearing Denied Nov. 5, 1976.

      Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

The appellant-defendant, Albert D. Williams, appeals a judgment of guilty and imposition of sentence for possession of heroin. We reverse.

Albert D. Williams was one of two passengers in an automobile which had been stopped for being driven in an erratic manner. A driver’s license check on the driver, Albert Mitchell, revealed an outstanding warrant for Mitchell’s arrest. Mitchell was then taken to the police station for questioning. The appellant, Williams, and the other passenger, Byron Smith, who were not detained, then entered a restaurant where the car had been stopped.

Prior to Mitchell’s being taken to the police station, Officer Palmisino of the Boca Raton Police Department, asked Mitchell to lock the car and give him the keys. Mitchell complied with this request and also produced a rental agreement showing that the car was leased to the mother of one of the passengers, Byron Smith. Officer Palmisi-no then turned Mitchell over to another police officer to be transported to the police headquarters. Palmisino then returned to his patrol.

Shortly afterwards Officer Palmisino learned that the warrant outstanding for Mitchell was for violation of the drug abuse law. Palmisino then returned to the restaurant where the vehicle had been left, shined his flashlight into the car, observed an open ashtray with a silver spoon lying across the ashtray. The bottom of the spoon appeared to be blackened from soot, as if it had been burned. Palmisino also noticed that the spoon contained a whitish-yellowish substance, and appeared to have been used as a cooker to prepare heroin for injection. Palmisino then went into the restaurant and asked Smith and Williams to come out to the car and open the door, giving them the keys. Palmisino took the spoon from the ashtray and examined the substance in the spoon which he believed to be heroin. A search of Smith revealed a packet of heroin. A search of Williams revealed nothing. Smith and Williams were arrested and taken to police headquarters. Subsequently, a strip search of Williams at the police station revealed a packet of heroin.

An information was filed charging Williams with possession of heroin. Williams moved to suppress the heroin seized from his person at the police station. The motion to suppress the evidence seized was denied. Williams then entered a plea of nolo con-tendere to the charge of possession of heroin, reserving the right to appeal the order denying the motion to suppress. The trial court adjudged Williams guilty and sentenced him to a term of years in the state prison. This appeal then followed.

The thrust of the appeal is whether the search of Williams was incident to a lawful arrest.

When a lawful arrest is made, whether with or without a warrant, a reasonable search and seizure properly incident to the arrest may be made by the officer. If the search reveals any violation of the law, the evidence so found may be seized and used against the person in whose possession it is found. Casso v. State, 182 So.2d 252 (Fla.App.1966). To be lawful, an arrest without a warrant must be predicated on probable cause. Probable cause for making an arrest has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty of a criminal offense. State v. Knapp, 294 So.2d 338 (Fla.App.1974). Where an arrest is unlawful, a subsequent search is unlawful and cannot be made legal by the evidence which may be found. Bailey v. State, 295 So.2d 133 (Fla.App.1974). Evidence discovered pursuant to a search subsequent to an illegal arrest cannot supply missing factual data to establish probable cause for an arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Turning to the instant case, we conclude that the facts available to Officer Palmisino prior to appellant’s arrest were insufficient to establish probable cause to arrest Williams. Williams had been a passenger in a car driven by Mitchell, for whom there was an outstanding warrant for his arrest on a drug charge. There was located in the automobile, in which Williams was a passenger, a cooker spoon containing a powdery substance appearing to be heroin. Smith was found in possession of a packet of heroin. However, there was absolutely nothing to connect Williams with the drug related offense, which was the subject of the arrest warrant outstanding for Mitchell, or the cooker spoon found in the automobile. Furthermore, Williams was searched by Palmisino immediately pri- or to the arrest, and no contraband was found. Appellant’s arrest being illegal, the heroin seized at the police headquarters subsequent to the illegal arrest should have been suppressed as evidence on Williams’ motion. Thus was the error of the trial court.

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

Reversed and remanded.

SMITH, D. C., Associate Judge, concurs.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge

(dissenting):

I must respectfully dissent because in my opinion there was probable cause to arrest defendant. The presence of the cooker spoon containing a white substance appearing to be heroin found in the automobile in which defendant was a passenger was a reasonable basis upon which to predicate an arrest of defendant for the possession of narcotics paraphernalia. The fundamental requirement of probable cause has reference only to the arrest without a warrant and should not be confused with any probability of conviction. Stated differently, the circumstances may be sufficient to give rise to probable cause to arrest without a warrant but such circumstances may ultimately during the course of the evidentiary proceedings fall far short of that which is necessary to convict. Whether the state could ultimately prove the charge against defendant is totally immaterial to the threshold proposition of whether there was probable cause to arrest. I believe that the evidence supports the legality of the arrest and the subsequent search at police headquarters which revealed defendant’s possession of a packet of heroin. I would therefore affirm.


author: PER CURIAM.

text:
    NORTH BAY VILLAGE LIONS FOUNDATION, INC., Appellant, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    No. 75-1592.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 2, 1976.
    Hirschhorn & Freeman, Miami, for appellant.
    Joseph A. Wanick, City Atty., and Andrew H. Moriber, Asst. City Atty., for ap-pellee.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Appellant, plaintiff below, brings this appeal from a final judgment entered by the trial court in favor of* appellee, defendant below.

On March 26, 1975, a complaint for declaratory and injunctive relief was filed by the North Shore Optomist Club of Miami Beach against appellee, the City of Miami Beach. Subsequently, by an order of the trial court, North Bay Village Lions Foundation, Inc., was substituted as plaintiff.

After a final hearing, the trial court entered, in pertinent part, the following final judgment dated September 10, 1975:

“THIS CAUSE came before the Court for final hearing upon the Plaintiff’s Complaint herein seeking declaratory and injunctive relief from Ordinance No. 74-2012 of the City of Miami Beach, relating to bingo games licensing.
“Counsel for the Plaintiff and Defendant stipulated for the purpose of the hearing, among other things, that the Plaintiff rents, on a yearly basis, property located within the city of Miami Beach for the purpose of conducting bingo games at that location. They further stipulated that the Plaintiff conducts bingo games on the premises two (2) days a week and through informal arrangements permits other charitable organizations to use the premises to conduct bingo games on the other five (5) days a week with the understanding that the proceeds received from the bingo games is given over to the host Lions Club. Thereafter some of the proceeds are then given from the Lions Club back to the charitable organization running the game.
“Based upon the foregoing stipulations, this Court finds that the Plaintiff has come to this Court seeking equity with unclean hands and therefore is not entitled to the relief sought for the reason that the Plaintiff permits its premises to be used in violation of Florida Statute 849.093. The Court therefore finds it unnecessary to consider the merits of Plaintiff’s Complaint. Therefore, is is hereby
“ORDERED and ADJUDGED that the Complaint in this cause be and the same is hereby dismissed with prejudice, and it is further
“ORDERED and ADJUDGED that each party shall bear their own costs in this litigation.”

From this final judgment, appellant appeals.

Appellant contends on appeal that Section 849.093, Florida Statutes (1975), permits a charity (here appellant) to operate bingo two nights a week and to receive proceeds from the operation of bingo by other charities on the remaining nights of the week. Appellee contends that appellant’s bingo operation as a whole is not within the exception created by Section 849.093, Florida Statutes (1975), to the general prohibition against gambling contained in Chapter 849, Florida Statutes (1975).

Based on the stipulated facts in this case and as found by the trial court, appellant was permitting its premises to be used in violation of Section 849.093, Florida Statutes (1975). Therefore, in our opinion, the final judgment was properly entered by the trial court.

We have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authority cited, the final judgment appealed is affirmed.

Affirmed.


text:
    EL CONQUISTADOR CONDOMINIUM, INC., Appellant, v. Mr. and Mrs. William DAY et al., Appellees.
    No. 75-1595.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 2, 1976.

      Swann & Glass, Orlando, for appellant.
    Becker & Poliakoff, Miami Beach, Petti-grew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This appeal is by the developer-builder of a condominium from a final judgment holding that it was liable for building defects in the common elements of the condominium and assessing damages therefor. The successful counter-plaintiffs were 125 of 210 individual owners of condominiums in the development.

