text:
    Richard H. MARLOWE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1953.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Richard Henry Marlowe, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

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

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ruby Ann BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2122.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


text:
    Leamon BROWNLEE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1488.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.
    Richard L. Jorandby, Public Defender, and Kenneth R. Barba, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Eutsey v. State, 383 So.2d 219 (Fla.1980).

BERANEK, HERSEY and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    Wanda E. FUNGONE, Appellant, v. STATE of Florida, Appellee.
    No. 79-245.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.

      Richard L. Jorandby, Public Defender and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals her conviction and sentence for receiving stolen property. The court adjudicated defendant guilty and sentenced her to five years.

A home was burglarized by several juveniles who stole, among other things, a .22 caliber revolver. The police arrested one of the juveniles involved who told them one of the other suspects was at the home of defendant, Wanda Fungone. Although there is conflict in the evidence, the police went to the Fungone home where they found the juvenile suspect hiding under a bed. This particular juvenile suspect had recently escaped from the Okeechobee School for Boys. Mrs. Fungone was arrested for child abuse and obstructing a police officer in the lawful exercise of his duty. The juvenile was taken into custody for burglary and for escaping from the Okeechobee Boys’ School.

In the eventual trial, the arresting officer testified that the juvenile suspect stated that he had sold the .22 caliber revolver to the defendant who knew it was stolen. On appeal defendant asserts that her objection to this evidence was erroneously overruled and that the admission of this evidence constituted prejudicial error. We agree and reverse.

The juvenile suspect was present and available to testify but was not called as a witness. It was improper to allow introduction of the hearsay testimony from the investigating police officer over defendant’s objection. There was an issue presented as to whether defendant knew the gun was stolen. The officer’s testimony that the juvenile said defendant knew it was stolen was clearly hearsay and under these circumstances was prejudicial. In W. B. v. State, 356 So.2d 884 (Fla. 3d DCA 1978), the only evidence connecting defendant to the crime was the testimony of a school official concerning a second juvenile’s oral confession which implicated the first juvenile. The Third District Court of Appeal applied the United States Supreme Court ruling in Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and held that the admission of the confession implicating the defendant in a form not subject to cross-examination had the effect of depriving defendant of his right to confront and cross-examine the witnesses against him. See also State v. Hamilton, 240 So.2d 509 (Fla. 3d DCA 1970). Similarly, we conclude that the admission of this improper evidence requires that the conviction and sentence below be vacated and the case remanded for a new trial.

Under these circumstances, we feel it necessary to also comment upon the trial court’s denial of the defendant’s request to disclose the confidential section of the pre-sentence investigation report prior to sentencing. We have reviewed the pre-sen-tence investigation report and find it contains factual information. Consequently, if defendant is retried and convicted, the trial court should disclose the factual matters contained within the confidential portion of the pre-sentence investigation report to her. Dickens v. State, 368 So.2d 950 (Fla. 1st DCA 1979); Spooner v. State, 354 So.2d 1248 (Fla. 4th DCA 1978).

REVERSED AND REMANDED.

ANSTEAD and MOORE, JJ., concur.


author: ANSTEAD, Judge.

text:
    Terry K. ARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 79-1297.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.
    Richard L. Jorandby, Public Defender, Peter Birch, Legal Intern, and Cathleen Brady, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Terry K. Arthur, was charged by information and convicted of attempted robbery with a firearm “contrary to Florida Statute 812.13 and 777.04.” Of the points raised on appeal, the only one we believe to have merit concerns the legality of the life sentence imposed.

Arthur contends that since he was convicted of attempted robbery with a firearm under the attempt statute, Section 777.-04(4)(b), Florida Statutes (1977), he was guilty of only a second degree felony so that the court was precluded from imposing a life sentence.

The state maintains that the life sentence was proper under Section 812.13(2) and (3), Florida Statutes (1977). The robbery statute provides as follows:

812.13 Robbery-
(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.
(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

The state’s contention was specifically considered and rejected in Whidden v. State, 374 So.2d 543 (Fla. 2d DCA 1979):

We believe that the equation of the phrase “in an attempt to commit robbery” with the phrase “in the course of committing the robbery” was meant only to extend the enhancement provisions of subsections (2)(a), (b) and (c) to attempted robbery as well as robbery so as to make attempted robbery with a deadly weapon a higher offense than attempted robbery with a weapon or attempted robbery without a weapon. See Vitko v. State, 363 So.2d 42, 43 n.1 (Fla. 2d DCA 1978). This does not mean, however, that attempted robbery with a deadly weapon will be an offense equal to robbery with a deadly weapon. Rather, it will continue to be a lesser degree felony as Section 777.04 provides.

374 So.2d 543 at 545.

Also see Prunty v. State, 360 So.2d 147 (Fla. 1st DCA 1978).

As a general rule criminal statutes are to be strictly construed and where a statute is susceptible of differing constructions, the construction most favorable to the accused should be adopted. State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla. 3d DCA 1977).

The state argues that the legislature clearly intended that the punishment for attempted robbery with a firearm equal that for robbery with a firearm and, that, therefore, the rule of strict construction of criminal statutes in favor of the accused must be subordinated to the rule that the evident intention of lawmakers must be given effect regardless of whether such construction varies from the statute’s literal meaning. State ex rel. Washington v. Rivkind, supra; State v. Nunez, 368 So.2d 422 (Fla. 3d DCA 1979).

Although it is arguable whether the legislature intended to include attempted robbery with a weapon within the purview of Section 812.13, we believe we are bound to construe any ambiguity in favor of the appellant. We also note that the state itself in the information alleged a violation of Section 777.04, the attempt statute, as opposed to relying solely on Section 812.-13(2)(a) and (3). Under all of these circumstances we conclude that the appellant should have been sentenced in accordance with Section 777.04(4)(b). Whidden v. State, supra.

