author: DANAHY, Judge.

text:
    Arlene A. DIACO, Appellant, v. Joseph Francis DIACO, Appellee.
    No. 77-329.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 1978.

      Wayne 0. Smith of Leavengood, Wallace & Smith, St. Petersburg, for appellant.
    Stephen W. Sessums of Albritton, Ses-sums & DiDio, Tampa, for appellee.
   DANAHY, Judge.

The wife appeals a final order which simultaneously established a foreign divorce decree as a Florida judgment and denied her petition to modify the same for an increase of child support. She contends that the record demonstrates a substantial change of circumstances because of an increase in the husband’s ability to pay coupled with an increase in the needs of the children. The husband stipulates that he has ample ability to pay an increased award of child support. But he argues that the wife failed to prove any increase in the children’s needs, and that she failed to carry the burden of clearly showing that the order denying modification represented an abuse of discretion on the part of the trial judge. On the record presented here, we agree with the husband.

The parties were married in 1963 and have three sons, ages 10, 8 and 6. In 1974, after the parties had been separated three years, a Georgia court entered its divorce decree incorporating the provisions of an agreement between them. Pursuant to the agreement and the decree, the wife received $325 per month alimony which had escalated according to the terms of the decree to $525 per month before the institution of this action. The decree further ordered the husband to pay $600 per month as child support for the three children; ordered him to maintain major medical and hospitalization insurance and to pay dental and orthodontic bills for the children; ordered him to maintain $80,000 in life insurance for the benefit of the children; and ordered him to provide for their college education.

Less than two years after the divorce, the wife brought this suit to establish the Georgia decree as a Florida judgment and to modify it to increase the amount of child support. She did not seek to increase the amount of alimony.

Early in the marriage the wife was a high school teacher but has not worked since her first pregnancy. Other than savings of some $1,500, she has neither appreciable assets nor debts. At the time of their divorce the husband, who had just begun the practice of medicine, earned approximately $15,000 annually. At the time of the hearing, the husband stipulated that his income for the past year was in excess of $80,000. Since the divorce, the husband has been current with all child support payments and other financial obligations ordered by the decree.

The major medical, dental and orthodontic bills for the children being paid by the husband average $91.66 per month. He has increased the required $80,000 life insurance for the benefit of all the children to $100,000 insurance on his life per child, ensuring not only their upbringing but their higher education as well. The life insurance premiums cost him some $3,100 per year in excess of the premiums he paid on the coverage ordered by the divorce decree. He has the children with him one month during the summer without any reduction in the child support payments. The husband has voluntarily paid for all extra items the wife has requested for the children including such special and nonrecurring items as encyclopedias, private piano lessons, private tutoring lessons, extra Christmas money, Tampa Bay Buc jackets and other articles of clothing, the boys’ hobbies, and return plane fare from New Jersey where they vacation with relatives. In the short time since the divorce, these voluntary payments have resulted in substantial extra expenditures by the husband which, during the most recent year, totaled $20,000.

At the final hearing, the testimony presented by the wife to establish the increased needs of the children centered on her financial affidavit containing a number of expenses which the husband’s attorney, after cross-examination, characterized as “wildly extravagant,” a view apparently shared by the trial judge. The wife admitted that some of her listed expenses were for her sole benefit and the evidence in several other respects failed to distinguish between the amounts necessary for the support of the children and herself. There was no evidence, other than the amount of the husband’s income, of the standard of living of the family at the time of the divorce. The trial judge was hindered in the fact-finding process because the wife paid most of her bills by cash and she produced no record of payments except for monthly utilities and the house payment. When viewed as a whole, the evidence heard by the trial judge does not specifically demonstrate what recurring needs of the children have increased and by what amounts they have increased since the recent divorce of the parties.

Matters regarding the support and welfare of minor children are subject to the continuing supervision of the court. Even where the parties have chosen to set forth their obligations in a written agreement, such an agreement is subject to modification upon a proper showing of substantial change in circumstances or financial ability of one or both of the parties or of the children occurring subsequent to the final judgment. Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Section 61.14, Florida Statutes (1977). The burden of proving the requisite change in circumstances is on the party seeking modification. Lamar v. Lamar, 266 So.2d 376 (Fla. 4th DCA 1972).

Relief in the form of modification rests in the sound discretion of the trial judge, which will not be disturbed absent a clear showing of abuse of that discretion. Riesner v. Riesner, 151 Fla. 8, 9 So.2d 108 (1942). It is not the function of this court in reviewing the order before us to re-evaluate the testimony presented to the trial judge or to now substitute our judgment for his. The trial judge weighed all of the evidence after observing the witnesses before him. Our duty now is to carefully review the record to see whether his judgment is in fact supported by competent evidence. Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).

The trial judge was correct in considering evidence not only of the increased ability of the husband to pay more support but also whether the needs of the children had increased in determining whether there was a change of circumstances sufficient to warrant an order increasing child support. There is no question that there is a substantial change for the better in the financial ability of the husband to pay more child support should he be ordered to do so. The wife does not argue that a substantial increase in the earnings of the husband alone warrants an increase in child support. Rather she argues that the husband’s voluntary extra contributions were in recognition of, and themselves establish, the children’s increased need. For that proposition, she cites to us the cases of Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970) and Siegel v. Zimmerman, 319 So.2d 187 (Fla. 3d DCA 1975).

Addressing this argument of the wife, we note that Jelke presents similarities to the case at bar. The wife brought a petition for modification to increase child support many years after the final judgment of divorce. Beyond the amount ordered for child support in the final judgment, the husband had voluntarily paid the wife for such recurring expenses as real estate taxes on the marital home in which the children were living, private school tuition for them, and a fixed additional amount for weekly child support. The husband’s ability to pay child support had increased substantially. Importantly, there the court stated that: “The uncontested evidence shows . that the needs of the children have increased.” Premised on this finding of fact, the court ruled that voluntary payments which continue over a sufficient period of time to meet specific needs do have some evidentiary value in tending to show a recognition by the parties to a previous agreement of substantially increased needs by the children, but the voluntary payments beyond the amount required in the final judgment are, themselves, not a sufficient basis for an order increasing the payments.

Unlike the court in Jelke, we do not find there is uncontested evidence showing the needs of the children have increased. Nor, in any event, do we find that the trial judge failed to give any evidentiary weight to the fact of voluntary expenditures made by the father in behalf of his children over the two-year period since the divorce.

In Siegel the record, unlike the record in the case at bar, clearly showed a change in circumstances both as to the increased financial ability of the father and the increased needs of the children. Because this was so, our sister court held that an agreed amount of support by the parties in anticipation of a future increase in the income of the husband could not bar the wife from seeking an increase in child support where their needs did, in fact, later increase. The court held that the denial of her request for an increase in child support constituted an abuse of the trial judge’s discretion. No such abuse of discretion has been demonstrated here.

When he exercised the broad discretion he necessarily has in this kind of case, we must presume the trial judge had the best interests of the children uppermost in his mind. On this record, the wife has not made that proper showing sufficient for us to find that the trial judge went beyond the permissible limits of his discretion when he denied the petition.

This, of course, is without prejudice to the wife to seek modification in the future should she desire and be able to make a proper showing of the actual increased needs of the children coupled with the then continuing increased ability by the husband to pay more.

The wife raises another point on appeal which we think has merit. By the provisions of Section 61.16, Florida Statutes (1977), the trial judge was authorized to order the husband to pay a reasonable amount for attorneys’ fees to the wife in bringing this modification proceeding. The wife says the trial judge abused his discretion when he refused to order any fee to be paid by the husband to her attorneys. We agree. Although we have found competent evidence to support the judgment of the trial judge with respect to an increase in child support, we do not believe he sufficiently considered the financial resources of both parties when he denied her request for attorneys’ fees.

The wife herself was unable to pay her attorneys’ fee. Instead, she paid her attorneys a part of their fee with money she obtained from her father for that purpose. She has neither separate income nor sufficient assets to otherwise pay an attorney to represent her and we see no reason why the willingness of her father to provide the necessary fee money to her should relieve the husband from a duty to provide such reasonable sums as will enable her to obtain representation equal to his own in these proceedings.

Even though she was unsuccessful in obtaining the relief she sought, the services of the attorneys were reasonably necessary to assist her in bringing the interests of these children before the court, and her efforts in doing so were certainly reasonable.

On remand, the trial judge should order the husband to pay such reasonable amount of the wife’s attorneys’ fee as he may find necessary because of the disparate economic needs and abilities as exist between the parties. Darcy v. Darcy, 285 So.2d 59 (Fla. 4th DCA 1973).

Those portions of the final judgment which establish the Georgia decree as a Florida judgment and deny the wife’s petition for modification are affirmed. That portion of the final judgment denying her request for fee money is reversed and the case is remanded for the purpose of determining an appropriate award.

Affirmed in part, reversed in part, and remanded.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . 233 So.2d at 409.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TUTTLE/WHITE CONSTRUCTORS, INC., Appellant, v. MELLON NATIONAL MORTGAGE CO. OF OHIO, etc., et al., Appellees.
    No. 77-1119.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 1978.
    John M. Wilson and R. L. Russell of Van Den Berg, Gay & Burke, P.A., Orlando, for appellant. .
    Adam G. Adams, II of Adams & Adams, Jacksonville, for appellees.
   PER CURIAM.