The principal question raised is whether the trial court properly determined that the counter-plaintiffs constituted a class for the prosecution of the action. It is urged that a proper class does not appear from the pleadings and facts of the case. We think that the law has been decided adversely to the appellant on that point in other condominium development cases. See Rubenstein v. Burleigh House, Inc., 305 So.2d 311 (Fla. 3d DCA 1974); Wittington Condominium Apartments, Inc. v. Braemar Corporation, 313 So.2d 463 (Fla. 4th DCA 1975).

The counter-defendant further urges that it was error for the court to fail to rule directly on the issue of the propriety of the class action. The record shows that counter-defendant’s motion to dismiss contained a ground directed to the propriety of a class action. The trial judge denied the motion. No further ruling on this particular issue was sought by motion in the trial court. We hold that counter-defendant’s acceptance of the ruling on the motion to dismiss without further request for ruling on the ground specified constituted a waiver of the usual requirement for an early and direct ruling on the issue as specified in Federated Dept. Stores, Inc. v. Pasco, 275 So.2d 46 (Fla. 3d DCA 1973).

Appellant’s remaining points fail to show error because appellant as counter-defendant did not properly raise the questions in the trial court. See Lee County Oil Company, Inc. v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1957).

Affirmed.


author: SMITH, Judge.

text:
    Danette S. QUINA and Gregory T. Quina, Appellants, v. R. J. HARRELL, Appellee.
    No. X-8.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      R. P. Warfield, of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellants.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   SMITH, Judge.

Appellant Danette S. Quina, a minor, was injured when her long hair became entangled in the drive chain of a go-cart she operated at appellee’s track. In the ensuing action by Danette and her father for money damages, appellee pleaded affirmatively the defense of assumption of risk as well as that of contributory negligence. On consideration of appellee’s motion for directed verdict, the trial court refused to withdraw the issue of assumption of risk from the jury’s consideration; and the court charged the jury, if Danette assumed the risk, it would entirely bar her recovery. The jury returned a verdict for defendant and a judgment was entered on the verdict.

While the trial court’s charge on assumption of the risk was contrary to our later decision in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla.App.1st, 1975), cert, pending, we would not reverse for that error alone because appellants’ objection to the charge was not specific, as required by Young v. Phillips Petroleum Co., 333 So.2d 87 (Fla.App.1st, 1976). Neither was the objection accompanied by a requested charge which appellants conceived would be appropriate, if the issue were to be submitted at all. But we find that there is no evidence in the record from which the jury could properly have found that Danette “more or less deliberately” and willingly exposed herself to the specific risk which resulted in her injury. The issue of assumption of risk should not have been submitted to the jury for any purpose. Byers v. Gunn, 81 So.2d 723 (Fla.1955). See also Brady v. Kane, 111 So.2d 472 (Fla.App.3d, 1959); Bartholf v. Baker, 71 So.2d 480 (Fla. 1954); City of Jacksonville Beach v. Jones, 101 Fla. 96, 133 So. 562 (1931). Contra, Crosier v. Joseph Abraham Ford Co., 150 So.2d 499 (Fla.App.3d, 1963), cert. den. 155 So.2d 693 (Fla.1963).

REVERSED.

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


author: McCORD, Judge.

text:
    Winifred Huey KIMMONS, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Appellee.
    No. BB-30.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Winifred Huey Kimmons, in pro. per.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

This is an appeal from an order denying petition for writ of habeas corpus. Appellant, while serving two twelve-year consecutive sentences for manslaughter, was released on parole. Upon subsequent violation of parole, he was again incarcerated and the Department of Offender Rehabilitation imposed a forfeiture of his gain time which he had accumulated prior to parole. Appellant contends that he had accumulated sufficient gain time prior to parole to terminate the first of the consecutive sentences and that therefore, he having served this sentence, the forfeiture of gain time was unlawful. As to forfeiture of gain time, § 944.28(1), Florida Statutes (1975), provides as follows:

“If a prisoner is convicted of escape, or if the clemency or parole granted to him is revoked, the [Department of Offender Rehabilitation] may, without notice or hearing, declare a forfeiture of all gain time earned and extra gain time allowed such prisoner, if any, prior to such escape or his release under such clemency or parole, as the case may be.”

With particular reference to appellant’s consecutive sentences, § 944.27(2) provides as follows:

“When a prisoner is under two or more cumulative sentences, he shall be allowed gain time as if they were all one sentence and his gain time, including any extra gain time allowed him under § 944.29, shall be subject to forfeiture as though such sentences were all one sentence.”

Subsection (1) of § 944.27 sets forth the gain-time allowances. Under it, if there were no subsection (2), appellant’s two consecutive sentences would be treated separately for gain-time purposes, and he would have received gain-time credit on each sentence for only five days per month off the first and second years and only ten days per month off the third and fourth years of each sentence. Because of the operation of subsection (2) of § 944.27 quoted above, had appellant not forfeited his gain-time, he would have received one more year gain-time credit under the operation of § 944.-27(2) than he would have received had the two sentences been treated separately. It is, therefore, apparent that the legislature has given a bonus of gain-time to prisoners who receive consecutive sentences, but along with this bonus goes the responsibility of doing nothing that would cause a gain-time forfeiture. All accumulated gain time may be forfeited if a prisoner is granted and then violates the terms of his parole. Gain-time is given to prisoners through the beneficence of the legislature, and the legislature has full authority to establish the terms and conditions thereof. We find nothing discriminatory in the foregoing statutes or in their application to appellant. Under the foregoing statutes, consecutive sentences are treated as a single sentence for gain-time purposes and a prisoner has not served the first of two consecutive sentences until he has served it exclusive of gain-time. Gain-time as to cumulative sentences is only applicable to the sentences as a unit.

AFFIRMED.

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


text:
    George R. LEWIS et al., Appellants, v. CUES, INC., Appellee.
    No. 76-997.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.
    Rehearing Denied Nov. 8, 1976.
    Allen K. McCormick, Orlando, for appellants.
    Robert W. Duckworth, Orlando, for ap-pellee.
   PER CURIAM.

Upon review of the briefs and the appellate record we are of the opinion that no reversible error occurred with respect to the trial court’s denial of the motion to dismiss of appellants-defendants, Conco, Inc. and O’Brien Manufacturing Company, Inc.; however, we are of the opinion that the trial court erred in denying the motion to dismiss of appellant-defendant Lewis.

The complaint filed below by appellee-plaintiff, Cues, Inc., sought damages for alleged interference with the contractual relations; unjust enrichment for the use of trade secret information; and breach of contract. Service of process was made upon each of the appellants-defendants in the State of Illinois pursuant to the Florida long-arm statute (section 48.193(l)(b), (g), Florida Statutes).

With respect to appellants-defendants, O’Brien Manufacturing Company, Inc. and Conco, Inc., we are of the opinion that the record reflects sufficient jurisdictional facts to support the appellee-plaintiff, Cues, Inc.’s, cause of action predicated upon the alleged commission of a tortious act within the State of Florida consistent with count one, i. e., interference with contractual relations. Elmex Corp. v. Atlantic Federal Savings & L. Ass’n, 325 So.2d 58 (Fla.4th DCA 1976); Rebozo v. Washington Post Company, 515 F.2d 1208 (5th Cir. 1975); see also Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla.4th DCA 1971). However, with respect to appellant-defendant Lewis, we are of the opinion that the record does not contain sufficient jurisdictional facts to support the appellee’s cause of action against Lewis predicated upon a breach of contract in the State ; on the contrary, the evidence shows that the breach, if any, occurred in the State of Illinois.

Accordingly, the order denying appellants-defendants, O’Brien Manufacturing Company, Inc. and Conco, Inc.’s motion to dismiss is affirmed and the order denying appellant-defendant Lewis’ motion to dismiss is reversed and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.

      . “Sec. 48.193 Acts subjecting persons to jurisdiction of courts of state
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      * * * * * *
      (b) Commits a tortious act within this state ' * * * * * *
      (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.”

      . In our opinion the taking of a deposition by a non-resident served with substituted service of process in support of a motion to dismiss for lack of jurisdiction does not constitute an appearance for the purpose of conferring jurisdiction upon the court. Cf. McKelvey v. McKelvey, 323 So.2d 651 (Fla.3d DCA 1976); Ward v. Gibson, 340 So.2d 481, (Fla.App.) Third District Court of Appeal Case opinion filed June 2, 1976.


text:
    Thinnell DAWSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1608.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Thinnell Dawson was charged in two in-formations with rape, aggravated assault, robbery and breaking and entering. After a non-jury trial, he was adjudged guilty on all counts and sentenced to concurrent terms in the state penitentiary of thirty years, twenty years, five years and fifteen years on the respective counts. The sole point raised on appeal is that the trial court erred in finding Dawson guilty of aggravated assault.