Accordingly, appellant’s convictions are affirmed but the sentence for attempted robbery is vacated and this cause is remanded for resentencing. The appellant need not be present at such resentencing.

BERANEK, J., concurs.

RIVKIND, LEONARD, Associate Judge, dissents without opinion.


author: PER CURIAM. BERANEK, Judge,

text:
    Nixon GOSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1475.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.

      Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by defendant from a judgment after a jury trial.' Defendant was found guilty of resisting arrest with violence and placed on three years’ probation. We affirm in all respects except conclude that the condition of probation whereby defendant was required to submit to searches by any authorized police officer is violative of the principles stated in Dearth v. State, 390 So.2d 108 (Fla. 4th DCA 1980). We, therefore, strike the words, “and authorized police officers,” from the order and affirm the order as modified.

AFFIRMED AS MODIFIED.

ANSTEAD and HURLEY, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I recognize that the Dearth case is controlling here but do not agree with the principles stated therein.


text:
    John P. STARCHER, Appellant, v. Annie Catherine STARCHER, Appellee.
    No. 79-1904.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.

      Robert C. Hill of Engel, Aronson, Fried & Cohn, Fort Lauderdale, for appellant.
    Michael L. Gates of Kaplan & Jaffee, Hollywood, for appellee.
   BERANEK, Judge.

The parties in this case had a nine-month live-in arrangement prior to a six-month marriage. During the period of the marriage a home was purchased and title was taken in their joint names. Although the husband claimed a special equity in the property, the final judgment pointedly left the property in joint names so they would become tenants in common.

The appellant contends the trial court erred in failing to specifically rule on his prayer for a special equity in said property and in not awarding him a special equity. We find that the trial court did rule on appellant’s prayer and denied it. However, in denying any special equity, we feel the trial court erred.

The record reflects that the entire down payment for the property was paid by the husband from funds generated from the sale of real and personal property he owned prior to the marriage. Thus, it would appear that the husband was entitled to a special equity in the wife’s undivided interest in said property. Ball v. Ball, 335 So.2d 5 (Fla.1976).

The wife claims that she also made contributions from a source unconnected with the marriage toward improvements of the property and its furnishings. Instead of asserting a right to a special equity in the property, however, the wife claimed these matters as a “defense” to the husband’s claim for a special equity. The theory of a special equity is that of an interest in property which vests at a point in time when that person makes a contribution of funds, property, or services toward acquisition or betterment of property from a source unconnected with the marriage. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980), and Claughton v. Claughton, - So.2d -(Florida Case No. 55,227, opinion filed October 23,1980). A special equity is not properly considered as a pure defense against the special equity claims of the opposing spouse. Here, the husband’s special equity came into existence when he made the down payment on the home from a source unconnected with the marriage. Later substantial expenditures by wife on the home may or may not give rise to a special equity in her own right but such expenditures do not do away with the husband’s already vested interest in the property.

Although the wife’s answer sought alimony rather than a special equity, we have considered all of the evidence and conclude that even if properly pled, the wife failed to prove a right to a special equity in the property in question. Most of the items asserted by the wife in her resistance against the husband’s claims were in the nature of minor household purchases, maintenance expenses, and general living expenses. We conclude that these expenditures by the wife were not sufficient to require an award of a special equity to her as a matter of law.

Accordingly, the judgment appealed from is reversed and the cause is remanded to the trial court with directions to determine the value of the husband’s special equity claim in the wife’s undivided interest. If the trial judge feels this modification of the property disposition warrants reconsideration of other aspects of the final judgment relative to alimony, he is authorized to reconsider that award in such a fashion as may be justified by the record.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY and GLICKSTEIN, JJ., concur.


author: WARREN, LAMAR, Associate Judge.

text:
    Robert CARLSON and Judith Carlson, his wife, and Temple B’Nai Jacob of Palm Springs, Inc., Appellants, v. Louis KANTOR et al., Appellees.
    No. 79-2402.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.
    Larry Klein, West Palm Beach, for appellants Robert Carlson and Judith Carlson, his wife.
    Bennett S. Cohn, Lake Worth, for appellant Temple B’Nai Jacob.
    William C. Owen, Jr., for Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellees R. E. Penney and Marion Penney, his wife.
   WARREN, LAMAR, Associate Judge.

This is an appeal from a final judgment denying relief for removal of deed restrictions based on changes in the neighborhood. We reverse.

Plaintiffs, appellants here, who are owners in fee simple of certain lots, sought the removal of a recorded deed restriction providing .that the lots should be used exclusively as a home or place of residence for one family only. The plaintiffs testified that at the time they purchased the property they did not know about the restriction.

It was contended that owing to the general growth and development of the surrounding area there had been a change in the uses to which the property was being put so that it was no longer suitable for residential purposes as restricted. The trial court in its order finding for the defendant property owners noted that it was of concern to the court that the plaintiffs purchased the property with full knowledge, actual and constructive, of the infirmities which the property suffered and, referring to Baker v. Field, 163 So.2d 42 (Fla.2d DCA 1964), found from the evidence that the plaintiffs knew or should have known of the restricted character of the property when they bought it and that they did not show that the property had radically changed since the time of their purchase. The Baker decision, supra, draws largely from Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938), wherein the changes complained of took place before the appellant purchased his lot, and the court in affirming a dismissal held that appellant was on notice of the changes but observed that the covenants only had about fourteen months to run.