The judgment is affirmed. However, the order taxing costs included the cost of copies of depositions contrary to Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952); but see County of St. Lucie v. Browning, 358 So.2d 253 (Fla.4th DCA 1978). The case is remanded for the entry of a new order taxing costs which will exclude the cost of the copies.

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


text:
    Michael McCARTER, Appellant, v. STATE of Florida, Appellee.
    No. 78-992.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

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


text:
    Patricia Jean WARD and Alan Wayne Schmidt, Petitioners, v. STATE of Florida, Respondent.
    No. 78-1103.
    District Court of Appeal of Florida, Second District."
    Oct. 13, 1978.
    Ronald E. Fox of Fox & Rahter, St. Pe-tersburg, for petitioners.
    James T. Russell, State’s Atty., and John Larry Hart, Asst. State’s Atty., Clearwater, for respondent.
   PER CURIAM.

We deny the petition for a writ of certiorari on the authority of Marshall v. State, 362 So.2d 701 (Fla. 2d DCA 1978).

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


text:
    Able Franklin GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 11-225.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals a conviction of robbery while carrying a firearm. He contends that the trial court erred in failing to rule with unmistakable clarity that his confession was voluntarily given. Appellee argues that the judge’s conclusion of voluntariness appears from the record with unmistakable plarity. We agree with appellee and affirm.

At the pre-trial hearing on the motion to suppress, the appellant claimed the following: an officer had pulled a gun and had threatened to kill him if he didn’t confess; the officer promised him that if he confessed, this robbery charge and a prior charge would be dropped; after the arrest, his request to call his mother was denied; he stated to the officer that he did not want to make a statement; and he had received privileges as a result of the confession, but the privileges ceased when, at another defendant’s trial, he had failed to give testimony consistent with his confession.

The officer involved testified to the following: no threats were made; no promises to drop charges were made; nor did he recall appellant’s request to call his mother. Appellant’s confession stated that he had an eleventh grade education and that he understood his Miranda rights.

A colloquy ensued between defense counsel and the trial judge. Counsel argued that an implied threat made a confession involuntary. The trial judge responded:

I don’t question that, counselor. You’re talking about a one-on-one situation here. He says that he was threatened. He says he didn’t make any threats at all to him. Now, if you produce a witness in front of me that says that they were present and that he was threatened by the police, then the threat becomes credible and it becomes one that certainly I could take into consideration, but you’re asking me to accept his word over the officer’s word, where there is a conflict here and him saying that he was threatened and him saying that he wasn’t threatened, that he was explained all of his rights; he was given no threats whatsoever. That’s a jury matter, for the jury to weigh and consider his testimony, as well the officer’s testimony, as to the sufficiency of that confession.

The trial judge also addressed the issue of the alleged promises by stating:

Promise; what promise was made to him, that he could testify, as the officer said, in the McLaughlin case, that the charges would be dropped against him if he confessed. That runs contrary to all police— he couldn’t drop the charges once they were made any way. That would be up to the state attorney’s office to do that.

The colloquy ended with the following:

The Court: There never would be a confession or a — or the results of an investigation or lineup if a defendant was able to come into court and say that he did this only because of a promise that was made to him that he wouldn’t be tried on the charges made. You couldn’t convict any criminal in the United States if that were the law and if he were permitted to do that. You produce before me a witness that says that he made that promise and that — and the confession was induced only upon that basis and I’ll dismiss the charge right now. I’ll grant him a directed verdict if the only evidence is that confession that’s going to sustain a conviction, but I’m not going to do it simply upon his statement that he comes in here and says that this officer promised him if he would give the confession that he would drop the charges. It doesn’t make sense to me; is not logical. It doesn’t meet with any police criteria that I’ve ever heard of and for me to accept the credibility of that is a one-on-one situation and say that I believe this man and I disbelieve this officer, and that’s — that’s a matter for you to argue before the jury as to whether or not the confession was tainted by a promise and should not be regarded by the jury.
Mr. Woolfork: Is that Your Honor’s ruling?
The Court: Yes, sir.

The law is clear that a trial judge must make an initial determination of the voluntariness of a confession. A specific finding of voluntariness is required when a defendant alleges that threats or promises have induced his confession. A specific finding of voluntariness cannot be inferred from an unexplained denial of a motion to suppress. McDole v. State, 283 So.2d 553, 554 (Fla.1973). No specific finding need be made where such coercion is not alleged. Wilson v. State, 304 So.2d 119 (Fla.1974).

The judge’s conclusion that the confession was voluntary appeared from the record with unmistakable clarity as evidenced by the above quoted portions of the record. See Trolinger v. State, 300 So.2d 310 (Fla. 2d D.C.A.1974). Further, the trial court’s finding was amply supported by the evidence. The trial court was not required to credit the uncorroborated testimony of the appellant and discredit the testimony of the officer. Foreman v. State, 213 So.2d 754, 755 (Fla. 1st D.C.A.1968). Appellant’s second contention, that the evidence was insufficient to support his conviction, is without merit. The judgment of the trial court is AFFIRMED.

SMITH, Acting C. J., ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


text:
    TRI STATES FOODS, INC. a Florida Corporation d/b/a Westmoreland IGA Discounter and Cotton States Mutual Insurance Company, Appellants, v. Robert P. MATTHEWS and Edna L. Matthews, his wife, Appellees.
    No. LL-42.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1978.
    Lynn C. Higby and C. Richard Watson of Isler, Higby, Brown, Smoak & Watson, Panama City, for appellants.
    Roger W. Foote, Tallahassee, for appel-lees.
   PER CURIAM.

The order denying appellants’ motion for change of venue is AFFIRMED. This disposition moots appellees’ previously filed motion to strike.

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


author: HENDRY, Judge.

text:
    ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellant, v. Diane DUNKEL, Laura Cestone, Appellees. Diane DUNKEL, Individually, Appellant, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellee.
    Nos. 77-799, 77-801 and 77-976.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      Stephens, Schwartz, Lynn, Chernay & Brandy, Joe N. Unger, Miami, for Arkwright.
    Nachwalter, Christie & Falk and Jay M. Levy, Miami, for Dunkél.
    Rossman & Baumberger and Robert D. Peltz, Miami, for Cestone.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   HENDRY, Judge.

This is a consolidated appeal taken by appellant-defendant Arkwright-Boston Manufacturers Insurance Company (hereinafter referred to as Arkwright) from a final judgment and amended final judgment rendered pursuant to a jury verdict in favor of appellee-plaintiff Diane Dunkel, individually, and as administratrix of the Estate of Blanche Dunkel, deceased; and appellee-de-fendant, cross-plaintiff Laura Cestone, as administratrix of the Estate of Thomas Ma-guire, deceased. The judgments appealed from found insurance coverage in favor of appellees under a homeowner’s liability insurance policy issued by Arkwright. Additionally, Diane Dunkel has taken an appeal from an order granting Arkwright’s motion to set aside an award of attorney’s fees previously entered in the final judgment but deleted from the amended final judgment. For the reasons that follow, we affirm all judgments.

This cause commenced with a complaint filed by appellee Diane Dunkel, individually, and as Administratrix of the Estate of Blanche Dunkel, deceased, against Laura Cestone, as Administratrix of the Estate of Thomas Maguire, deceased, and Arkwright. The complaint alleged that Maguire was the brother of Blanche, that Diane was the daughter of Blanche and niece of Maguire, and that all three resided in the same household in Miami, Florida. The complaint further alleged that on December 21, 1973, Maguire fatally shot Blanche, seriously wounded Diane, and then shot himself to death. It was also alleged in the complaint that at the time of the shooting, Maguire “was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason.” By virtue of a homeowners liability insurance policy written by Arkwright in favor of those who resided in Blanche’s home and protecting those residents against liability caused by their acts, Diane sought damages against both the Estate of Ma-guire, as a direct beneficiary of the policy, and Arkwright, as the insurer.

Appellant Arkwright answered the complaint, inter alia, denying coverage based upon an “intentional act” exclusion found in the policy. Said exclusion stated that coverage did not apply “. . .to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

Appellee Cestone answered and filed a cross-claim against Arkwright asserting that at the time of the shooting, Maguire was insured under the homeowner’s policy and that Arkwright had wrongfully denied coverage. Arkwright denied liability in the cross-claim, again alleging that Maguire’s actions were excluded from coverage as being either “expected or intended from his standpoint.”

Subsequently, Arkwright filed a “motion for separate trial” seeking a bifurcated proceeding in which the issue of insurance coverage would be tried prior to a trial on the merits. Said motion was granted and the case thereupon proceeded to jury trial on the issue of coverage at which time the jury heard the following testimony: that on December 21, 1973, Maguire, who had lived with Diane and her mother for approximately four years, beginning shortly after Diane’s father’s death, attacked the two, shooting to death Blanche and seriously wounding Diane. During his four year stay at Blanche’s home, Maguire had never unpacked his suitcases, rarely ventured out of his room and spent a great deal of his time, with the lights turned off, reading medical books by flashlight. When Maguire did venture forth for short walks down the street he carried a stick or baseball bat for protection. All of his meals were served to him in his room, with Blanche always setting a tray outside his room. The tray would be taken by Maguire only after his sister Blanche (whom he apparently believed to be his mother) had departed.