The evidence disclosed, and it was not refuted by the defense, that Dawson threatened the victim with a rifle, known to the victim to be unloaded, and also with a knife. Dawson’s argument is that since the victim knew that the rifle was not loaded, there was no evidence of the material element of fear.

On appeal, we review the record for the purpose of determining whether it contains substantial competent evidence which, if believed, will support the trial judge’s finding of guilt. Crum v. State, 172 So.2d 24 (Fla. 3rd DCA 1965); Starling v. State, 263 So.2d 645 (Fla. 3rd DCA 1972). Generally, all conflicts and reasonable inferences from the evidence are to be drawn in favor of the judgment of conviction and the evidence is to be viewed in the light most favorable to support the conclusion of the trier of fact. Douglas v. State, 214 So.2d 653 (Fla. 3rd DCA 1968); Dreger v. State, 228 So.2d 431 (Fla. 3rd DCA 1969).

Our review of the record discloses sufficient evidence from which the trier of fact could reasonably infer that the victim was placed in fear by the defendant’s act of threatening her with the unloaded rifle. Even if the evidence in the record was not sufficient to support a finding that the victim was placed in fear by the assault with the unloaded gun, nevertheless, there is ample substantial evidence that the victim was placed in fear by the assault committed by the defendant with the knife.

Finding substantial evidence competent evidence to support the trial judge’s finding of guilt, we affirm.

Affirmed.

      . State v. White, 324 So.2d 630 (Fla. 1975), indicates that the crime of aggravated assault includes as one of its elements the victim’s well-founded fear that violence is imminent.

      . We note that a gun may be used as a club, stick or bludgeon, and thus is a deadly weapon in this capacity as well as in discharging bullets. See, for example, Wade v. Wainwright, 266 So.2d 378 (Fla. 4th DCA 1972).


text:
    Stanley PERLMAN, Appellant, v. Oscar MANNEN et al., Appellees.
    No. 75-1610.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Milton Kelner, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and George B. Foss, Jr., Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and HAYERFIELD, JJ.
   PER CURIAM.

Plaintiff, real estate broker, appeals an adverse final judgment in an action to collect the balance of his commission.

Defendants Oscar Mannen, Harvey Factor and Samuel Novell and their wives are the owners of 56.01 acres of land in Boca Raton, Florida. Plaintiff Stanley Perlman procured Michael Grasso to purchase defendants’ property. The defendants agreed in writing to pay plaintiff as procuring broker a commission of $50,000, payable lh at closing, Vz after the buyer paid the first annual mortgage installment and Vs after payment of the second annual installment. Upon closing plaintiff was paid Vs ($16,667) of his commission. Following the closing the City of Boca Raton rezoned the subject property from multi-family to single family residential and as a result Grasso never made the first annual payment when it became due. With the consent of plaintiff, defendants granted Grasso an extension so that he might seek rezoning from the city. Being unsuccessful, the mortgage was can-celled and Grasso and defendants entered into a new agreement whereby the land was transferred to a joint venture of Grasso and defendants. This venture was committed to seeking a zoning change. Pursuant to this agreement a four acre parcel of the 56-acre tract was transferred outright to Grasso for $40,000 and defendants paid plaintiff an additional $2,000 (5% of $40,-000). Plaintiff then instituted action to recover the balance of the $50,000 commission allegedly due him. The cause proceeded to a jury trial at the conclusion of which the jury found for the defendants.

Plaintiff broker contends the trial judge erred by instructing the jury that the defendant sellers were not liable for his commission unless nonperformance of the condition precedent thereto (payment of the mortgage installments by Grasso) was caused solely by the defendants. We disagree.

We find that the jury instructions reflected correct statements of law. Cf. Advertects, Inc. v. Sawyer Industries, 64 So.2d 300 (Fla.1953); Mohawk, Inc. v. Cohen, 125 So.2d 909 (Fla.3d DCA 1961).

Plaintiff also argues that since the commission agreement is not • ambiguous, the trial judge erred in determining that it is within the province of the jury to consider the agreement and the dealings between defendants, Grasso and himself subsequent to the execution thereof.

Although the agreement itself is unambiguous, whether or not that which had transpired subsequently would constitute a breach of contract on the part of defendants and, thus, make them liable for the remainder of plaintiff’s commission was a matter of fact to be determined by the jury. See 7 Fla.Jur., Contracts, § 153 (1956) and cases therein.

We find that the issues raised as a result of these dealings were properly submitted along with the agreement to the jury for its determination.

Affirmed.


author: LESTER, M. IGNATIUS, Associate Judge.

text:
    Micaela de la CRUZ, Appellant, v. Phillip C. BROWN et al., Appellees.
    No. 75-1685.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Guillermo F. Mascaro, Coral Gables, for appellant.
    Stone, Sostchin & Koss, Miami, for appel-lee.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   LESTER, M. IGNATIUS, Associate Judge.

Micaela de la Cruz, having been injured in an automobile accident, hired the Appel-lee, Adolfo Koss, to represent her and, after negotiations with the defendants’ insurer, subsequently Micaela de la Cruz decided to discharge the attorney, which she did by a series of letters, and, during the time the letters were being received by the attorney, the defendants’ insurance agent made a firm settlement offer of $10,000.00, and this offer was transmitted to Micaela de la Cruz, who refused the offer and returned the check to the insurer. Having discharged her attorney, she obtained the services of Guillermo F. Mascaro, who filed suit against the tort-feasor and his insurer. Adolfo Koss then filed his claim of lien for attorney’s fees. After the suit was filed, the new counsel for Micaela de la Cruz obtained an identical settlement of $10,-000.00 from the defendants’ insurance company.

The trial court denied the motion to strike the claim of lien and ordered the insurer to deposit $3,333.33 of the settlement into the registry of the Court and the remainder to be paid to Micaela de la Cruz.

A jury trial was requested on the issue of attorney’s fees, and the Court denied the request and, after taking testimony, entered an order of $2,833.00 for Adolfo Koss and $500.00 for Guillermo F. Mascaro. The Appellant raises the question in the appeal that the amount of the fees to be recovered by the discharged attorney must be decided by a separate action at law and trial by jury, and that the notice of lien was defective in that it contained no factual allegation to support a claim of lien.

We find the trial judge to be correct in denying the plaintiff’s motion to strike the claim of lien for attorney's fees, and the Court was correct in denying the request for jury trial.

The attorney's lien for services rendered .is equitable in nature, and the adjudication of the lien by the Court upon the proceeds of any recovery by the client was proper. The distribution of attorney’s fees comes under the equity jurisdiction of the trial court. Since the attorney Adolfo Koss filed a charging lien upon the proceeds of any recovery by his client, all parties were within the jurisdiction of the court, and the trial court took testimony as to his services rendered prior to trial and made an equitable determination of the fee the attorney Koss was entitled to receive prior to his discharge.

Since the dispute arises between two attorneys and there was a charging lien, the case of Worley v. Phillips, 264 So.2d 42 (Fla.App.2d 1972) is controlling. The Court held:

“* * * Rule 1.030 R.C.P. 30 F.S.A., provides that the Court may condition the substitution of an attorney upon payment of or security for the substituted attorney’s fee and expenses, or upon such other terms as may be just. The charging lien is an equitable right to have the costs and fees due the attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It was created to protect the rights of the attorney. Chancey v. Bauer, C.C.A. 5, 1938, 97 F.2d 293; 3 Fla.Jur., Attorneys at Law, § 71; 7 C.J.S. Attorney and Client § 211. The creation of a charging lien upon the proceeds of any recovery by the client in an equity action is an acceptable method of providing security for the payment of the attorney’s fee. Winn v. City of Cocoa, Fla.1954, 75 So.2d 909; Kurzweil v. Simon, Fla.App.1967, 204 So.2d 254. But where there is no charging lien involved, a lawyer’s claim for fees must be prosecuted in a separate action at law, Chaachou v. Chaachou, Fla. App.1960, 122 So.2d 24; Riddle Airlines, Inc. v. McGahey, Fla.App.1962, 144 So.2d 92. See Goodkind v. Wolkowsky, 1938, 132 Fla. 63, 180 So. 538.”