The recent case of Acopian v. Haley, 387 So.2d 999 (Fla. 5th DCA 1980), is of assistance in determining the present appeal. There appellants contended that the trial court erred in considering changes in the character of the neighborhood (an oceanfront subdivision) prior to the time appel-lees acquired their property and that it applied the wrong rule of law in determining that the restrictions were no longer valid, with which the district court agreed, pointing to Allen v. Avondale Co., supra, and Barton v. Moline Properties, Inc., 121 Fla. 683, 164 So. 551 (1935). By a footnote, the court commented that the logic of this (Allen v. Avondale, supra) and similar holdings had been questioned because the focal point in the determination should be whether the intent of the original parties and their purpose in restricting the land had been frustrated by a change in conditions, not who owned the parcel sought to be relieved of the restrictions at the time the action for removal was filed, citing § 11.12, Florida Real Property Practice III, The Florida Bar, C.L.E. (2d Ed. 1976).

The Acopian decision went on to mention that there was no showing or finding by the court that the many changes in the character of the surrounding neighborhood had materially affected the subject subdivision or frustrated the purpose of the restrictions.

The trial court in the present appeal similarly limited its order, as to the changes alleged by plaintiffs, to the statement “[t]hat counsel for the plaintiff went to great length to show how the housing in the area had deteriorated; testimony also indicated that the Congress Avenue area has become more commercial in surrounding areas even as close as being across the highway.”

A complete determination of this litigation indicates that the trial court should have the opportunity of weighing all of the equities contained in the record, including the facts under which the plaintiffs purchased the property, the present nature and character of the lots, and all other factors which might bear upon a resolution of this cause and render its decision thereon.

Accordingly, the judgment of the trial court is reversed and this cause remanded with directions for further proceedings consistent herewith.

ANSTEAD and HURLEY, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    James V. SUAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 79-1499/T4-646.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order revoking his probation for violation of conditions four and nine of the probation order.

Condition four required appellant to live and remain at liberty without violating any law. Appellant was charged with two counts of violation of this condition. The court found one violation consisting of his failure to pay the cost of supervision.

Payment of costs of supervision was not specifically made a part of the probation order. Only the court may set the conditions upon which probation may be revoked. Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977). Therefore the finding that appellant had violated condition four of the probation order was improper.

Condition nine required appellant to pay a public defender lien at the rate of $50.00 per month. Appellant contends that the only evidence to support this violation consisted of hearsay. See Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1979). We find, however, that there was sufficient evidence to support the violations. Appellant’s own admission that the lien had not been paid was sufficient. See Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980).

We affirm the order of the trial court as to appellant’s violation of condition nine of the probation order but remand for correction of the order to delete the finding of a violation of condition four.

REMANDED in part and AFFIRMED in part.

SHARP and COWART, JJ., concur.


author: ORFINGER, Judge.

text:
    Joe Louis PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1587/T4-667.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.

      Richard L. Jorandby, Public Defender and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach for appellee.
   ORFINGER, Judge.

Appellant, convicted by a jury of burglary of a structure, contends that the trial court erred in not granting a directed verdict of acquittal made at the close of the State’s case and renewed at the close of the defense case. The evidence of ownership is alleged to be insufficient. We affirm.

The motion for directed verdict of acquittal was based on the ground that “the State has not presented a sufficient amount of evidence so as to constitute a prima facie case....” The specific ownership issue is presented for the first time on appeal. This motion is insufficient because it does not fully set forth the ground on which it is based. Rule 3.380(b), Florida Rules of Criminal Procedure; G. W. B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976). A bare bones motion for directed verdict will not permit a defendant to raise every possible claimed insufficiency in the evidence. De La Cova v. State, 355 So.2d 1227 (Fla. 3d DCA), cert. denied, 361 So.2d 831 (Fla.1978).

Even if it could be asserted that the motion was proper, the evidence below was sufficient to prove ownership for the purpose of charging burglary. The allegations of ownership in the information can be supported by proof of possession which is rightful against the burglar, and may consist of a special or temporary ownership, possession or control in the person alleged to be the owner. In the Interest of M. E., 370 So.2d 795 (Fla.1979). The evidence here adequately supports the allegations of ownership in the victim.

AFFIRMED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    James R. BEGGS, III, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-204 to 79-206, 80-507.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980).

COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    Verdell HILL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-298.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment and sentence entered by the Circuit Court for Putnam County. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 17,1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

COBB and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge.

text:
    Charles SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. 80-32.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.

      James B. Gibson, Public Defender and Brent A. Woolbright, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION TO INTRODUCE NEWLY-DISCOVERED EVIDENCE

COBB, Judge.

Charles Shepard, the defendant/appellant in Case No. 80-32, pro se seeks to file a “Motion” which, if properly before this court, would constitute a petition for writ of error eoram nobis. The petition seeks the leave of this court to introduce newly-discovered evidence. See Hallman v. State, 371 So.2d 482 (Fla. 1979).

The petitioner, Shepard, is represented in this appeal by the public defender, who was appointed at his request. The record does not indicate that the attorney has been discharged from that responsibility or substituted. The petition is not signed by the public defender and does not indicate he has seen or reviewed it. Rule 9.360(b), Florida Rules of Appellate Procedure, provides that attorneys in the lower tribunal retain their same status on appeal. That status encompasses the right to be consulted by your client and to know what your client is doing. Otherwise, the attorney is operating in the dark.