It was reported to the jury that Ma-guire’s personal hygiene was, by all standards, atrocious. While in the home he wore only pajamas, refusing to have them cleaned. Additionally, he would not permit Blanche to enter his room and change the sheets or pillow cases. Maguire bathed only once a month — and then only in oatmeal. Prior to the time he shot his sister and niece, Maguire possessed a long and complicated history of medical ailments all relating to stress. Such ailments dictated twelve separate hospitalizations. While the original intendment was for Maguire to live with his sister, go to work and help the family financially, the record reveals that he had never possessed a job since his arrival at Blanche’s home. He had always been verbally abusive to his sister and niece, referring to the latter (whom he had on a prior occasion attempted to stab with a butcher knife) as that “little Nazi bastard.”

The jury heard two physicians testify as to Maguire’s mental capacity at the time of the shootings. Dr. Frederick Poppe, a specialist in interna] medicine and Maguire’s treating physician during some of his hospital stays, concluded that he was not insane, possessing sufficient mental capacity to understand that pointing a gun, pulling a trigger and by so doing releasing bullets into Blanche and Diane would cause personal injury, and possible death. Dr. Poppe readily admitted, however, that his opinion must be tempered by the fact that he is not a psychiatrist.

Dr. Harry Graff, psychiatrist, was called as a witness for appellee, Diane. While Dr. Graff had never seen or examined Maguire, he was asked a lengthy hypothetical question which included many of the aforede-scribed habits of Maguire. From that hypothetical, Dr. Graff concluded that at the time of the shootings, Maguire could not determine right from wrong and was legally insane. Dr. Graff did testify, however, that Maguire probably had sufficient mental capacity to realize that he was pointing a gun, discharging a bullet and firing at his victim, though Maguire could not comprehend that his actions would result in injury or death.

The jury, by finding for appellee Diane on her claim and appellee Cestone on her cross-claim implicitly determined that Ma-guire was insane at the time of the shootings and thus, incapable of “expecting or intending” the consequences of his act. Thus, Maguire’s actions were not within the exclusion contained in the policy. Final judgment was entered in accordance with the jury verdict. Said final judgment included an award of attorney’s fees in favor of Diane. Upon subsequent motion to set aside the award of attorney’s fees, the trial judge entered an order setting aside its former award. An amended final judgment was subsequently entered reflecting the judge’s denial of appellee’s attorney’s fees. Arkwright has taken this appeal from the final judgment and amended final judgment, while Diane, individually, and as the administratrix of the Estate of Blanche Dunkel, appeals from the order setting aside an award of attorney’s fees.

The sole issue that controls the main appeal is whether an allegedly insane individual possesses the requisite capacity to act “intentionally,” within the framework of an “intentional injury exclusion clause” found in an insurance policy. After examining the authorities submitted by counsel on the issue, we believe the better rule to be that an insane individual cannot be deemed to have acted “intentionally.”

Clearly, there was conflicting testimony presented before the jury concerning Ma-guire’s capacity to understand the nature and consequences of his act, his capacity to form an intent to harm, and his competency to distinguish right from wrong. From this conflicting testimony, the jury implicitly determined that Maguire was insane at the time of the shootings and, as there was substantial competent evidence to support the jury’s verdict, we will not disturb same.

Notwithstanding the jury’s determination that Maguire was insane, Arkwright contends that an insane individual can act “intentionally” even though said individual does not possess the capacity to comprehend the consequences of his act. Arkwright refers to the record in this case, and more particularly to the testimony of the two physicians, wherein it appears that both physicians are in agreement that Maguire had a sufficient mental capacity to realize that he was picking up a gun, pointing it at a victim and discharging a bullet. Necessary in Arkwright’s position is the view that the physical act can be separated from the mental processes involved in that act. We cannot accept that view.

As previously stated, we hold, as did our sister court in the similar case of George v. Stone, 260 So.2d 259 (Fla. 4th DCA 1972), that an insane individual cannot commit an intentional act within the meaning of an “intentional injury exclusion clause.” This view appears to be adhered to by the leading authorities on the subject. See 1A Appleman Insurance Law and Practice, § 482 (1965) and 10 Couch on Insurance 2d, § 41.667 (1962). We do note, however, that other jurisdictions have reached contrary views holding that an insane individual can nevertheless “intentionally” act even though the consequences of the act are incomprehensible to that individual. Colonial Life and Accident Insurance Company v. Wagner, 380 S.W.2d 224 (Ky.Ct.App.1964); Rider v. Preferred Accident Insurance Company of New York, 183 App.Div, 42, 170 N.Y.S. 974 (1918).

Arkwright’s reliance upon our decisions in Cloud v. Shelby Mutual Insurance Company of Shelby, Ohio, 248 So.2d 217 (Fla. 3d DCA 1971) and Hartford Fire Insurance Company v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977) is misplaced. Those cases stand for the generally accepted proposition that within the meaning of an “intentional injury exclusion clause” found in an insurance contract, coverage is denied where the insured’s act is deliberately designed or specifically intended to cause harm to a third party. Neither of the above cases dealt with the issue of insanity, nor should be applied to a situation wherein the actor-insured has been found to be insane.

In conclusion, as the jury implicitly found Maguire insane at the time of the shootings, his acts could not be characterized as “intentional.” Thus, the exclusionary clause found in Arkwright’s policy of insurance was not applicable.

Turning now to appellee Diane’s appeal, which challenges the correctness of an order setting aside an award of attorney’s fees, we set forth Section 627.428(1), Florida Statutes (1977), which provides that: “627.428 Attorney fee.—

“(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”

Contrary to appellee’s contention, her status as a named insured in the policy is not relevant. Sub judice, appellee filed suit in her capacity as a third party beneficiary to the liability provision of the homeowner’s policy which insured Maguire. While both Diane and Blanche were insureds under the homeowner’s policy by virtue of their being residents of the household, it was the status of Maguire as an insured committing a non-excluded act which was at issue. The learned trial judge so recognized and acted correctly in setting aside the award of attorney’s fees originally provided in the final judgment. See Roberts v. Carter, 350 So.2d 78 (Fla.1977) and Wilder v. Wright, 278 So.2d 1 (Fla.1973).

Other points raised by the parties have been considered by this court and have not been determined to amount to reversible error.

Accordingly, the final judgment, order setting aside attorney’s fees, and amended final judgment are hereby affirmed.

Affirmed.


text:
    Roberto SEMPE et al., Appellants, v. COORDINATED CARIBBEAN TRANSPORT, INC., et al., Appellees.
    No. 77-1190.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      Billings, Frederick, Wooten & Honeywell and Philip H. Blackburn, Orlando, for appellants.
    Daniels & Hicks and Sam Daniels, Thornton, Conroy & Herndon and John Edward Herndon, Jr., Miami, for appellees.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and PARKER, J. GWYNN (Ret.), Associate Judges.
   HENDRY, Judge.

The primary point for our determination in this appeal is whether the Circuit Court of Dade County erred in dismissing these six consolidated cases on the ground of forum non conveniens.

The causes of action dismissed were actions in negligence brought by appellants against appellees for the wrongful death of three of the parties and for serious injuries caused to the other parties when appellees’ tractor-trailer collided with the automobile in which the deceased and the injured parties were riding on a public highway in the Republic of Honduras on July 8, 1972.

Appellee, Coordinated Caribbean Transport, Inc. is a New York corporation. It has executive offices in New York City and its main base of operation in the United States is in Miami, Florida. Appellee Rock Island Motor Transit Company, is an Iowa corporation, conducting business in the State of Florida. Appellee, The American Motorist Insurance Co., is an Illinois corporation.

At the time of the accident all of the deceased and injured parties, except Roberto Sempe, were living in Honduras. Roberto was living in North Carolina where he was attending college.

Service was duly made upon the appellees in Dade County, Florida.

Following lengthy proceedings for pleadings and discovery, the causes became at issue. On September 28, 1976, the trial judge entered an order for pretrial conference. During the conference, upon motion of the appellees, an order was entered dismissing all of the causes of action on the ground of forum non conveniens. Additionally, the trial judge dismissed the three wrongful death actions upon a second ground, i. e., that the alleged administrator of the estate of Exalon Antonio Silva had no capacity to maintain the cause of action in this state. As to wrongful death case no. 74-19308, the trial judge further ruled that the non-appearance of Felicina Raudales Amador Silva, wife of the deceased, at her deposition mandated a dismissal of the case.