We find no merit in any of the other errors assigned by the plaintiff. For reason assigned, the orders appealed from are affirmed.

Affirmed.


text:
    In the Interest of Veronica CONTRINO, a minor. Vincent CONTRINO, Appellant, v. DIVISION OF FAMILY SERVICES, Appellee.
    No. 75-1704.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Warren S. Schwartz, Jerry Kahn, Miami, for appellant.
    Myles J. Tralins, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the respondents, the mother and father of Veronica Contrino, a minor, from a final judgment permanently committing three-and-a-half year old Veronica to the care, custody and control of the State of Florida, Department of Rehabilitative Services, Division of Family Services for subsequent adoption.

The sole issue presented on this appeal is whether there is sufficient substantial evidence to support the trial court’s final judgment of permanent commitment to the Division of Family Services for adoption.

The child has a lengthy history, commencing at the age of four weeks, of tragic subjection to abuses by the mother in the presence of the father and with his knowledge. The record discloses that on six different occasions prior to the filing of the petition for permanent commitment, this child was committed to the Division of Family Services as a result of parental abuse and neglect.

We find, without doubt, that the record in this case contains ample competent, substantial evidence to support the court’s conclusion that it is manifestly in the best interest of the child to be permanently committed to the State of Florida for subsequent adoption to provide her with the stability, continuity and emotional support needed by a child of her tender years.

Affirmed.


text:
    Henrietta PITMAN, Appellant, v. Nathan PITMAN, Appellee.
    No. 75-1714.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Sue Rose Samuels, North Miami Beach, for appellant.
    Abrams & Abrams, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

In this dissolution of marriage proceedings the appellant, as petitioner, sought a special equity in certain funds received by the appellee from the sale of a business in which the evidence indicates she worked on occasion. The husband filed a counter-petition, urging a special equity in the residence of the parties and sought permanent alimony-

Upon entering a final judgment of dissolution of marriage, the trial judge did not award alimony to the husband; did not make any ruling on the issue of special equity as presented by either party; but did include the following provision in the final judgment:

* * * * * *
“3. That the Husband deposits the sum of $20,000.00 in a savings and loan association special account in Dade County, Florida, without the right of withdrawal, hypothecation or pledge on the part of the Husband, but solely for the purpose of paying to the Husband the income earned thereon until further order from the Court. If the husband predeceases the wife said sum shall become the sole property of the wife. If she predeceases him sole ownership shall be in him without reservation. * * * ”
******

This appeal ensued, the appellant contending that the trial judge should have made a specific ruling as to whether or not the wife was entitled to a special equity in this fund, which represented a portion of the proceeds from the sale of the husband’s business, citing Henderson v. Henderson, 226 So.2d 699 (4th D.C.A.1969), wherein the following is found:

******
“Finally, the wife is aggrieved at the court’s failure to adjudicate and determine her claim to a special interest or equity in certain business and property rights. While the decree recognizes that certain property is owned as tenants by the entirety, it is silent and reflects no decision as to the matter of the wife’s special equities. The husband tacitly recognizes this omission, as indeed he must, and simply asserts that the evidence as to certain assets was insufficient to support an award and as to other property suggests that, because of certain events which have happened subsequent to trial (which are not of record), her claims is moot. We say without difficulty that the law of this state requires a decision as to this issue, becausé a final judgment settles all of the property rights of the parties and bars any future action brought by either party to determine his or her respective property rights. Dockery v. Dockery, Fla.1949, 43 So.2d 460; Shannon v. Shannon, Fla.App.1958, 101 So.2d 428. “The final judgment is reversed with directions to enter judgment in favor of the wife as to such special interests and equities as she may be entitled, if any, under the evidence. In all other respects the final judgment appealed from is affirmed.” [emphasis added]
******

The appellee contends the final judgment of dissolution of marriage should be affirmed upon the authority of Rouse v. Rouse, 313 So.2d 458 (3rd D.C.A.1975). We disagree. In Rouse v. Rouse, supra, the trial court awarded alimony and then secured it by certain property in the event of the husband’s death. No award of alimony was, in fact, made in the instant case.

Therefore, we agree with the appellant and remand the matter to the trial court [either upon the record already made or after taking further evidence in his discretion] to award the wife a special equity in this fund or deny any such award, and to take up any other matters relative to permanent alimony for either of the parties after he makes a determination as to whether or not the wife has a special equity in and to this fund.

Reversed and remanded, with directions.

      . No appeal or cross-assignments of error were filed by the appellee.


text:
    Dorthy KRANZ Executrix of the Estate of Floyd M. Kranz a/k/a Floyd Martin Kranz, Deceased, Appellant, v. Rodolfo PEREZ and Edith R. Perez, Appellees.
    No. 75-1759.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Manuel Diner, Miami, for appellant. Magill & Sevier, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Davis v. Evans, 132 So.2d 476 (Fla.1st DCA 1961).


author: BARKDULL, Chief Judge.

text:
    Joseph FELD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1819.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.

      Albert L. Carnearte, Manners & Amoon and Harold Mendelow, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   BARKDULL, Chief Judge.

The appellant was convicted of aggravated assault and prosecuted this appeal. During the preparation of the record on appeal, it became apparent that the court reporter had lost some of her notes. Thereafter, the trial court entered an order requiring trial counsel to prepare a narrative of that portion of the transcript not available. That order read in part as follows:

ORDERED that the Assistant State Attorney Timothy Choate and defense counsel for the Defendant herein, Albert L. Carricarte, Esquire, shall, in narrative form, set down their recollection of the testimony and happenings before this Court from the point where the Defendant took the stand in his own behalf; and said counsel shall supply this Court * * with this narrative of said recollections * * * fi
******

The only point urged for reversal of the judgment of conviction under review and the awarding of a new trial is the failure of the narrative statement (approved by the trial judge) to contain evidence as related by the State’s rebuttal witness.

We reject this contention for several reasons: First, if there was error in the preparation of the narrative stipulation, defense counsel participated in this error and induced the trial judge into approving the stipulated narrative. Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968); Bianchi v. State, 272 So.2d 8 (Fla.3d DCA 1973); Castle v. State, 305 So.2d 794 (Fla.4th DCA 1974). Next, the original assignment of error in this cause went to the sufficiency of the evidence. No contention is made that the State did not prove a prima facie case in its case in chief; the most that the rebuttal evidence presented would be in contravention of the defense presented by the defendant. Therefore, the portion not referred to in the narrative would be immaterial. Additionally, it is incumbent upon the appellant’s counsel, if he objects to the record on appeal [be it either a transcribed record or a narrative record], to make this objection known to the trial judge. No such objection or motion to correct the record was ever made to the trial judge in this cause. Therefore, any objection to the record on appeal has been waived. Hayden v. State, 150 Fla. 789, 9 So.2d 180 (1942); Nations v. State, 145 So.2d 259 (Fla.2d DCA 1962); Fla.App. Rule 3.61.

Under the circumstances of this case, we hold that there is an adequate record on appeal and, the appellant having elected to preserve as the sole point on appeal reversal upon the alleged insufficiency of the record, we affirm the final judgment under review.

Affirmed.

      . There has been no assertion made herein that defense counsel was vindicative toward the defendant, rendering preparation of a stipulated record impossible. Simmons v. State, 200 So.2d 619 (Fla. 1st DCA 1967).


text:
    James Charles WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-2024.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Phillip A. Hubbart, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant appeals his conviction for first degree murder and manslaughter following a jury trial.

Defendant first contends that the trial judge erred in denying his motions for mistrial on the grounds that the prosecution elicited improper and highly prejudicial references to him as being the perpetrator of the crimes, and that this testimony was hearsay.' We cannot agree.

Merely because a statement would not be admissible for one purpose (i. e. its truth or falsity) does not mean it is not admissible for another (e. g. to show the declarant’s state of mind). Hunt v. Seaboard Coast Line Railroad Company, 327 So.2d 193 (Fla.1976). Further, the hearsay objection is unavailing when the inquiry is not as to the truth of the words spoken, but merely whether they were in fact spoken. General Tire of Miami Beach, Inc. v. N. L. R. B., 332 F.2d 58 (5th Cir. 1964). The trial judge properly instructed the jury with respect to the statements to which defendant objected, and we find that the motions for mistrial were correctly denied.