The defendant, under appropriate circumstances, has the constitutional right to waive counsel and represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Cappetta, 216 So.2d 749 (Fla. 1969), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969); Deeb v. State, 131 Fla. 362, 179 So. 894 (1938); Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 715 (Fla. 1978); and Williams v. State, 337 So.2d 846 (Fla.2d DCA 1976). The defendant has no right, however, to partially represent himself and, at the same time, be partially represented by counsel. Goode v. State, 365 So.2d 381 (Fla. 1979), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

Accordingly, the “petition” is stricken from the record and returned to petitioner, with a copy thereof furnished by this court to his counsel of record.

DAUKSCH, C. J., and COWART, J., concur.

      . Despite the spelling in the title of this cause, Shepard spells his name with one “p.”

      . See Rule 3.111(d), Fla.R.Crim.P.


text:
    W. E. KIRCHOFF, Jr., and William E. Kirchoff, Appellants, v. MOULDER BROTHERS, INC., John Moulder and Claudine Moulder, his wife, and Edna M. Moulder, Appellees.
    Nos. 80-184, 80-510.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.

      Phillip H. Logan of Shinholser, Logan & Moncrief, Sanford, for appellants.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellees.
   COBB, Judge.

Appellees (Moulders) brought an action against appellants (Kirchoffs) for slander of title and seeking injunctive relief and damages for trespass to realty. The count alleging slander of title was preliminarily dismissed by the trial court. The Kirchoffs’ answer raised three affirmative defenses: prescriptive easement, implied easement, and statutory way of necessity under section 704.01, Florida Statutes. The Kir-choffs also filed a purported third-party action against the prospective purchasers (Norton and Steel) of the realty who had executed a contract of sale with the Moulders. The Moulders moved for judgment on the pleadings and summary judgment, and the Kirchoffs responded by filing an affidavit in opposition to the motion for summary judgment.

Counsel for the Kirchoffs did not attend the hearing on these motions. The issue in regard to the claim of prescriptive easement by the Kirchoffs was whether or not adversity of use had been adequately pled. The Moulders asserted in their motion for judgment on the pleadings that the allegation of a prescriptive easement by the Kir-choffs showed that the use of the Moulders’ land occurred with permission of the owner, and failed to affirmatively show that such use was “hostile or adverse to the interest of plaintiffs or their predecessors in title.” The trial court entered an order granting a judgment on the pleadings in respect to the affirmative defense of prescriptive easement, and a partial summary judgment for the Moulders in respect to the Kirchoffs’ affirmative defenses of implied easement and statutory way of necessity.

No final judgment was entered pursuant to these orders prior to trial on the amount of damages. The defendants thereupon filed a “Motion for Reconsideration” of the order granting judgment on the pleadings as to Count I of the affirmative defenses-the claim by the Kirchoffs of a prescriptive easement. The motion for reconsideration was denied, and the case then proceeded to trial on the Moulders’ complaint and the answer of the Kirchoffs shorn of the affirmative defenses. The issues for trial were limited to a determination of trespass vel non upon the Moulders’ lands and, if appropriate, damages. Final judgment was entered by the trial judge enjoining the defendants from coming onto the Moulders’ land and adjudicating damages against the Kirchoffs for the “continuing trespass” based on the trial court’s determination that “plaintiffs have sustained damages attributable to interest lost on the proceeds of a pending sale of the lands.. .. ” The court denied the Moulders’ claim for attorney’s fees. The trial judge also entered judgment against the Kirchoffs on their third-party action against Norton and Steel.

The Kirchoffs have appealed the judgment on the pleadings and the award of trespass damages. The Moulders have cross-appealed and have claimed that the trial court erred in computing the damages by failing to consider the full period of delay of the sale to Norton and Steel, by denying their claim for attorney’s fees, and by dismissing the count in the original complaint based on slander of title.

The first issue we will consider is whether or not the trial court erred by entering the order granting the motion for judgment on the pleadings as to the defendants’ affirmative defense of prescriptive easement. In this regard, we believe the trial court, possibly because of the unorthodox absence of the Kirchoffs’ counsel from the hearing, failed to accord sufficient consideration to paragraph 18 of the answer which alleged that the Kirchoffs’ “use was inconsistent with full enjoyment and use of [the road] by Plaintiff [sic] and their predecessors in title.” This is more than an allegation of mere acquiescence, as contended by the Moulders, and the court erred in granting the motion and precluding the issue of prescriptive easement from the trial. See City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974); Downing v. Bird, 100 So.2d 57 (Fla.1958); Guerard v. Roper, 385 So.2d 718 (Fla. 5th DCA 1980). The trial court apparently construed the Kirchoffs’ allegations in paragraphs 16 and 20 of their answer that the Moulders had acquiesced in the use of the roadway by the Kirchoffs and their predecessors as a self-defeating allegation of permissive use by the owners. The terms “acquiescence” and “permission” are not synonymous, and this distinction has been explicated by the Florida Supreme Court in the case of J. C. Vereen & Sons, Inc. v. Houser, 123 Fla. 641, 167 So. 45 (1938).

The Kirchoffs have also argued that the trial court erred by refusing to allow them to amend their pleadings during trial in regard to the issue of prescriptive easement. In view of our holding in regard to the first point, this issue is moot.

Since the judgment must be vacated, except insofar as it relates to the dismissal of the third-party action against Norton and Steel, and this cause remanded for further proceedings, the issue raised by the Kirchoffs relating to the trial court’s computation of damages is also moot. However, we believe that we should observe, for the benefit of the trial court in conducting further pretrial and trial proceedings in this cause, that we concur with the Kirchoffs’ argument that generally the proper measure of damages in an action for trespass to realty is the difference in value of the property trespassed upon before and after the trespass is committed. National Rating Bureau, Inc. v. Florida Power Corp., 94 So.2d 809 (Fla.1957); Gasque v. Ball, 65 Fla. 383, 62 So. 215 (1913); Nilsson v. Hiscox, 158 So.2d 799 (Fla. 1st DCA 1964); Mid-State Investment Corp. v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961). Evidence relative to this measure of damages was not introduced at the trial of this cause.