The order of dismissal is set forth fully as follows:

“THIS CAUSE CAME ON TO BE HEARD on the Motion of the Defendants. After hearing argument of counsel, completely reviewing the files, including the depositions, exhibits and affidavits and being otherwise fully advised in the premises, it is
“ORDERED AND ADJUDGED
“1. Case No. 74-19308, wherein Felici-ana Raudales Amador Silva, individually and as wife of Exalon Antonio Silva, Deceased; Luis Antonio Silva Raudales; Alma Criolla Silva Raudales; Roñal Silva Raudales; Ixain Silva Zuniga; Saulo Silva Zuniga; Noe Silva Zuniga; minor children by and through their mother and next friend, Felicina Raudales Amador Silva and Walter Camoriano, as Administrator of the Estate of Exalon Antonio Silva, Deceased are Plaintiffs and Coordinated Caribbean Transport, Inc., a New York corporation; Pablo Dominguez Leiva; Rock Island Motor Transit Company, an Iowa corporation; and The American Motorists Insurance Co., an Illinois corporation are Defendants, is hereby dismissed for failure of Felicina Rau-dales Amador Silva to present herself for deposition; on the further ground that Walter Camoriano, the alleged Administrator of the Estate of Exalon Antonio Silva, deceased, has no capacity to maintain this action and on the doctrine of forum non conveniens.
“2. Case No. 74-19306, wherein Isabel Agurcia Sempe, as parent and natural guardian of Fernando Sempe, deceased and Walter Camoriano, as administrator of the Estate of Fernando Sempe, deceased, are plaintiffs and Coordinated Caribbean Transport, Inc., a New York corporation, Pablo Dominguez Leiva, Rock Island Motor Transit Company, an Iowa Corporation and The American Motorists Insurance Company, an Illinois corporation, are defendants, as well as Case No. 74-19307 wherein Isabel Agur-cia Sempe, as wife of Rene Sempe, and Walter Camoriano as administrator of the Estate of Rene Sempe are Plaintiffs and Coordinated Caribbean Transport, Inc., a New York corporation; Pablo Dominguez Leiva; Rock Island Motor Transit Company, an Iowa corporation, and The American Motorists Insurance Company, an Illinois corporation, are Defendants, are dismissed since the alleged personal representative, Walter Camori-ano has no capacity to maintain these actions and on the doctrine of forum non conveniens.
“3. The remaining cases, Case No. 73-14773, wherein Javier Olachea is plaintiff, Case No. 73-13024, wherein Roberto Sempe is plaintiff, Case No. 73-13019, wherein Jose Mario Diaz is plaintiff, and the Defendants are Coordinated Caribbean Transport, Inc., a New York corporation, Rock Island Motor Transit Company, Inc., an Iowa corporation, and The American Motorists Insurance Co., an Illinois corporation are hereby dismissed because of the doctrine of forum non con-veniens. All of the plaintiffs, including the personal representative and all of the beneficiaries are residents and citizens of Honduras. All of the witnesses for the plaintiff with the exception of some medical witnesses in New Orleans, Louisiana and one medical witness in Miami, Florida, are residents and citizens of the Republic of Honduras. All of the witnesses of the defendants are residents and citizens of the Republic of Honduras. The accident took place in the Republic of Honduras. The cost of bringing these witnesses to Miami, Florida for a trial expected to last at least two weeks would be prohibitively expensive. The parties cannot compel the attendance of witnesses and this court would not have any contempt powers over the witnesses. Most of the witnesses speak only Spanish, the official language of the Republic of Honduras. Most of the medical reports and bills and other documentary evidence are in the official language of the Republic of Honduras. The personal representative would have capacity to sue in the Republic of Honduras. All of the cases can be brought in the Republic of Honduras. Therefore, based upon the decision of Southern Railway Company v. McCubbins, Fla.App.1967, 196 So.2d 512 and Faulkner v. Varig, Fla.App.1969, 222 So.2d 805, these cases are dismissed based upon the doctrine of forum non conven-iens.”

The able trial judge has set forth sound reasons why the trial of these cases should be held in Honduras.. However, his ruling is not in accord with a long line of Florida cases which restrict the application of the doctrine of forum non conveniens to cases in which neither party to an action is a resident of Florida and in which the causes of action arose outside of Florida.

In Adams v. Seaboard Coastline Railroad Co., 224 So.2d 797, 800 (Fla. 1st DCA 1969) the court discussed the various Florida decisions applying the doctrine of forum non conveniens. The applicable rule of law as stated therein is as follows:

“[T]he recognized law of this state [is] that if a transitory action is filed in a court of Florida between nonresident parties seeking to litigate a cause of action accruing in a foreign jurisdiction, the trial court is accorded a sound discretion in determining whether it should retain jurisdiction of the action, or dismiss it without prejudice to the right of the plaintiff to reinstitute the action in a more appropriate and convenient forum. In the exercise of such discretion, the trial court may consider whether the filing of the action constitutes forum shopping on the part of plaintiff; whether it constitutes undue harassment of the defendant by requiring him to litigate the action in a forum remote from where it accrued or where the defendant resides or maintains a place of business; and, whether the convenience of the parties and witnesses, in the interest of justice, requires the action to be litigated in a different forum. In the ultimate, however, it is seen that the application of the doctrine of forum non conveniens is restricted to the limited category of cases in which both parties to the action are nonresidents, and the cause of action sued upon arose in a jurisdiction outside of Florida. It is only after these two factors emerge and coalesce that the trial court is authorized to proceed to a determination of whether the criteria necessary to bring into play the doctrine of forum non conveniens have been met.”

In the recent decision of Houston v. Caldwell, 359 So.2d 858, (Fla.1978), our Supreme Court adopted the rationale and holding in Adams, supra. Insofar as venue is concerned, appellees occupy the same position as does a Florida citizen or a Florida corporation. It can hardly be contended that suing appellees at the place of its official headquarters and principal place of business in Florida is an imposition. Therefore, we hold that the doctrine of forum non conven-iens is not available as a ground for dismissal of these actions.

In response to the other reasons given in support of the order of dismissal, it is our opinion that based upon the facts sub judice, the administrator of the estate of Silva has the capacity to maintain the cause of action in this state. As for the non-appearance of Felicina Raudales Amador Silva for deposition, it is our opinion that dismissal of case no. 74-19308 was improper in that other plaintiffs were involved in that suit. Nevertheless, we feel that dismissal as to Felicina in her individual capacity might be proper and we therefore remand that portion of the order of dismissal with directions to hold a hearing on that issue.

Accordingly, the order of dismissal is hereby reversed and remanded with directions to hold a hearing and determine whether suit should be dismissed as to Fe-licina, individually.


text:
    Lawrence SHUPNICK, Appellant, v. PERSHING AUTO LEASING, INC., Appellee.
    No. 77-1193.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia M. Silver, Miami Beach, for appellee.
    Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Lawrence Shupnick, appellant, here appeals a summary judgment entered for ap-pellee in a breach of contract action.

In 1967, Shupnick entered into an agreement with Pershing Auto Leasing (Pershing). This agreement provided that Pershing supply Shupnick with two new fully insured and serviced Cadillacs per year for his use during the term of the agreement.

Thereafter Pershing became a wholly owned subsidiary of Pershing Industries, Inc., which entered into an agreement on May 14, 1969 with Shupnick. At that time Shupnick signed a release with respect to the 1967 agreement in consideration of Pershing Industries, Inc. entry into the transfer agreement. Nevertheless, the 1969 agreement became the subject matter of ensuing litigation and was rescinded and held to be invalid by the Circuit Court, affirmed by this Court. See Pershing Industries, Inc. v. Shupnick, 325 So.2d 410 (Fla. 3d DCA 1976). Subsequently, Pershing, which had ceased to be a wholly owned subsidiary of Pershing Industries, Inc., failed to furnish Shupnick with the Cad-illacs pursuant to the 1967 agreement and Shupnick filed the present action for breach of this agreement. Following pretrial hearing, Shupnick moved for summary judgment. Pershing also filed a motion for summary judgment on the ground that Shupnick had executed in its favor a release with respect to this 1967 agreement, which is the subject of this suit. The Circuit Judge entered summary judgment for Pershing and Shupnick appeals therefrom. We reverse.

Even though the May, 1969 agreement was rescinded and held to be invalid (see Pershing, supra), there was a total failure of consideration for the release, justifying its rescission. See Diesel Heat & Power v. Dixon Marine Indus. Pow. Trans., 232 F.2d 217 (5th Cir. 1956). We therefore conclude that there remain genuine issues of material fact to be resolved with regard to the alleged breach of the 1967 agreement. See Bethlehem Steel Corp. v. Centex Homes Corporation, 327 So.2d 837 (Fla. 3d DCA 1976). Accordingly, the summary judgment is reversed and the cause is remanded to the Circuit Court for further proceedings.

Reversed and remanded.


text:
    Linda Anne FISHER, etc., et al., Appellants, v. Daniel CREAMER and Samuel P. Sherdell, as a majority of the Trustees under the Last Will and Testament of Louis Liebman, Deceased, Appellees.
    No. 77-1636.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    L. J. Cushman, Miami, for appellants.
    Keith, Mack, Lewis & Allison and Edgar Lewis, Miami, for appellees.
    Before HENDRY, HUBBART  and KE-HOE, JJ.

       HUBBART, J., participated in the decision i: this case but did not hear oral argument.

   PER CURIAM.

This is an appeal by defendants below from a final judgment against them and in favor of the plaintiffs entered by the Circuit Court of Dade County, Florida, pursuant to a non-jury trial wherein the plaintiffs sued the defendants to impress a resulting or constructive trust upon certain described real property.

The two points relied upon by the appellants for reversal have been carefully considered in the light of the record, briefs and arguments of counsel, and we have concluded that no reversible error has been shown. Therefore the judgment appealed is affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    Hazel E. Wallman BARTH, Appellant, v. FLORIDA STATE CONSTRUCTORS SERVICE, INC., and Travelers Indemnity Company, Appellees.
    Nos. 77-2020, 77-2311.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      Ellis Rubin, Naples, for appellant.
    Lazan, Trute & Hauser and Melvyn Trute, Bay Harbor Island, Marvin I. Moss, North Miami, High, Stack, Lazenby & Bender, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HUBBART, Judge.