Defendant secondly argues that the court committed reversible error in permitting the prosecution to elicit from the arresting officer testimony which indicated that he had exercised his right to remain silent in the face of interrogation.

Our review of the officer’s testimony did not reflect that the defendant had exercised his right to remain silent in face of police questioning and to assert that it was so construed by the jury would be pure speculation. Cf. Sullivan v. State, 303 So.2d 632, 635 (Fla.1974).

Affirmed.


author: McCORD, Justice.

text:
    Gary JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. Z-352.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.
    Rehearing Denied Nov. 3, 1976.
    Richard W. Ervin, III, Public Defender and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Justice.

Appellant was convicted on one count of breaking and entering with intent to commit a felony and on a second count of larceny of a firearm. The trial judge pronounced one sentence on the two counts. This appeal is from the judgments and sentence.

Appellant contends that the court erred in refusing to permit him to proffer certain testimony' of his mother, witness Josephine Johnson. Willie Davis, an alleged accomplice, testified against appellant at the trial. In attempting to show bias of Davis against him, appellant’s attorney, on cross-examination of Davis, asked “Did Josephine Johnson ever accuse you of stealing her silverware out of her home in Clear-water? An objection was made. In support of the question, appellant’s counsel stated: “Your Honor, may I state to the court at this time that I think the question goes to the potential interest or bias of the witness in testifying against the defendant Johnson here today and that’s why I pose the question.” The court sustained the objection. Later, Josephine Johnson (mother of appellant and also the sister of witness Willie Davis) was put on the stand by appellant in a further attempt to show bias of Davis against appellant. She was asked by appellant’s attorney whether Davis had ever stayed with her in Clearwater. She replied that he had and then she was asked the following question: “How did you and Willie Davis get along down there?” Objection was made, the court sustained the objection, and appellant’s counsel asked if he could make a proffer of her testimony out of the presence of the jury. The court declined to allow the proffer. Appellant’s counsel stated to the court that the question was a preliminary one leading into some difficulties that Mrs. Johnson had with Willie Davis while he was in Clearwater which he stated went to explain the interest and bias of Davis in accusing appellant of the crime. While the question posed to witness Davis was proper cross-examination in an attempt to show bias or animus [see Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Kirkland v. State, 185 So.2d 5 (Fla. 2 DCA 1966); and Simmons v. Wainwright, 271 So.2d 464 (Fla. 1 DCA 1973)] and it was error to exclude it and in addition to not' allow a proffer of it for the purpose of appellate review, we consider it harmless error in this case. From the statements made on the record by appellant’s counsel, it appears that he desired to show that because appellant’s mother had accused Davis of stealing her silver, Davis was giving false testimony against appellant. This is rather remote, as the trial court pointed out and, in addition, appellant when he took the stand testified to it. Thus, the jury had the inference before it for such weight as it considered should be given to it.

As to the trial court imposing one sentence on appellant for the two convictions, it was error to impose such a general sentence. King v. State, 320 So.2d 19 (Fla. 2 DCA 1975).

The convictions are affirmed, but the general three year sentence is reversed. The case is remanded for resentencing with directions to apportion the three year sentence between the two convictions. Such resentencing may be accomplished by order of the court without the appellant appearing before the court.

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


text:
    Terry Roy LONG, Appellant, v. STATE of Florida, Appellee.
    No. 75-786.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.

      Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was found guilty of breaking and entering with intent to commit a felony. The only issue presented by this appeal is whether the State presented sufficient evidence to establish appellant’s intent to commit a felony. From our review of the record we conclude that it did not. Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974).

Appellant’s conviction is reversed and . this cause is remanded with directions to enter a judgment of conviction for breaking and entering with intent to commit a misdemeanor and to re-sentence petitioner accordingly. White v. State, 274 So.2d 6 (Fla. 4th DCA 1973).

REVERSED AND REMANDED.

DOWNEY and ALDERMAN, JJ., concur.

CROSS, J., dissents, without opinion.


text:
    Ivory McCUTCHEON, Appellant, v. PEPSICO LEASING CORPORATION et al., Appellees.
    Nos. 75-1267, 75-1268.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Robert Orseck of Podhurst, Orseck & Parks, Miami, and Simons & Schlesinger, Hollywood, for appellant.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees Pepsico Leasing, Pepsi-co Truck Rental and Deatrick Leasing.
    Joel L. Kirschbaum of Berryhill, Avery, Schwenke, Williams & Scott, Ft. Lauder-dale, for appellee Firestone.
   PER CURIAM.

Upon review of the briefs, the record on appeal, and having had benefit of argument of counsel for the respective parties, we determine the trial court erred in admitting into evidence, over plaintiff’s objection, the nature and character of plaintiff’s prior criminal convictions. Jones v. State, 305 So.2d 827 (Fla.App.1975).

Accordingly, the final judgment and cost judgment entered in favor of appellee-de-fendant, Firestone Tire and Rubber Company, and against appellant-plaintiff, Ivory McCutcheon, is reversed and remanded for new trial, and the final judgment entered in favor of appellant-plaintiff, Ivory McCutcheon, and against the appellee-de-fendants, Pepsico Leasing Corporation, Pep-sico Truck Rental, Inc., and Deatrick Leading Corp., is reversed and remanded for new trial.

Reversed and remanded.

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Frank BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1542.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On September 30,1974, appellant pleaded guilty to the charge of selling or delivering a controlled substance on May 4, 1974, in violation of Section 893.13(l)(a)(2), Florida Statutes (1974). On February 3, 1975, the court entered a judgment of guilty and ordered that appellant be committed to the Division of Corrections for a term of five years. The court also ordered that after appellant had served two years of the five year term, he was to be placed on probation for three years.

At the time of the offense, May 4, 1974, the trial court did not have the authority to use the split sentence procedure unless punishment by imprisonment in the county jail was prescribed. However, at the time of sentencing the legislature had expanded the authority to use split sentence procedure to include felonies. Appellant contends that the trial court did not have authority to sentence him to a split sentence under Section 948.01(4), Florida Statutes, as amended effective July 1, 1974. We agree upon authority of Williams v. State, 332 So.2d 33 (Fla. 4th DCA 1976).

Accordingly, the sentence appealed from is reversed and the cause is remanded with directions to vacate the sentence and resen-tence appellant.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    Roy Allen WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1732.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Michael B. Swindle, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the briefs, record on appeal and oral argument we are of the opinion that the factual circumstances reflect that the state failed to accord defendant a speedy trial thereby entitling him to a discharge as a matter of right. See Rule 3.191(a)(1). Fla.R.Crim.P, More than 180 days had elapsed since defendant was taken into custody as a result of the conduct of the criminal episode giving rise to the crime charged. Boatman v. State, 306 So.2d 592 (Fla.2d DCA 1975); Benton v. State, 307 So.2d 198 (Fla.2d DCA 1975). See also State v. Benton, Fla.Sup.Ct., 337 So.2d 797, opinion filed Sept. 16, 1976. Moreover, the speedy trial period had run before any discovery demands had been made so that the efficacy of such discovery need not have been considered in so far as any question of “waiver” is concerned. Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla. 1974). Accordingly, the judgment and sentence appealed from is reversed with direction that appellant be released and forever discharged from further response to the charges herein.

REVERSED, with directions.

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


author: ALDERMAN, Judge.

text:
    In re the ESTATE of Harry C. RADON, Deceased.
    No. 75-1828.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Rehearing Denied Nov. 10, 1976.

      Reid Moore, Jr., and George C. J. Moore, Moore, Winkel & Sims, Palm Beach, for appellants-American Nat. Red Cross, Northwestern University and the Catholic Charities of the Archdiocese of New York.
    Larry Klein and Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee-Anita Angelo.
   ALDERMAN, Judge.

This appeal is from an order of the Circuit Court of Palm Beach County which finally determined the rights of the parties in a particular estate proceeding. The order adjudged that appellee not be required to return $15,000 in executrix’s commission she had received for services rendered in that capacity under a will declared void by the court as having been procured by the undue influence of the appellee over the testator.