The Moulders’ cross-appeal is patently without merit in regard to the proper elements of damage for trespass and their claim for attorney’s fees. The damage evidence utilized by the trial court, based on the sale contract between the Moulders and the prospective purchasers, might be appropriate in a properly pleaded action for slander of title or intentional interference with a contractual relation, but not for this trespass. In this regard, the Moulders also contend that the trial court erred in dismissing Count II of their second amended complaint in which they sought to allege a cause of action for slander of title against the Kirchoffs. Basically, this count alleged that the Moulders entered into a contract on October 4, 1978, to sell their lands to Norton and Steel; that on November 2, 1978, William E. Kirchoff told Norton and Steel that the lands were subject to an enforceable easement owned by his father, W. E. Kirchoff, Jr.; that if the Moulders or Norton and Steel attempted to interfere with said easement legal action would be initiated; and that William E. Kirchoff knew the asserted easement was without foundation in law or fact. It is alleged that the result of this statement was the refusal of Norton and Steel to purchase the Moulders’ property pursuant to their written contract to do so. The count seeks abstract costs, attorney fees and punitive damages.

The trial court apparently dismissed the slander of title count because the alleged slander occurred after the Moulders had entered into the contract of sale, rather than before, and because it was not alleged that the Moulders had liquidated their cause of action against the defaulting purchasers, Norton and Steel. The applicable rule is set forth in 50 Am.Jur.2d Libel and Slander, § 546 (1970):

Where words which are slanderous of the title to property are uttered or published after a sale thereof has been .. . agreed upon and contracted for, so as to give the plaintiff a contract capable of being enforced, he does not suffer any actionable damages from their utterance although the purchaser was thereby deterred from performing his contract or induced to violate it, since the seller may obtain relief by suing the purchaser.

We agree with the trial court’s application of this rule to the Moulders’ second amended complaint in regard to the attempted allegation of slander of title. No issue is raised by this appeal in regard to the allegation of a cause of action predicated upon intentional interference with a contractual relation.

Accordingly, the final judgment is reversed, except for its dismissal of the third-party action against the third-party defendants, Norton and Steel, and this cause remanded for further proceedings before the trial court consistent with this opinion.

SHARP and COWART, JJ., concur.

      . This was actually a misnomered motion to add parties plaintiff as provided by Rule 1.210, Fla.R.C.P.

      . Defense counsel’s office called the judge and advised him that Mr. Logan would not be at the hearing and to proceed without him.

      . We recognize the exceptions to this general rule set forth in the cases of Anchorage Yacht Haven, Inc. v. Robertson, 264 So.2d 57 (Fla. 4th DCA 1972); and Elowsky v. Gulf Power Co., 172 So.2d 643 (Fla. 1st DCA 1965).

      . See 32 Fla.Jur. Torts § 12 (1960).

      . The trial court relied on two Alabama Cases: Louisiana Gas and Oil Corp. v. Green, 230 Ala. 470, 161 So. 479 (1935) and Dent v. Balch, 213 Ala. 311, 104 So. 651 (1925).


text:
    Wardell Ricardo JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-190.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    James B. Gibson, Public Defender, and James R, Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment and sentence for attempted burglary of a structure. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 14, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

COBB and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492 (1967).


text:
    Denise Held FIRKEL, Appellant, v. Earl Richard FIRKEL, Appellee.
    No. 80-368.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Christine Warren of Judge & Warren, P. A., Daytona Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment of dissolution of marriage contending the trial court erred in awarding appellee a special equity in the parties’ residence and granting him the right to exclusive possession of the residence for an indeterminate period.

We affirm as to the special equity. The testimony of the parties was taken on different days. When husband testified, no one had arranged for a reporter, but the parties proceeded without preserving the record. While appellant convincingly argues her position and the authorities supporting it, we have no way to review the basis for the trial court’s decision. Appellee correctly contends that appellant must overcome the presumption of correctness the judgment carries by making reversible error clearly appear on the record and notes the responsibility is on appellant to bring to the court a trial record containing every phase of the trial proceeding that must necessarily be considered to find prejudicial error. See Greene v. Hoiriis, 103 So.2d 226 (Fla. 3d DCA 1958) and Rule 9.200, Florida Rules of Appellate Procedure. In Damkohler v. Damkohler, 336 So.2d 1243 (Fla. 4th DCA 1976), the court stated:

Where an appellant challenges the sufficiency of the evidence, he has the burden of bringing before this Court a complete record of the proceedings below. In the absence of such a record, we must presume that there was sufficient evidence and testimony presented to the Trial Court to support its findings of fact.

The second point raised is whether the trial court erred in awarding the husband exclusive possession of the marital residence owned by the parties after the divorce as tenants in common.

The trial court found that there were no children, there was no need for alimony, and the financial ability was such that each could pay their own attorney fees. No reasons were given which would justify a grant of exclusive possession of the jointly owned residence.

“An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period.” Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). See also Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975); Dwyer v. Dwyer, 305 So.2d 10 (Fla. 1st DCA 1974). The husband argues that exclusive possession is necessary to prevent a reduction in the value of the property. Under appropriate circumstances this argument would prevail, but not for an indefinite period. We are also hampered here by the incomplete record to determine if there was justification for excluding appellant from the property.

We must therefore remand to the trial court to determine the period of exclusive possession and if the reasons for such still exists. Nothing appears in the record which would justify a denial of partition of the property if proper pleadings are presented to the trial court.