The central issue involved in this appeal is whether it constitutes reversible error for a trial court in a civil action to charge the jury on the law prior to the final arguments of counsel at the trial of the case. We hold that such procedure violates Fla.R.Civ.P. 1.470(b) and constitutes reversible error providing the complaining party timely objects thereto in the trial court. As there was no such timely objection in this case, we affirm.

The facts pertinent to the above issue are undisputed. The plaintiff Florida State Constructors Service, Inc. brought an action against the defendant Hazel Barth to foreclose on a mechanic’s lien, before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant Barth answered the complaint and filed a counterclaim against the plaintiff Florida State seeking damages for poor workmanship. The case went to trial non-jury resulting in a verdict and judgment in favor of the plaintiff Florida State. This court affirmed. Barth v. Fla. State Contractors Service, Inc., 302 So.2d 476 (Fla.3d DCA 1974). The Florida Supreme Court quashed this affirmance and remanded the cause with directions to require the trial court to conduct a jury trial on the defendant Barth’s counterclaim. Barth v. Fla. State Constructors Service, Inc., 327 So.2d 13 (Fla. 1976).

On remand in the trial court, the defendant Barth amended her counterclaim to join the plaintiff Florida State’s insurer, Travelers Indemnity Co., as a counterdefendant on the counterclaim. The case was tried by a jury with Travelers severed therefrom. At the conclusion of all the evidence at trial, the trial judge announced to counsel for the respective parties that it was his practice to charge the jury on the law and thereafter allow counsel to present their respective closing arguments to the jury. Both counsel stated that they were unaware of the judge’s procedure in this respect, but neither made any objection thereto. Thereupon, the trial court instructed the jury on the law and thereafter counsel for the respective parties presented their final arguments to the jury.

The jury returned a verdict in favor of the plaintiff Florida State and a final judgment was rendered in its favor. Subsequently, a summary final judgment was rendered in favor of Travelers based on the jury verdict. The defendant Barth appeals both judgments.

It is the established law of this state that in a jury trial on a civil action “[t]he court shall charge the jury [on the law] after the arguments [of counsel] are completed.” Fla.R.Civ.P. 1.470(b). It is reversible error for a trial court to deviate from this procedure and instruct the jury on the law prior to the closing arguments of counsel providing the complaining party timely objects thereto in the trial court. Keen v. State, 89 Fla. 113, 103 So. 399 (1925) (criminal conviction reversed because trial judge instructed the jury after the closing arguments of counsel in violation of a then existing criminal procedure statute). Absent such an objection, however, the error is not considered fundamental and is therefore not reversible. Smithie v. State, 88 Fla. 70, 101 So. 276 (1924) (criminal conviction affirmed where trial judge instructed the jury after the final arguments of counsel in violation of a then existing criminal procedure statute without objection by the defendant).

In the instant case, the trial court clearly committed error in instructing the jury pri- or to the closing arguments of counsel in violation of Fla.R.Civ.P. 1.470(b). There was no objection, however, made to this procedure by the defendant Barth in the trial court. Consequently, it is our view that she has waived the error for appellate review.

We have considered the other point raised by the defendant Barth on this appeal and find it to be without merit. Accordingly, the final judgments appealed from are hereby affirmed.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Candido GIARDINO, Appellee.
    No. 77-2157.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      Janet Reno, State’s Atty. and Paul M. Rashkind, Asst. State’s Atty., for appellant.
    Flynn, Rubio & Tarkoff, Miami, for ap-pellee.
    Before HUBBART and KEHOE, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   HUBBART, Judge.

The State of Florida appeals a trial court order dismissing a conspiracy count in a criminal indictment filed against the defendant before the Circuit Court for the Eleventh Judicial Circuit of Florida. It is the state’s contention that the conspiracy count was improperly dismissed because: (1) the defendant’s motion to dismiss said count was untimely filed, and (2) the said count sufficiently charges the crime of conspiracy under the laws of this state. We disagree and affirm.

On June 2, 1977, the defendant Candido Giardino along with two other co-defendants [Albert W. Tresvant, Sr. and Dante Dino, Jr.] were charged in a three count indictment returned by the Dade County Grand Jury with: (1) conspiracy to commit a felony, (2) bribery and (3) unauthorized compensation for official behavior, before the Circuit Court for the Eleventh Judicial Circuit of Florida. On June 23, 1977, the defendant Giardino filed a written plea of not guilty. He also filed a motion to dismiss the indictment on grounds which are not relevant here.

On August 25, 1977, the defendant Giar-dino filed a second motion to dismiss the indictment on the grounds inter alia that count I of the indictment was so vague that it failed to state the crime of conspiracy under the laws of this state. On August 31, 1977, the second motion to dismiss was heard by the trial court without objection by the state. Subsequent thereto, the trial court entered a written order granting the motion to dismiss as to count I of the indictment charging conspiracy, but denying the said motion as to counts II and III of the indictment. The trial court later heard and denied the first motion to dismiss. The state appeals the dismissal of the conspiracy count in the indictment.

I

We are first met with the state’s contention that the dismissal of the conspiracy count constitutes reversible error because the defendant’s motion to dismiss was untimely filed under Fla.R.Crim.P. 3.190(c). This issue has not been properly preserved for appellate review. The state’s argument is made here for the first time on appeal and was never brought to the attention of the trial court at any time. As such, the state has waived whatever technical objections it had under the above rule as to the timeliness of the motion to dismiss. See Jones v. Fox, 23 Fla. 454, 2 So. 700 (1887); G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976); Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); Frank v. Pioneer Metals, Inc., 121 So.2d 685, 688 (Fla. 3d DCA 1960). Moreover, we do not consider the claimed error to constitute fundamental error. See Fla.R.App.P. 6.16(a) (1962). Indeed, no error at all was committed in this regard as the motion was based on a fundamental ground and was therefore timely filed under Fla.R.Crim.P. 3.190(c). See Pittman v. State, 47 So.2d 691 (Fla.1950); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971).

II

We now come to the central issue involved in this appeal, namely, whether the conspiracy count of the indictment herein sufficiently states the crime of conspiracy under the laws of this state. Under the authority of Goldberg v. State, 351 So.2d 332 (Fla.1977), we hold that such conspiracy count fails to so state such a crime because it does not sufficiently inform the defendant of the charges against him.

The conspiracy count of the indictment herein charges in pertinent part as follows:

“[Beginning on the 1st day of November, 1975, and continuing through the 25th day of December, 1976, ALBERT W. TRESVANT, SR., CANDI-DO GIARDINO and DANTE DIÑO, JR. did unlawfully agree, combine, conspire or confederate with each other and with other persons to commit one or more felonies, to wit: BRIBERY, in violation of Section 838.015, Florida Statutes, or UNLAWFUL COMPENSATION FOR OFFICIAL BEHAVIOR, in violation of Section 838.016, Florida Statutes, or both, and in furtherance of said conspiracy ALBERT W. TRESVANT, SR., CANDIDO GIARDINO, DANTE DIÑO, JR. did felo-niously and corruptly request, solicit, accept or agree to accept for themselves or others a benefit, not authorized by law, to wit: money, good and lawful currency of the United States of America, from KO-ZICH AND KOZICH, INC., DON THOMAS KOZICH, RONALD JOSEPH FLORY or any of them for the performance of acts which the defendants CANDIDO GIARDINO, ALBERT W. TRESVANT, SR. and DANTE DIÑO, JR. represented as being or KOZICH AND KOZICH, INC., DON THOMAS KOZICH, RONALD JOSEPH FLORY or any of them believed to be within the official discretion of CANDIDO GIÁRDINO and ALBERT W. TRESVANT, SR. in their capacity as public’ servants, to wit: City Commissioners of the City of Opa-Locka, Florida, said acts being the voting by the defendants CANDIDO GIARDINO and ALBERT W. TRESVANT, SR. in favor of awarding a contract for the construction of a public works building for the City of Opa-Locka to KOZICH AND KO-ZICH, INC. or for the voting by the defendants CANDIDO GIARDINO and ' ALBERT W. TRESVANT, SR. in favor of approving change orders submitted by KOZICH AND KOZICH, INC. in connection with the construction of said building, or both, said conspiracy being in violation of Section 777.04(3) of the Florida Statutes. . . . ”

The above count is a classic example of what the Florida Supreme Court condemned in Goldberg, namely, confusing alternative pleading in a conspiracy indictment. There is confusion as to the participants in, as well as the unlawful object and nature of the charged conspiracy.

First, it is impossible to tell with whom the defendant Giardino allegedly conspired. The indictment charges that the participants in the charged conspiracy are the defendant Giardino, the co-defendants Tres-vant and Dino and “other persons.” The indictment fails to identify these “other persons.”

Second, it is impossible to determine the unlawful object of the charged conspiracy, namely, whether it was to violate (a) the bribery statute [Fla.Stat. § 838.015 (1977)], or (b) the unlawful compensation for official behavior statute [Fla.Stat. § 838.016 (1977)], or (c) both of those statutes. The indictment charges in the alternative each of the above three unlawful objects as being the object of the charged conspiracy.