In probate proceedings costs, expenses, fees and commissions may be allowed at the discretion of the court, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the losing party pay costs. Rule 5.090(a), Florida Probate and Guardianship Rules. The allowance of executrix’s commission in this case being discretionary with the trial court, the only issue on this appeal is whether there was an abuse of discretion.

We have found no Florida case which is directly on point. However, the Supreme Court in Watts v. Newport, 151 Fla. 209, 9 So.2d 417, 420 (1942), referring to the discretionary powers of probate courts to award or disallow costs and attorneys’ fees held that an executor, when offering a will for probate, is charged with the exercise of good faith. The court stated:

“An executor, by judicial interpretation of the Probate Act, supra, when offering courts of competent jurisdiction a will to probate, is by the terms of the Act charged with the exercise of good faith. If when offered the executor knew, or by the exercise of good faith could have known, that the will so offered to probate was a forgery, or that the testatrix thereof at the time of the execution was lacking in testamentary capacity, or an attempt to establish the authenticity of the will is made by perjured testimony, or for other unlawful acts amounting to fraud, then under said conditions and circumstances it becames [sic] the duty of the court in the exercise of sound discretion granted by the several provisions of the Probate Act, by an appropriate order to disallow the executor’s costs incurred in an unlawful attempt to obtain an order to probate the alleged will. Probate courts, or judges sitting as a probate court, by the terms of the Act are clothed with a sound judicial discretion in allowing or disallowing costs and can or may be reversed on appeal only for an abuse thereof.”

We must decide whether there was a duty on the part of the trial court, in the exercise of sound discretion, to disallow an executrix’s fee to appellee, who had been found guilty of having procured by undue influence the execution of the will under which she served. Stated another way, the question is whether the finding of undue influence on the part of appellee was sufficient to establish her lack of good faith in offering the will for probate. The Second District in In re Estate of MacPhee, 216 So.2d 489 (Fla.App.2d 1968), found that a trial court did not abuse its discretion in disallowing costs and attorney’s fees of an executor who had exerted undue influence on decedent and was the beneficiary of half of decedent’s estate. The court there recognized that the trial judge had the authority to determine, in his sound discretion, whether the executor was justified in offering the will for probate, even though unsuccessful, and to grant or withhold fees and costs accordingly. The court observed that it could not be seriously contended that the will was offered in such good faith that the trial court should be held to have abused its discretion. It was pointed out in McPhee (at 492) that the executor-proponent was the moving and guiding spirit behind the execution of the will by decedent, and it could not be contended that he was without knowledge of his own acts and doings or that his motives were altruistic. The same is true of the executrix in the present case.

The trial judge below made no finding that the appellee acted in good faith. In fact, such a finding of good faith would have been inconsistent with the court’s previous finding that she had wrongfully obtained the execution of the will. The facts of this casé take it outside the provisions of Rule 5.090(c), Florida Probate & Guardianship Rules, which provide that the proponent of a will in due form, being prima facie justified in offering the same for probate, shall receive his costs and attorney’s fees out of the estate, even though he is unsuccessful. Appellee was found by the trial court to have obtained execution of the will by use of undue influence. She is charged with knowledge of her own wrong-

ful acts and therefore it cannot be said that she was prima facie justified in offering the will for probate.

From the record in this case it can only be concluded that appellee was not acting in good faith. The personal representative of an estate should not be permitted to benefit from his or her own wrongful act. In re Limberg’s Estate, 281 N.Y. 463, 24 N.E.2d 127 (1939). Appellee would benefit from her own wrongful act if she were allowed to retain the $15,000 fee she received from the estate of Harry C. Radon. We hold that the trial court abused its discretion in denying appellants’ motion to require appellee to return the $15,000.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

MAGER, C. J., and CROSS, J., concur.


text:
    Brian Raxworthy ASHBY, Appellant, v. INDIAN RIVER STUD FARM, INC., et al., Appellees.
    No. 75-1837.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Young J. Simmons, Green, Simmons, Green & Hightower, P. A., Ocala, for appellant.
    William M. Cobb, Sullivan & Cobb, Vero Beach, for appellees.
   PER CURIAM.

Upon review and due consideration of the briefs, record on appeal and oral argument we are of the opinion that no reversible error has been made to clearly appear. Accordingly, the final judgment appealed is AFFIRMED.

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


text:
    CITY OF ORLANDO, a Florida Municipality, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. 75-2052.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Norman F. Burke, of van den Berg, Gay & Burke, Orlando, for petitioner.
    Jack L. McLean, Jr., Acting Gen. Counsel, and Gerald A. Williams, Staff Atty., Tallahassee, for respondent.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion, based upon the rationale set forth in Panama City v. Florida Public Employees Rel. Com'n, 333 So.2d 470 (Fla.1st DCA 1976) and School Bd. of Sarasota Cty. v. Florida Public Employees Relations Commission, 333 So.2d 95 (Fla.2d DCA 1976), certiorari does not lie at the present time. See also section 120.68(1), Florida Statutes,

CERTIORARI DENIED,

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


text:
    ORLANDO CENTRAL PARK, INC., Appellant, v. MASTER DOOR COMPANY OF ORLANDO, INC., a Florida Corporation, and Brody Construction, Inc., a Florida Corporation, Appellees.
    Nos. 75-2141 and 76-108.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Patricia C. Fawsett and George T. Eid-son, Jr., Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellant.
    Charles J. Collins, Jr., Steed & Collins, Orlando, for appellee-Master Door Co. of Orlando, Inc.
   PER CURIAM.

We consolidate for the purpose of review and disposition interlocutory appeals cases 75-2141 and 76-108.

Upon review of the record on appeal and briefs of the respective parties, we determine that the trial court erred in failing to grant appellant-defendant’s motion to dismiss appellee-plaintiff’s second amended complaint for it fails to state a cause of action sufficient to establish an equitable lien, or for the equity remedy of reformation. Accordingly, the order appealed in Case No. 75-2141 is reversed and the cause is remanded to the trial court with directions to dismiss appellee-plaintiff’s second amended complaint with prejudice. Case No. 76 — 108 is dismissed as rendered moot by the disposition of Case No. 75-2141.

Reversed and remanded, with directions.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    Jack MURRAY, Appellant, v. PLASTRIDGE, INC., and Paul W. Speicher, Appellees.
    No. 76-524.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Christopher Todd, Boca Raton, for appellant.
    Bruce Zeidel, Palm Beach, for appellees.
   PER CURIAM.

Upon review of the briefs and appellate record we are of the opinion that the appellant having been the prevailing party and the party recovering judgment was entitled to the taxing of costs in his favor. Jordan v. Reynolds, 154 So.2d 200 (Fla.3d DCA 1963); Blynn v. Hirsch, 136 So.2d 666 (Fla.3d DCA 1962); F.S. § 57.041. Accordingly, the order denying plaintiff’s motion to tax costs is vacated and set aside and the cause is remanded for further proceedings consistent herewith.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


text:
    Edwina ROSSI, Appellant, v. Ralph S. MADISON et al., Appellees.
    No. 76-721.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Anthony A. Balasso, of Miller, Zachman & Balasso, Pomano Beach, and Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.
    Marvin D. Michaels, Miami, for appellee-4245 Corporation.
   PER CURIAM.

We have reviewed the briefs and record and conclude that there were genuine issues of fact to be tried in regard to the rights of the appellant Rossi and the appellee 4245 Corporation.

Accordingly, the order appealed from granting summary judgment for 4245 Corporation is reversed and the cause is remanded for further proceedings.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    J. William CALDWELL, d/b/a Caldwell Beef Company, Petitioner, v. The MEAT COMPANY, Respondent.
    No. 76-1073.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Salvatore V. Fiore of DiGiulian, Spellaey, Bernstein, Lyons & Sanders, Fort Lauder-dale, for petitioner.
    Robert E. Murdoch of Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.


text:
    Polly KENNEDY, Petitioner, v. STATE of Florida, Respondent.
    No. 76-1393.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for petitioner.

      Philip S. Shailer, State Atty., and Linda A. Naze, Asst. State Atty., Fort Lauder-dale, for respondent.
   ALDERMAN, Judge.