AFFIRMED in part and REMANDED in part.

SHARP and COWART, JJ., concur.

      . Rule 9.200(e), Florida Rules of Appellate Procedure, states:
      The burden to insure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by a motion.


text:
    Cornell CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-984.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.

      J. Gordon Blau, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO DISMISS

COBB, Judge.

This is before us on a motion by the state to dismiss the instant appeal insofar as it includes the adjudication of guilt on the charge of aggravated battery by the trial court on August 17, 1979. At that time sentencing was postponed pending receipt by the trial court of a presentence investigation. Nevertheless, on August 23, 1979, the defendant filed his notice of appeal from the judgment of guilt. That appeal was Case No. 79-93. He was released on supersedeas bond pending sentence.

Appellant failed to appear for his scheduled sentencing in April, 1980. Consequently, a capias issued for his arrest and the state moved to dismiss his appeal. That motion was granted by this Court and we dismissed the appeal in Case No. 79-93 on May 16, 1980, citing three cases in support of that order: Jones v. State, 362 So.2d 149 (Fla. 3d DCA 1978); Mitchell v. State, 270 So.2d 447 (Fla. 1st DCA 1972); and Decree v. State, 180 So.2d 667 (Fla. 1st DCA 1965).

Subsequent to the dismissal of defendant’s appeal of his judgment of conviction, he was apprehended and sentenced on August 15, 1980, to 15 years imprisonment. He again filed notice of appeal to this Court, which is the instant ease.

In its motion to dismiss this second appeal of the judgment of conviction, the state points out that the new notice of appeal is tantamount to an attempt to reinstate the previous appeal. The denial of the state’s motion would be in direct contravention of our holding in Brown v. State, 388 So.2d 586, 587 (Fla. 5th DCA), wherein we said:

that if an appellant in a criminal case escapes from lawful confinement, or voluntarily, without authorization, absents himself from the jurisdiction of this court while on probation, then his appeal is subject to dismissal and if dismissed will not be reinstated upon return to the jurisdiction of the court, (emphasis supplied).

In Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974), the court refused to reinstate a dismissed appeal after the defendant’s apprehension absent a showing of good cause. Marshall v. State, 344 So.2d 646 (Fla. 2d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977), is distinguishable from the instant case because the appellant there had been returned to the custody and jurisdiction of the court before hearing on the motion to dismiss his appeal.

The appellant Chambers has not sought to have Case No. 79-93 reinstated, nor offered good cause to do so. That dismissal is final. Instead, the defendant has merely filed a new appeal following sentence. Although a defendant who files a timely notice of appeal within thirty (30) days of sentence thus preserves for review both judgment and sentence, the filing of an earlier notice following the judgment of conviction but preceding the sentence severs these issues for purposes of appellate review. Compare Williams v. State, 324 So.2d 74 (Fla.1975). That is what the defendant did in this case. He cannot have two bites at the same apple.

The response of the appellant to the state’s motion to dismiss is the argument, predicated upon dictum in Marshall, that there is no statutory authority in Florida, as there is in Texas, for the dismissal of an appeal as a penalty for escape or failure to appear in court. This argument is clearly without merit in view of the contrary holding by the Florida Supreme Court in Bretti v. Wainwright, 225 So.2d 516 (Fla.1969). In that case, it was held that appellate courts in Florida have the jurisdiction and inherent discretion to dismiss appeals and refuse their reinstatement for the failure of the appellant to prosecute his appeal at the time its dismissal is sought by the appellee. That holding by the Florida Supreme Court cannot be modified by the dictum of a district court of appeal.

As observed in Marshall, the case of Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), demonstrates that there is no federal constitutional prohibition to the dismissal of an appeal because of abandonment or failure to prosecute. There is no federal constitutional right to state appellate review of state criminal convictions.

Accordingly, the state’s motion to dismiss this second appeal, once dismissed, of the appellant’s judgment of conviction, is granted.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Florida Real Estate Comm. v. Harris, 134 So.2d 785 (Fla.1961); 3 Fla.Jur.2d Appellate Review § 18 (1978).


text:
    Sylvester O. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2405.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 1980.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon the authority of Butterworth v. Fluellen, 389 So.2d 968 (Fla.1890).


author: CAMPBELL, Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Michael SMOLENSKY, a minor, by and through his father and next friend, Gerald L. Smolensky, and Gerald L. Smolensky, individually, Appellees (two cases).
    Nos. 80-758, 80-1173.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    John W. Williams and Jeffrey R. Fuller of Williams, Earle, Brasfield & Wertz, P.A., St. Petersburg, for appellant.
    David J. Kurland of Kurland & Johnson, P.A., Clearwater, for appellees.
   CAMPBELL, Judge.

In Case No. 80-758, United Services Automobile Association (USAA) appeals from a declaratory judgment with respect to uninsured motorist coverage. In Case No. 80-1173, USAA appeals from an award of attorney’s fees to the appellees.

After consideration of the record and the briefs and hearing oral argument, we find no error in the trial court’s final judgment which determined that the Smo-lensky’s settlement with the tortfeasor did not prejudice USAA. We do find that the trial court committed error by awarding attorney’s fees to the appellees after a notice of appeal from the final judgment had been filed.

Florida Rule of Appellate Procedure 9.600(a) provides that the trial court has concurrent jurisdiction over procedural matters prior to transmission of the record. Attorney’s fees are not purely procedural matters; therefore, rule 9.600(a) does not apply here.