Third, it is impossible to determine the nature of the charged conspiracy, to wit: whether the defendant Giardino in concert with his co-defendants (a) accepted, or (b) agreed to accept, or (c) requested or solicited, a certain sum of money from (a) Kozich and Kozich, Inc., Don Thomas Kozich, and Ronald' Joseph Flory, jointly, or (b) Kozich and Kozich, Inc., individually, or (c) Don Thomas Kozich, individually, or (d) Ronald Joseph Flory, individually, for the purpose of having the defendant Giardino and the co-defendant Tresvant vote as Opa Locka city commissioners in favor of (a) awarding a contract for the construction of a public works building for the City of Opa Locka to Kozich and Kozich, Inc., or (b) approving change orders submitted by Kozich and Ko-zich, Inc. in connection with the construction of the above-mentioned public works building, or (c) both awarding the above-stated contract and approving the above-stated change order. The indictment charges in the alternative each of the above multitude of acts as constituting part of the charged conspiracy. As such, the indictment is mired in hopeless confusion.

The Florida Supreme Court in Goldberg v. State, 351 So.2d 332 (Fla.1977), struck down a similar conspiracy indictment as failing to sufficiently charge the crime of conspiracy under Florida law because of the multiplicity of alternative pleading allegations concerning the participants in, and the unlawful object and nature of the charged conspiracy. Although there are technical differences between the indictment in Goldberg and the indictment herein, it is clear that the confusion which the Supreme Court found so objectionable in the Goldberg indictment is the same generic confusion which is found in the instant indictment. Accordingly, the trial court was eminently correct in dismissing the conspiracy count herein against the defendant Giardi-no.

Affirmed.

      . “Unless the court grants him further time, the defendant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based upon fundamental grounds, every ground for motion to dismiss which is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived.” Fla.R.Crim.P. 3.190(c).


text:
    J. A. CANTOR ASSOCIATES, INC., a Florida Corporation, Appellant, v. Sam BRENNER, Appellee.
    No. 77-2544.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      A. John Goshgarian, Miami and Howard J. Hopkins, for appellant.
    Joseph Pardo, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The defendant, J. A. Cantor Associates, Inc., appeals from a final judgment entered upon a jury verdict awarding plaintiff-ap-pellee Sam Brenner the balance he claimed was due him as a salesman in J. A. Cantor’s real estate brokerage office.

Appellant Cantor presents five points. The first urges that the evidence reveals that the action was barred by the statute of limitations and, therefore, that the trial court erred in refusing to direct a verdict for the appellant. The second point urges that the court mistakenly instructed the jury upon plaintiff-appellee’s right to recover an exact amount if the jury found for the appellee. The third urges error upon the court’s refusal to give an instruction tendered by the appellant. The fourth point urges that the court should have entered a directed verdict for the appellant because the agreement sought to be enforced was unlawful and unenforceable. The fifth point urges that the final judgment is not supported by any reasonable view of the evidence.

We have examined the record in the light of these points and find that none of them presents reversible error.

Concerning the statute of limitations, the record shows evidence which, if believed by the jury, would support a jury finding that, within the period of time covered by the applicable statute, the appellant made fraudulent representations about the circumstances surrounding the payment of the brokerage payments, so that the appel-lee was misled into believing that he would receive his share of the commission. Cf. the principle of law in Gerstel v. William Curry’s Sons Co., 157 Fla. 216, 25 So.2d 560 (1946).

Appellant’s points claiming error upon the instruction given and the one refused do not present error for -the reason that the instruction given was proper inasmuch as the amount of the claimed commission was in no way contested by conflicting evidence and, therefore, the jury was properly told that if it found for the appellee, the amount would be determined by the written instrument involved. Cf. the principle of law in Community Cablecasting Corp. v. Daniels & Associates, Inc., 215 So.2d 17, 20 (Fla. 1st DCA 1968).

Likewise, we find no error in the refusal to give the appellant’s requested instruction on which error is assigned, because the requested instruction did not properly state the law. See Wells v. State, 270 So.2d 399, 403 (Fla. 3d DCA 1972).

Points four and five need not be discussed further inasmuch as they are clearly refuted by the record before us.

Affirmed.

      . The record reveals testimony of the appellee which, if believed by the jury, would strongly indicate that the appellant’s repeated statements and representations assured the appellee he would eventually be paid the brokerage fee he claimed he was due.


text:
    Bobby H. BROWNLEE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1848.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.

      Bobby H. Brownlee, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: CALOGERO, Justice. DENNIS, J., DIXON, Justice

text:
    STATE of Louisiana ex rel., Craig S. COCO, Juvenile.
    No. 62990.
    Supreme Court of Louisiana.
    Sept. 25, 1978.

      W. Miriam G. Waltzer, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for State of Louisiana plaintiff-respondent.
   CALOGERO, Justice.

We granted writs in this case upon application of an incarcerated juvenile who complains that both the district and the juvenile courts of the Twenty-Fourth Judicial District Court, Parish of Jefferson, have declared that they are without jurisdiction over him, leaving him without a judicial forum to hear his writ of habeas corpus, discovery pleadings, motions for preliminary hearing and motion to suppress a confession. We must determine the court of appropriate jurisdiction, an undertaking which requires us to answer questions of first impression under the 1974 Louisiana Constitution.

On August 24, 1978 Craig S. Coco, described as sixteen years old in pleadings filed in the lower courts by his court appointed counsel, was arrested and booked by sheriff’s deputies with first degree murder and aggravated rape, offenses he is alleged to have committed upon a twelve year old female. Because of the nature of the offenses with which he was booked, bond was denied him by a district judge before whom he was brought on the day following his arrest. After bond was denied counsel was appointed on August 25, 1978 and the pleadings noted above were quickly filed, first in the district court and then in juvenile court. While the pleadings of course speak for themselves, the securing of a hearing on the motion to suppress a confession appears to have been Coco’s foremost objective. The significance to defendant of an early hearing on the latter motion will become evident in the discussion which follows.

Constitutional rights and privileges accorded adult offenders are equally applicable in the case of juveniles. State in the Interest of Dino, 359 So.2d 586 (La.1978). See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It is thus clear that Coco is entitled to a determination of whether confessions were procured from him in violation of the privilege against self-incrimination conferred upon accuseds by the United States and Louisiana Constitutions. Either the juvenile or the district court then, must have jurisdiction to entertain defendant’s pleadings and make the determination sought.

The matter is to be resolved by the proper interpretation and application of Article V, Section 19, of the Louisiana Constitution of 1974 and R.S. 13:1570.

Article V, § 19 provides:

“Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases.”
R.S. 13:1570 provides:
“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
J¡e Jk ¡(c Sic 5k s}c
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.”

In the instant case defendant has been booked; he has not been formally charged, by bill of information or indictment. The offenses are first degree murder, a capital offense now and at the time the 1974 Constitution was adopted, and aggravated rape, an offense capital in 1974 but no longer so.

The two pertinent inquiries are: 1) Are first degree murder and aggravated rape offenses which Article V, § 19, properly construed, declares to be outside the purview of juvenile court (“special juvenile procedures which shall be provided by law”), and thus within the jurisdiction of the district court? and 2) Even assuming an affirmative answer to the foregoing, does the district court’s jurisdiction vest before a formal charge, by bill of information or grand jury indictment, has been lodged?

1. First Degree Murder, Aggravated Rape and the Proper Jurisdictional Forum

First degree murder is clearly a capital offense the commission of which exposes the perpetrator who is older than fourteen to prosecution in the district court. However, the question of the jurisdictional forum wherein the fifteen or sixteen year old charged with aggravated rape is to be prosecuted is more difficult. The Constitution (Article V, § 19) speaks of “capital offense or attempted aggravated rape” when it excepts crimes from juvenile court jurisdiction. In 1978 (when the Constitution was written), during 1974 (when approved by the people), and at midnight on December 31, 1974 (when the Constitution took effect), aggravated rape was a capital offense: R.S. 14:42 (as it read prior to its amendment by Act 343 of 1977). Thereafter, however, the United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) declared the death penalty for aggravated rape unconstitutional and the Louisiana legislature responded by Act 343 of 1977, amending the aggravated rape statute, La. R.S. 14:42, to provide a penalty of life imprisonment without benefit of parole, probation or suspension of sentence. Thus aggravated rape, at the present time, and at the time of commission of the offense is not a capital offense. This presents the incongruous possibility that aggravated rape falls to the jurisdiction of the juvenile court while the lesser included offense of attempted aggravated rape (never a capital offense), because specifically alluded to in Article V, § 19, is an offense over which the (adult) district court has jurisdiction.

Besides the incongruous resolution just mentioned, which would depend on a strictly literal interpretation and result in illogical consequences, the only alternatives are to remove attempted aggravated rape (along with aggravated rape) from the jurisdiction of the district court, notwithstanding the clear contrary provision in the Constitution, or to construe the Constitution’s language “capital offense” to specifically include aggravated rape, though not now capital, because it was capital at the time the Constitution was written and became effective.