Petitioner, after having been convicted in the County Court of Broward County, filed an appeal to the Circuit Court of the Seventeenth Judicial Circuit. The Circuit Court, upon motion of the State, struck petitioner’s brief and dismissed her appeal upon the ground that said brief was based on matters which were not established by the record on appeal.

The scope of our review in this case is limited to whether the Circuit Court departed from the requirements of law essential to the administration of justice. Zediker v. State, 218 So.2d 464 (Fla. 3d DCA 1969); State v. Katz, 108 So.2d 60 (Fla. 3d DCA 1959). Petitioner is not entitled to review by common-law writ of certiorari of a circuit court’s order rendered as an appellate court in a direct appeal from the county court, where no departure from the essential requirements of law is demonstrated by the record. P.G.A. National Golf Club v. Petty, 304 So.2d 141 (Fla. 4th DCA 1974).

The action of the circuit court in this case was within the scope of its jurisdiction and did not depart from the essential requirements of the law. In addition, we note that, since the appeal in question was dismissed as a result of mistakes made by petitioner’s court appointed counsel amounting to state action, petitioner will be entitled to seek review by habeas corpus. Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969); Hooks v. State, 250 So.2d 322 (Fla. 4th DCA 1971); Lyden v. State, 281 So.2d 591 (Fla. 2d DCA 1973). Therefore the Petition for Common Law Writ of Certiora-ri is DENIED.

CROSS and DOWNEY, JJ., concur.


text:
    CONTINENTAL INSURANCE COMPANY, Petitioner, v. Patricia FORNAIOLO, Respondent.
    No. 76-1191.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Jacqueline R. Griffin, of Wells, Gattis & Hallowes, Orlando, for petitioner.
    Larry Klein, West Palm Beach, and Maher & Overchuck, Orlando, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

MAGER, C. J., CROSS and ALDERMAN, JJ., concur.


text:
    Leo VOSKAN, Appellant, v. T. J. BEAUCHAMP, Jr., Appellee.
    No. 75-1410.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    James E. Foster, of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    Joseph M. Murasko, Fern Park, for appel-lee.
   PER CURIAM.

Appellant seeks reversal of an order granting new trial. We have considered the original and supplemental briefs, together with the entire record and find that appellant has failed to demonstrate reversible error.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

CROSS and DOWNEY, JJ., and FOGLE, HARRY W., Associate Judge, concur.


text:
    Roosevelt GLENN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1199.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1976.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This case comes before the court to review an order denying a motion to vacate and set aside the judgment and sentence pursuant to Fla.R.Crim.P. 3.850.

Appellant alleges that other convictions, obtained of him prior to the right to counsel rule set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were considered by the trial court in the case sub judice to enhance his sentence. Appellant further alleges that these prior convictions were uncounseled ones, that he was not financially able to obtain counsel, and that he did not waive his right to counsel. If all of these allegations are true, appellant would be entitled to relief. Wolfe v. State, 323 So.2d 680 (Fla. 2d DCA 1975); Howard v. State, 280 So.2d 705 (Fla. 4th DCA 1973).

The transcript of the sentencing hearing shows that the following statements were made:

THE COURT: Do you have his sheet here today, Mr. Bailiff? As I recall from the trial he does have two felony previous convictions, if I am not mistaken.
MR. BROWN: Yes sir, 1962 and 1968. THE COURT: One of them was a robbery reduced to grand larceny.
* * # * * *
THE COURT: The Court will adjudge the defendant to be guilty as charged in the Information for the crime of robbery. Taking into consideration his previous felony convictions, including similar type offenses for the crime of robbery, it is the judgment, order and sentence of the Court that he be confined in the Florida State Prison for twenty-five years. Give him credit for his county jail time .

From the above portions of the record, it appears that the trial court did in fact consider at least one felony conviction obtained of appellant prior to Gideon, supra. Therefore, we are of the opinion that appellant is entitled to an evidentiary hearing in which appellant will be given an opportunity to present evidence that 1) at the time of his 1962 conviction he was indigent and unable to employ an attorney and, in fact, uncounseled, and 2) he did not knowingly waive his right to counsel. If the prior conviction is determined to be invalid, then appellant should be resen-tenced without any consideration of the pre-Gideon conviction.

This case is remanded for proceedings in accordance with this opinion.

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


text:
    Edwina WHITNELL, Appellant, v. STATE of Florida ex rel. Roberta MacDONALD, Appellee.
    No. 76-565.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1976.
    Robert K. Hayden, Clearwater, for appellant.
    Harold S. Wilson, Clearwater, for appel-lee.
   PER CURIAM.

Appellee/petitioner commenced this quo warranto action on February 17, 1976 claiming right to the office of City Commissioner of Indian Rocks Beach.

As prescribed by Section 80.031, Florida Statutes (1975), the procedures to be followed in quo warranto are those as set forth in the Rules of Civil Procedure relating to mandamus. Rule 1.660 of these rules provides in material part as follows:

“(a) Petition For — Alternative Writ. Proceedings in mandamus in the circuit court shall be instituted by petition stating briefly the basis for the relief sought. If the petition makes a prima facie case, the court may either issue the alternative writ or an order to show cause why an alternative writ should not be granted returnable on a day certain.
(b) Defendant’s Return — When. After the alternative writ issues, the defendant shall plead thereto as he deems proper on or before the return day.' (Italics supplied.)

Here, the trial court elected to issue an alternative writ and made it returnable on April 1,1976. A default was entered by the clerk on March 24, 1976, more than twenty days after service of the writ but some seven days prior to the return day. A subsequent motion to set aside the default and for leave to answer the writ was denied by the court on March 31, 1976, the day before the return day, and final judgment was thereupon entered.

It was error to deny the motion to set aside the default and permit a plea since subsection (b) of the aforequoted rule permits a response to the writ on or before the return day. There was, indeed, one more day to respond.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

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


author: BOYER, Chief Judge.

text:
    PAGE HEATING & COOLING, INC., a Florida Corporation, Appellant, v. GOLDMAR HOMES, INC., et al., Appellees.
    No. AA-345.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1976.
    Theodore R. Bowers, Panama City, for appellant.
    Stephen H. Kurvin and John F. Daniel of Sale, Bryant, Daniel & Thompson, and Gary W. Tennyson, Panama City, for appellees.
   BOYER, Chief Judge.

Appellant, plaintiff in the trial court, is a materialman seeking to enforce a mechanics’ lien for improvements upon real property. Suit was filed against appellees Gold-mar Homes and Richard E. and Kathy A. Deck. After a default was entered against Goldmar Homes, the cause came on for trial between appellant and appellees, Richard E. and Kathy A. Deck. Although a jury heard all of the evidence presented, the trial court dismissed the jury at the close of the presentation of the evidence and rendered judgment in favor of the Decks, dismissing appellant’s cause of action with prejudice and ordering appellant to pay the Decks attorneys’ fees and court costs within 30 days of the date of the order.

A brief summary of the relevant facts is necessary for a full understanding of the legal issues involved. Appellant, an independent contractor engaged in the business of installing and maintaining heating and air-conditioning equipment, entered into a contract to furnish and install central heating in a home being constructed by Gold-mar Homes, Inc., which, although a defendant in the trial court, is not directly involved in this appeal. At the time appellant commenced work on the project (November 1, 1974), as well as on the date the work was completed (January 13, 1975), Goldmar Homes was the sole owner of the real property being improved. On March 13, 1975, Goldmar Homes conveyed the property by warranty deed to appellees, Richard E. and Kathy A. Deck. On April 14, 1975, appellant filed a claim of lien pursuant to F.S. 713.08. Appellees, Mr. and Mrs. Deck, sent a notice of contest of lien, dated May 13, 1975, to appellant. Appellant filed its action to enforce the lien on July 15, 1975.

Essentially, the facts of this case raise the issue of whether appellant is entitled to a lien on the property where the new owners (appellees) acquired a warranty deed to the property before appellant filed its claim of lien and where no notice of commencement was filed. Appellant primarily argues that since the claim of lien was recorded within 90 days after the final furnishing of labor and materials as required by F.S. 713.08(5), its claim of lien should be effective against purchasers who acquire their interest from the original owner within the said 90 day period. See Crane Co. v. Fine, Sup.Ct.Fla.1969, 221 So.2d 145. Appellees assert that their interest acquired by a warranty deed has priority over that of appellant’s who neglected to file its claim of lien until thirty days after the recording of the warranty deed. Appellees rely on two statutes to support the foregoing conclusion, to-wit: F.S. 713.05 which states that no lien under that section shall be acquired until a claim of lien is recorded, and F.S. 713.07(3) which states that any conveyance recorded prior to the time that a lien attaches any proceeds thereof has priority over the lien.