Rule 9.600(b) provides that when the lower court has lost jurisdiction because of an appeal, the appellate court by order may permit the lower court to proceed on specifically stated matters during the appeal. A request for relinquishment of jurisdiction to the trial court for a ruling on attorney’s fees would have been the proper method of proceeding here. As there was no relinquishment of jurisdiction by the appellate court, the lower court was without jurisdiction to enter an order awarding attorney’s fees. See Wilson Realty, Inc. v. David, 369 So.2d 75 (Fla.2d DCA 1979).

Accordingly, the judgment is affirmed; the order awarding attorney’s fees is vacated; attorney’s fees are awarded to the ap-pellees on appeal; and the ease is remanded in order for the trial court to conduct a hearing on an award of attorney’s fees to the appellees for trial and on appeal.

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


author: RYDER, Judge.

text:
    Austin RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-787.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant was tried and convicted of the separate offenses of escape and resisting arrest without violence. He contends his sentence was improper inasmuch as it was a general sentence covering both offenses and because it was in excess of the statutory maximum allowed for resisting arrest without violence. We agree.

Subsequent to being adjudicated guilty of escape and resisting arrest without violence, the trial judge pronounced a general sentence, without specificity, that the appellant would be placed on five years probation with the special condition that he reside in the county jail or stockade for a period of one year.

The crime, escape, is classified as a second degree felony punishable by up to fifteen years imprisonment, while resisting arrest without violence is a first degree misdemeanor carrying a one-year maximum sentence. Clearly, placing appellant on probation for five years exceeds the statutory maximum in the misdemeanor conviction.

The Florida Supreme Court held in Dorfman v. State, 351 So.2d 954 (Fla.1977), that general sentences are no longer proper and may not be imposed by any trial court. Dorfman controls here. The trial judge imposed a general sentence in violation thereof and therefore we reverse, set aside the sentence imposed and remand the matter to the trial court with instructions to resentence appellant, imposing a single sentence as to each crime. Appellant will be present at the time of sentencing.

REVERSED and REMANDED with instructions.

SCHEB, C. J., and DANAHY, J., concur.

      . § 944.40, Fla.Stat. (1979).

      . § 843.02, Fla.Stat. (1979).


text:
    Douglas HEFLIN, d/b/a Hardee County Plumbing Co., Appellant, v. W. D. M. CORP., a Florida Corporation, and Colan L. Tillis and Jerry H. Tillis, his wife, Appellees.
    No. 80-886.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Clifford M. Abies, III, of Hancock & Abies, P. A., Wauchula, for appellant.
    No appearance for appellees,
   CAMPBELL, Judge.

Hardee County Plumbing Co. appeals from the trial court’s ruling that its claim of lien did not attach to W.D.M. Corp.’s fee interest in certain property. Appellant had perfected the lien against the property, a restaurant leased by the Tillises from W.D.M. Corp., after the Tillises refused to pay for repairs made to the restaurant by Hardee County Plumbing. The trial court based its decision on section 713.10, Florida Statutes (1979). Section 713.10 provides that mechanics’ liens may be extended to the property interest of a lessor when the lessee makes improvements to the property pursuant to an agreement with the lessor.

The written lease involved in this case is a very short, handwritten document that is silent as to improvements except those involving normal maintenance on the premises. Appellant introduced parol evidence at trial in an attempt to establish an agreement between the lessees and lessor such as is contemplated by section 713.10.

After hearing the evidence, the trial judge determined as a matter of fact that the agreement between the lessees and lessor “was not in the nature of the agreement contemplated by § 713.10, Florida Statutes.” Edward L. Nezelek, Inc. v. Food Fair Properties Agency, Inc., 309 So.2d 219 (Fla. 3d DCA 1975), holds that to come within the terms of the statute the improvements must be “the pith of the lease” or the lease by its terms must require the work to be done. We cannot hold here that the trial judge abused his discretion in finding that the facts before him failed to meet that requirement.

After carefully examining the record, we have concluded that the trial judge should be affirmed; however, our obligation as a reviewing court was not eased by the failure of the appellee W.D.M. Corp. to appear in this proceeding to support the trial judge’s judgment.

The final judgment appealed from is hereby affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


text:
    AMERICAN HOME ASSURANCE COMPANY, Petitioner, v. William E. FREDRIKSON and William E. Fredrikson, Jr., Respondents.
    No. 80-1471.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Shelton Clyatt, Jr., West Palm Beach, and Henry P. Trawick, Jr., of Trawick & Griffis, Sarasota, for petitioner.
    Daniel E. Conley, Naples, for respondents.
   PER CURIAM.

Petitioner contends that the circuit court was without jurisdiction to entertain respondents’ motion to withdraw a previously entered voluntary dismissal. We agree. See Randall-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). Accordingly, the trial court’s order allowing the withdrawal is quashed.

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


author: SHARP, Judge. DAUKSCH, Chief Judge,

text:
    Isaac CHAPPELL, Appellant, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 80-1076.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 1980.

      Charles R. Colbrunn, of Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    George L. Waas, Asst. Gen. Counsel, Tallahassee, for amicus curiae, Florida Dept, of Health & Rehabilitative Services, Inc.
    Jim Smith, Atty. Gen., Tallahassee and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for amicus curiae, Florida Dept, of Legal Affairs.
    William K. Howell, Jr., Asst. County Atty., DeLand, for amicus curiae, Volusia County.
    Bruce M. Fried, Tallahassee, for amicus curiae, Florida Legal Services, Inc.
   ON MOTION TO REVIEW CLERK’S DENIAL OF APPELLANT’S CERTIFICATE OF INDIGENCY

SHARP, Judge.