We are of the opinion that an interpretation resulting in continued district court jurisdiction for the crime of aggravated rape is in keeping with the intent and purpose of the drafters of the constitutional provision. Prior to the United States Supreme Court’s invalidation of the death penalty for the offense of aggravated rape, it was unnecessary to separate that crime from other capital offenses since all such crimes were reserved to the district court’s jurisdiction. The designation of attempted aggravated rape as the only enumerated non-capital crime (by a juvenile fifteen or over) subject to district court jurisdiction clearly evidences the intent that the completed offense, aggravated rape, be reserved for the district court regardless of whether it is capital, as it was in 1974, or non-capital, as it thereafter became and now is.

Our determination that jurisdiction over the offense of aggravated rape committed by the juvenile fifteen or over falls to the district court should not be construed to apply to any other crime capital on the effective date of the 1974 Constitution which may become non-capital, since a de-cisión with respect to any other offense is unnecessary to our decision in this case.

2. Vesting of District Court Jurisdiction for District Court Offenses by Juveniles

Having resolved that jurisdiction vests in the district court for first degree murder and aggravated rape when committed by a juvenile fifteen years or older, we must determine the time when jurisdiction attaches. Here defendant has not yet been indicted for first degree murder or aggravated rape, nor charged by bill of information for attempted aggravated rape. He has, however, been booked with the two former crimes.

R.S. 13:1570 as last amended in 1975 (quoted hereinabove), implements Article V, § 19 of the 1974 Constitution. It recites that jurisdiction no longer vests in the juvenile court in regard to certain juveniles at such point in time as they are “charged”, which we take to mean formally charged in court by indictment or bill of information.

The statute, however, is applicable only if it accurately reflects the meaning of the pertinent constitutional language (which is “alleged to have committed”); the task of ascertaining that meaning is reserved to this Court. In the constitutional language is defendant here “alleged to have committed” the pertinent crimes? A literal application of the imprecise term “alleged” would allow the instant vesting of adult court jurisdiction upon the substantiated or unsubstantiated allegation or accusation by a lay witness, or by a booking (or overbooking) police officer. We cannot believe that such was the intention of the redactors of the provision, whose very inclusion in the Constitution of special juvenile procedures in criminal matters indicates the desire to provide distinctive treatment of children except in cases where the particular nature of a criminal offense was thought to merit exposure of older children to adult procedures and adult sanctions. Rather we believe the reasonable and appropriate interpretation of this language, coincidentally consistent with R.S. 13:1570, is that “alleged to have committed” a crime means formally charged with a crime, by indictment or bill of information.

Thus we conclude that both first degree murder and aggravated rape are adult court crimes for the juvenile fifteen or older, but that jurisdiction over the incarcerated juvenile is in the juvenile court until an indictment is found or, where appropriate, a bill of information is filed. In the instant case therefore jurisdiction was properly in the juvenile court at the time defendant applied for relief, and is so at the present time.

In addition to the two major issues herein decided, certain procedural matters, including a motion to declare this case moot filed by the state, and a contempt rule filed by defendant, require discussion and resolution.

Defendant’s writ sought in its prayer an order “staying and suspending any further proceedings, including a presentment to the grand jury in connection with the juvenile, Craig C. Coco until the further orders of this Court.” On the date filed a justice of this Court granted a “stay order” “until the Court acts. . . . ” Later the full Court acted, granting the writ “with stay order.”

Thereafter at 4:07 p. m. on Monday, September 11, 1978, the day before the oral argument scheduled in this Court, the state filed a bill of information charging defendant with attempted aggravated rape. On Tuesday, September 12,1978, the state, pri- or to argument, filed a motion to have this Court declare the matter moot for the reason that the attempted aggravated rape bill of information constitutionally vested jurisdiction over this juvenile in the district court.

On Friday, September 15,1978, this Court reacted to the state’s mootness plea and to a state motion filed after oral argument seeking clarification of the Court’s stay order of September 5,1978 by asserting in an order that the stay order stayed and suspended both grand jury and other court proceedings (but not the state’s investigation and/or collection of evidence in the case) and by quashing the attempted aggravated rape bill of information as having been filed in contravention of the Court’s stay order.

We affirm the determination implicit in our order quashing the bill of information that the mootness plea is overruled. The bill of information filed in contravention of our Court order is null, void and of no effect.

Following oral argument herein, defendant filed a motion praying that the District Attorney of Jefferson Parish and two of his assistants be held in contempt of this Court for having filed and/or allowed the filing of the bill of information on September 11,1978 notwithstanding the extant order of the Court staying further court proceedings.

While the two stay orders were general rather than explicit, the import thereof should have been evident from the prayer contained in the writ applications. The prosecutor’s conduct comes dangerously close to contempt of this Court’s stay order. A reasonably attentive attorney would have surely attempted to discern the import of our stay order by reviewing the pleadings and reading the applicant’s prayer. There are factors, however, which prompt us to dismiss the motion for contempt. These include the facts that the terms of the stay orders were general and non-specific, the state’s prosecutors expressed the state’s disposition to withdraw the bill of information, defendant has suffered no prejudice in light of our having quashed the bill, and, not the least of these, we are unable to conclude that the bill was filed with an intent to disregard the orders of this Court.

Finally we choose to discuss another matter which relates to the procedure which may be followed hereafter in this case. Although defendant has filed no pleading in this Court which expressly attempts to enjoin or suppress use of his confession in grand jury proceedings which may hereafter commence, he has argued that an early determination of the legality vel non of the confession may affect the issue of ultimate jurisdiction. He appears to anticipate that an early ruling pronouncing that the confession was illegally obtained may result in its being barred from use before the grand jury and consequently may diminish the strength of the presentation sufficiently to prevent the finding of a true bill. Because the issue is not before us, we will not here decide whether, armed with a determination of the confession’s illegality, Coco could prevent its use by the district attorney before the grand jury. See C.Cr.P. art. 442. At most we are called upon to decide whether we should stay grand jury proceedings once this case in its present posture is finally resolved by us. Under the circumstances prevalent here we determine that we will not stay such grand jury proceedings.

Decree

For the foregoing reasons, the ruling of the district court declining jurisdiction is sustained, the ruling of the juvenile court declining jurisdiction is reversed, and the case is remanded to the juvenile court for further proceedings. The stay orders herein issued are lifted upon finality of this decision in this Court.

RULING OF DISTRICT COURT SUSTAINED; RULING OF JUVENILE COURT REVERSED; CASE REMANDED TO JUVENILE COURT.

DIXON, J., dissents with reasons.

DENNIS, J.,

concurs in part and dissents in part, agreeing with the opinion of the court except for its conclusions on the issue of contempt of this court. In this respect I dissent for the reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent from two parts of the majority opinion.

First, it appears to be clear error to hold that the district court does not have jurisdiction over a sixteen-year-old child arrested and booked for first degree murder and aggravated rape.

Article 5, § 16 of the Constitution of 1974 provides:

“Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters. It shall have exclusive original jurisdiction of felony cases and of cases . . . ”

The constitutional provision relied upon by the majority is Article 5, § 19:

“Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures . . . ”
(Emphasis added).

The majority holds that district court jurisdiction for juveniles charged with a capital offense does not “vest” until a district attorney files a bill of information, or a grand jury returns an indictment. No authority is cited for the conclusion, except an unsupported belief in the intention of the redactors. To the contrary, the redactors of the present Louisiana Constitution and its predecessor never once indicated in any provision, nor did the legislature in any statute, that the juvenile court would have jurisdiction over capital crimes committed by persons over fifteen years of age. The Constitution does not provide that the district courts have jurisdiction over minors charged with capital offenses when they are indicted or when they are accused in a bill of information filed. The Constitution provides that the district court has jurisdiction over all criminal cases and exclusive jurisdiction over all felonies, except as otherwise provided. It is otherwise provided that the juvenile court shall not have jurisdiction over a person over fifteen “who is alleged to have committed a capital offense . ” When a child is arrested, booked and jailed for murder, he is “alleged to have committed a capital offense.” The juvenile court no longer has jurisdiction over him.

The other point on which I disagree with the majority is the benevolent manner in which it excuses the violation of a stay order by this court. The district attorney never said his violation was due to inattentiveness. He said, rather, he was “helping the defendant.” He used his action in filing a bill of information to support a motion to dismiss defendant’s pleadings in this court as “moot,” on the morning defendant’s applications were to be heard in this court. If serious about his “disposition” to withdraw the bill of information when his violation of the stay order was pointed out to him, the district attorney could have dismissed. Instead, it was necessary for us to .quash the bill of information five days later. I would not prejudge the matter without a hearing, but I cannot conclude from what is before this court, as does the majority, that the bill of information filed in violation of our order was not filed “with an intent to disregard the orders of this Court.”

      .In pleadings filed in this Court, Coco’s counsel strenuously argues that Coco’s present status may be considered that of a “calendar juvenile,” one who, by virtue of his age, meets the definition of “child” set forth in R.S. 13:1569 but whose exact age has not been judicially determined. It is urged that jurisdiction over Coco should be found to vest initially in the juvenile court for purposes of this age determination, to the end that it may be decided whether jurisdiction would vest in the district court.
      We need not determine the merit of this argument, in view of the fact that Coco’s age of sixteen is admitted in pleadings in the lower courts and in this Court. In arguing motions before the juvenile court, Coco’s counsel stated his date of birth to be January 29, 1962 and asserted that the court could judicially notice that Coco is sixteen.