It is unfortunate that in the case sub judice, one of two relatively innocent parties, a materialman who furnished services and labor in good faith and owners of real property who purchased the property without notice of an unpaid materialman’s claim, must suffer. Our reading of the statutes indicates that the legislature has resolved this dilemma in favor of appellees by virtue of F.S. 713.07(3) as paraphrased above. Appellant may, of course, proceed on its default judgment against Goldmar Homes.

We have considered the remainder of the points raised by appellant on appeal and have found them to be without merit. Accordingly, the decision of the trial court is

AFFIRMED.

McCORD and SMITH, JJ., concur.

      . To be precise, appellant filed its claim of lien on the 91st day from the date of the final furnishing of labor and services, but, as the 90th day fell on a Sunday, the filing of the claim of lien on the next day was sufficient to constitute compliance with the statute.


text:
    Roland Charles Edward CARR, Appellant, v. STATE of Florida, Appellee.
    No. CC-232.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1976.
    Richard W. Ervin, III, Public Defender, and Thomas E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was tried on an information which charged in Count I manslaughter by intoxication and in Count II manslaughter by culpable negligence. He was found guilty by the jury and adjudged guilty of both counts. Appellant contends that the trial court erred in adjudicating him guilty of two manslaughter offenses when both involved only one death. Appellee contends that the two convictions should stand; that the single sentence was proper since both offenses arose out of the same criminal transaction.

This case does not involve the “single transaction” rule there was only one crime —manslaughter, and not two arising out of the same criminal transaction. Thus, appellant could be adjudged guilty of only the one manslaughter which the jury found he committed by both'of the two means specified. See Phillips v. State, 289 So.2d 769 (Fla. 2 DCA 1964).

Reversed and remanded with directions to enter an amended judgment and sentence adjudicating appellant guilty of the one crime of manslaughter. Such may be accomplished by order of the court without returning appellant to open court.

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


text:
    Eugene LAMB, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1384.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

The defendant appeals from an order revoking probation and imposing sentence upon his conviction of assault with intent to commit rape.

It is the defendant’s contention that the court erred in revoking his probation because the evidence adduced at trial by the state in support of a latter charge of grand larceny was not sufficient to satisfy the conscience of the court that the defendant had violated the conditions of his probation.

We have carefully considered defendant’s contention in the light of the record and the applicable law and have concluded that the contention of the defendant is without merit. Crossin v. State, 244 So.2d 142 (Fla.4th DCA 1971); Ivey v. State, 308 So.2d 565 (Fla.2d DCA 1975). No reversible error having been demonstrated the judgment and sentence are affirmed.

Affirmed.


text:
    Jorge Santiago MANCEBO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1931.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Max B. Kogen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant was charged in a three count information with having committed three separate crimes against three different persons. In count one he was charged with intent to commit involuntary sexual battery. Count two charged assault and battery and count three charged aggravated battery.

Appellant entered a negotiated plea of not guilty to a reduced charge of assault and battery on three separate counts. The court adjudicated him guilty on each of the three counts and sentenced him to serve one year in the Dade County Jail on each count, each sentence to run consecutively for a total of three years.

The point on appeal is whether the appellant was properly sentenced to serve three consecutive sentences of one year each in the county jail following the entry of pleas of- guilty to three separate first degree misdemeanors. Appellant contends that the sentences were in excess of the maximum authorized by law, in that the maximum possible sentence in the county jail is one year.

Appellant argues that Section 922.051 Florida Statutes (1975) and the cases of Dade County v. Baker, 265 So.2d 700 (Fla. 1972) and Smith v. State, 311 So.2d 775 (Fla.3d DCA 1975) are authority for his position. We cannot agree, therefore we must affirm the sentences.

The statute and cases relied upon apply to felony convictions and are not controlling in the instant case. Here we have three separate consecutive sentences of one year imposed for three separate misdemeanors which are authorized and in accordance with Section 775.082(4)(a) Florida Statutes (1975). If we said anything in Smith v. State, supra, which indicated that separate sentences for separate misdemeanor convictions could not be for a greater maximum period than one year in the county jail, we hereby recede from such position.

For the reasons stated and upon the authorities cited, we affirm the three consecutive one year sentences to be served in the county jail which were imposed by the court pursuant to the three separate misdemean- or convictions.

Affirmed.


text:
    Nancy A. ROBBINS, Appellant, v. Steven L. ROBBINS, Appellee.
    No. 75-1935.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    J. H. Kaiser, Hialeah, for appellant.
    Michael A. Pelle, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    David Mark SCHACHTER, Petitioner, v. The STATE of Florida, Respondent.
    No. 76-438.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott H. Seherker, Asst. Public Defender, for petitioner.
    Richard E. Gerstein, State Atty., and John P. Durant, Asst. State Atty., for respondent.

      Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, David Schachter, by petition for writ of certiorari seeks to review the affirmance by the circuit court (sitting in its appellate capacity) of his conviction for reckless driving. Petitioner contends that the trial court was without jurisdiction to try him because he had been arrested for traffic violations by a municipal police officer outside of his jurisdiction. We find this point has merit.

The arresting officer, Charles Ma-gil, a City of North Miami Beach policeman, was off duty, dressed in civilian clothes and driving his own car when he observed the defendant making a right turn on red without coming to a complete stop at a traffic light. This violation and other violations committed by the defendant during the ensuing chase took place within the North Miami city limits. Magil’s actions can only be sustained as the actions of a private citizen who has the right to arrest a person who commits a felony in his presence (i. e. in this case, a breach of the peace). See Section 316.016(3)(a), Florida Statutes (1975) and State v. Crum, 323 So.2d 673 (Fla.3d DCA 1975). Defendant’s initial traffic infraction in no way constituted a felony and the arrest by Magil was invalid as a private citizen. Therefore, the trial court was without jurisdiction to try the defendant.

Certiorari is granted, the order of affirmance is quashed and the cause is remanded with directions to dismiss this action against the defendant and to have him adjudicated not guilty.

So ordered.

      . City of St. Petersburg v. Calbeck, 114 So.2d 316 (Fla.2d DCA 1959).


author: BOARDMAN, Acting Chief Judge.

text:
    John CLAFFEY and Jo Ann Claffey, husband and wife, Appellants, v. Andrew P. SERAFINO, Appellee.
    No. 76-682.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1976.

      Steven L. Sommerfield, Venice, for appellants.
    John J. Dulmer, Jr., of Snyder & Dulmer, Venice, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellants on January 20, 1976 filed suit for ejectment against appellee. Appellee failed to answer the complaint, and a default was entered March 16, clearly more than twenty days after service of the summons and copy of the complaint. The final judgment was rendered the next day. On March 26 appellee moved for a rehearing and for relief from the final judgment. This is an appeal from the trial court’s order of April 7 vacating the final judgment and default.

The Florida courts have liberally applied Fla.R.Civ.P. 1.540(b) to set aside defaults to permit trial on the suits. See Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975). Nonetheless the burden is on the movant to establish both a legal excuse for failure to comply with the rules and a meritorious defense. E. g. Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964). The affidavit submitted by appellee to the trial court in support of his motion states that he did not understand his legal obligations attendant to service of process and receipt of the complaint. He submits that his misimpression that he would receive further notice of the proceedings was legal cause for his failure to answer the complaint. Prior to the institution of this action appellee was advised by his usual attorneys that they could not represent him in a dispute between him and appellants. He did not contact other counsel until several days after the entry of the final judgment. We believe that appel-lee’s failure to take action in these circumstances is not sufficient to meet the required showing of “mistake, inadvertence, surprise or excusable neglect” as provided in Fla.R.Civ.P. 1.540(b).

Furthermore the record does not reflect that appellee has a meritorious defense to the suit for ejectment. The mere concluso-ry statement in his motion to that effect is insufficient.

Accordingly we reverse and remand to the trial court with directions to vacate the order of April 7, 1976.

GRIMES and SCHEB, JJ., concur.