      . Article 933 of the Code of Criminal Procedure defines a capital offense.
      “Except where the context clearly indicates otherwise, as used in this Code:
      ******
      “(2) ‘Capital offense’ means an offense that may be punished by death.”

      . Coco concludes that this situation is precisely the result of the change in the status of the crime of aggravated rape to a non-capital offense. Based on this conclusion, it is argued that constitutional guarantees of due process and equal protection are denied when jurisdiction of the greater offense is in the juvenile court but jurisdiction of the lesser, included offense remains in the (adult) district court. Resolution of this issue raised by Coco is obviated by our rejection of a constitutional interpretation which would have such a result.

      .On the effective date of the 1974 Constitution, in addition to aggravated rape, there were three other capital crimes: first degree murder, aggravated kidnapping and treason. At present, these three crimes remain capital offenses.

      . Article I, Section 15 of the Louisiana Constitution of 1974 provides, in pertinent part, that:
      “Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.”

      . But, see our discussion hereinafter relative to this Court’s quashing a bill of information filed after our stay order was issued.

      . We hasten to point out that jurisdiction over true habeas corpus proceedings does indeed lie in the district court. Article V, § 2, Article V, § 16, Louisiana Constitution of 1974. And to the extent that defendant’s writ in district court was for habeas corpus, though prompted principally by a desire to determine the proper court in which to have pleadings in the criminal case entertained, the district court had jurisdiction to hear defendant out, and to determine if defendant was being in any respect illegally detained. Inasmuch as we have now determined the appropriate jurisdictional court in this criminal case, it would serve no purpose to remand to the district court to hear the habeas petition simply to rule as we are here ruling that proceedings for the present at least in this case should be in juvenile court.

      . But see State v. Anderson, 254 La. 1107, 229 So.2d 329 (1969); rev'd on other grounds, 403 U.S. 949, 91 S.Ct. 2288, 29 L.Ed.2d 861 (1971).


text:
    Lawrence WILSON, Individually, etc., et al. v. Charles Henry VOSS, Jr., et al.
    No. 62856.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Lawrence Wilson, Individually, etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. • 361 So.2d 312.

Denied.

TATE, DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Newton J. MOSSOP.
    No. 63063.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: State of Louisiana applying for writs.

Writ denied.

SANDERS, C. J., would grant the writ.


text:
    STATE of Louisiana v. Junior NORA.
    No. 63060.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Rockwood Insurance Co. applying for remedial writs.

Writ denied.


text:
    STATE of Louisiana v. William L. DANIELS.
    No. 63058.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: William L. Daniels applying for writ of certiorari, prohibition, mandamus.

Writ denied.


text:
    STATE of Louisiana v. Robert O’BRIEN, John O’Neill, John Berman, David Grossfeld, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badolato.
    No. 63051.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Robert O’Brien, et al., applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Michael MANSO, a/k/a Patrick Fusillo, Michael Vierthaler, Edward Kenny, a/k/a Dale Roberts, Steve Hill and Jeffrey Roberts.
    No. 63049.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Michael Manso, et al. applying for writs of certiorari, mandamus and prohibition.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    Roy CHENIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 63046.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Roy Chenier applying for supervisory and remedial writs.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Gary R. MOORA.
    No. 63045.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Gary Moora applying for writs of review.

Denied. Adequate remedy by appeal in the event of conviction.


text:
    Jacqueline Otto VOLZ v. James Travers VOLZ.
    No. 63041.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: James Travers Volz applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Caddo.

Writ denied.


text:
    Cecil Edward BOOTHE v. UNITED TANK & IRON WORKS, INC.
    No. 63040.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Cecil Edward Boothe applying for certiorari to the Court of Appeal, Third Circuit. Parish of Catahoula, State of Louisiana.

Writ denied.

DENNIS, J., would grant a writ.


text:
    Gabriel Dalton CORMIER v. REX TRUCK LINES, INC., et al.
    No. 63033.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Gabriel 'Dalton Cormier applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Iberia, State of Louisiana.

Writ denied.


text:
    STATE of Louisiana v. POWELL BUICK, INC.
    No. 63024.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: State of Louisiana applying for supervisory writs.

Writ denied. The showing made does not sufficiently show that the requested special change is wholly correct or pertinent.

SANDERS, C. J.. and SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Charles FORT v. Frank FOIL, Judge and Daniel W. LeBlanc (former) Judge, 19th Judicial District Court, Section “B”, East Baton Rouge Parish, Baton Rouge, Louisiana.
    No. 63015.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Charles Fort, applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied. Trial court dismissed writ on 2/10/77.


text:
    STATE of Louisiana ex rel. Tyrone Glenn JEFFERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63014.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Tyrone Glenn Jefferson applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Claude WOODS and Joseph Woods v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63012.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Claude Woods and Joseph Woods applying for writ of certiorari, and habeas corpus. Parish of West Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Charles ZACHARY.
    No. 62983.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Charles Zachary applying for supervisory writs. Parish of St. Landry.

Writ denied.


text:
    Emanuel ANDERSON v. Claude ANDERSON, Larry P. Anderson, General Accident Fire & Life Assurance Corporation, Ltd. and True-Temper Corp.
    No. 62980.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Emanuel Anderson applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana v. Frank GIORDANO.
    No. 62913.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Frank Giordano applying for remedial writs. Parish of Jefferson.

Denied. Treating this “appeal” as a writ application, it is denied.


text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 62864.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Ray T. Woodall, Jr., applying for writ of habeas corpus. Parish of Orleans.

Writ denied. Application is now moot. Trial judge advises former attorneys have been discharged and transcript delivered to sheriff’s office for transmittal to relator and/or his attorney.


text:
    STATE of Louisiana v. David L. SMITH.
    No. 62825.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: David L. Smith applying for supervisory writ of review, prohibition, mandamus and for a stay order. Parish of East Baton Rouge.

Denied. Adequate remedy for review in event of conviction.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Nolan GOTREAUX.
    No. 63052.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Nolan Gotreaux applying for writs of certiorari, prohibition, mandamus and stay order.

Not considered. Application not timely filed.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Henry ANDERSON.
    No. 63122.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Henry Anderson applying for writ of mandamus. Parish of Orleans.

Writ granted. Applicant is ordered furnished assignments of error, brief on appeal and opinion of this Court.


text:
    STATE of Louisiana ex rel. Leon GARRETT v. Walter E. KOLLIN, Judge, Division “I”, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
    No. 63065.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Leon Garrett applying for writ of mandamus.

Writ granted. Transcript of Boykinization is ordered to be furnished relator.

SANDERS, C. J. and SUMMERS, J., dissent.


text:
    STATE of Louisiana v. Andrew Chris PITTMAN.
    No. 63064.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Andrew Chris Pittman, applying for supervisory writ of certiorari or review. Parish of Lafourche.

Granted. Consolidated with appeal No. 63,115.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Walter Lanier, Jr., Judge of the 17th Judicial District Court, for the Parish of Lafourche, to transmit to the Supreme Court of Louisiana, on or before the 24th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Carl H. HURST.
    No. 63034.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Carl H. Hurst applying for writ of review 4th J.D.C. — Parish of Ouachita.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable John Joyce, Judge of the Fourth Judicial District Court, for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 24th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Marsha L. MORAGNE.
    No. 63017.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Marsha L. Moragne, applying for writs of certiorari, mandamus and prohibition. Parish of St. Bernard.

Granted. It is ordered that applicant be tried on or before October 25, 1978 or released on her recognizance.


text:
    STATE of Louisiana ex rel. David L. FIELDS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 62997.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: David L. Fields applying for writs of habeas corpus and certiorari to the 24th J.D.C., Parish of Jefferson.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Louis G. DeSonnier, Judge of the Twenty-fourth Judicial District Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 24th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Terry CAESAR.
    No. 62988.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition and stay order.

Writ granted. It is ordered that the trial judge admit into evidence the act of legitimation.


text:
    STATE of Louisiana ex rel. Ray Anthony SPEED v. Judge James C. TERRELL, Jr.
    No. 62848.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Ray Anthony Speed, applying for writ of mandamus and prohibition. Parish of Vernon.

Writ granted. Application transferred to district court for ruling.


text:
    Jackie Ray KING et al. v. PEOPLES BANK AND TRUST CO. et al. PEOPLES BANK AND TRUST COMPANY v. Julius D. GILL.
    No. 63202.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Mr. and Mrs. Jackie Ray King, applying for supervisory writs of certiorari, prohibition and/or mandamus. Parish of Caddo.

Sale scheduled for October 11, 1978 is stayed pending further orders of this Court. It is further ordered that transcript of all evidence taken in the district court in connection with consolidated cases argued and submitted on September 22, 1978 be filed forthwith.

SANDERS, C. J., did not participate.

SUMMERS, J., would not grant a stay order.


text:
    STATE of Louisiana v. James WATSON, III.
    No. 63200.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: James Watson, III, applying for certiorari, prohibition, mandamus and for bail pending review. Parish of Lincoln.

Writ denied. No abuse of discretion.


text:
    STATE of Louisiana v. Ivan MOLINARIO.
    No. 63191.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Ivan Molinario, applying for supervisory writs of certiorari, prohibition, mandamus, habeas corpus and a stay order. Parish of Orleans.

Denied. Adequate remedy by appeal in the event of conviction.