Chappell filed an appeal from an administrative proceeding without depositing the appellate court filing fee required by Florida Rule of Appellate Procedure 9.110(b) and section 35.22(3), Florida Statutes (1977). Pursuant to section 57.081(1), Florida Statutes (1980), Chappell filed a certificate, declaring himself indigent, which was executed by an attorney in the office of General Counsel, Florida Department of Health & Rehabilitative Services, “As Department Clerk.” The certificate was accompanied by Chappell’s affidavit of indigency, certified by his attorney, Colbrunn, with the Greater Orlando Area Legal Services, Inc. The clerk of this court refused to allow the appeal to proceed and Chappell filed a motion seeking review of the clerk’s actions. We stayed the dismissal of the appeal, invited the filing of amicus curiae briefs, and set oral argument because (we agree with the appellant) the issues are of great public importance and interest.

The first issue is whether or not Chapter 80-348, Laws of Florida (1980) (section 57.-081, Florida Statutes), permits the appellate courts to waive filing fees in civil cases for indigents. The recently revised statute provides:

(1) Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge. No prepayment of costs to any judge, clerk or sheriff is required in any action when the party has obtained a certification of indigency from the clerk in each proceeding, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable by law to any of such officers. When the person is represented by an attorney, the affidavit shall be supported by a written certificate signed by the attorney representing the person that he has made an investigation to ascertain the truth of the applicant’s affidavit and that he believes it to be true; that he has investigated the nature of the applicant’s position and that in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of indigency, the applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action.

The original statute on this subject expressly provided it applied to appeal proceedings. § 58.09, Fla.Stat. (repealed 1957). The succeeding statute made no reference to appeals but it contained references which restricted its application to trial and circuit level proceedings. Section 57.081(1), Florida Statutes (1979) provided:

(1) Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge. No prepayment of costs to any judge, clerk, or sheriff in the county is required in any action when the party has obtained a certification of insolvency from the clerk in each action, based on affidavits filed with him that the applicant is insolvent and unable to pay the charges otherwise payable by law to any of such officers. . . . (Emphasis added).

The courts concluded section 57.081(1), Florida Statutes (1979) did not apply to appellate courts.

The most recent statutory amendment deleted the expressions “courts, sheriffs, and clerks of the county in which they reside,” and “plaintiff” and replaced them with the more comprehensive terms, “any .. . person who is a party in any judicial or administrative agency proceeding.” (Emphasis supplied). Because the plain meaning of the 1980 statute indicates appellate proceedings are included, and because the Legislature presumptively intended a change in the prior statute we conclude that Chapter 80-348, Laws of Florida (1980), encompasses appellate court proceedings.

Our next problem is to clarify the procedure for carrying out Chapter 80-348 in the appellate court. Florida Rule of Appellate Procedure 9.430 provides:

A party who has the right to seek review without the payment of costs shall file a motion in the lower tribunal, with an affidavit showing his inability to pay fees and costs or give security therefore. If the motion is granted, the party may proceed without further application to the court and without prepayment of fees or costs in either the lower tribunal or the court or the giving of security therefore, If the motion is denied, the lower tribunal shall state in writing the reason therefore. Review shall be by motion filed in the court.

Florida Rule of Judicial Administration 2.040(b)(3) provides:

In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition or other initial pleading is filed. The payment shall not be extracted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. ...

Both of these rules contemplate some action being taken by the lower tribunal or agency. Chapter 80-348 merely requires a certification of indigency from “the clerk in each proceeding.”

To the extent there is a conflict between the rules and the statute as to matters of procedure rather than substantive law, the rules must prevail. Therefore, the obtaining of a “certification of indigency from the clerk” of the lower tribunal will not suffice. A party seeking to obtain waiver of appellate court fees must file a motion in the lower tribunal or administrative agency, accompanied by affidavits showing his inability to pay fees. In addition, if he is represented by an attorney, the attorney must file the certificate required by Chapter 80-348. The attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees, and the lower court or agency may consider those matters in determining whether or not the applicant is able to pay the filing fees. The lower court or agency will make these determinations, which shall be reviewable by this court pursuant to Rule 9.430.

Because Chappell did not obtain an order from the administrative agency establishing his indigency and inability to pay, but merely obtained a certificate from an attorney “as clerk,” he did not comply with Rule 9.430 or Rule 2.040(b)(3). The clerk of this court was correct in refusing to let Chap-pell’s appeal proceed in this posture. However, because of the lack of judicial interpretation of chapter 80-348, and its lack of clarity read in the context of the rules, we will hold this appeal in abeyance and remand this proceeding to the administrative agency for a period of 30 days to permit the appellant to obtain an order or adjudication of his indigency and inability to pay the appellate fees.

This cause is therefore REMANDED.

COBB, J., concurs.

DAUKSCH, C. J., concurring specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

I concur with the most complete opinion of the majority and merely would add two thoughts. First, none of the briefs filed as a part of these proceedings differed with the position of appellant as to the fact that indigent persons are entitled to have their appeals filed without cost to them. Second, no one but this court suggested that in order for a person to be indigent for appellate court fee purposes the agency, such as the Greater Orlando Area Legal Services, Inc., which provides the free legal counsel, should also have no funds with which to provide the court fee. There is no evidence in this record from which we can ascertain how the Greater Orlando Area Legal Services, Inc. is funded but certainly if some of the funding is from federal or other governmental funding, and at least a part of the provisions of the funds is for filing fees, then this court should not accept the appeal without the fee. The affidavit of the attorney should be quite clear on this subject and should satisfy the lower tribunal and this court that only persons without funds from any source are those receiving the benefit under the statute; which benefit, of course, is a detriment to the rest of the public who must carry the additional load. I suggest specific findings should be made by the lower tribunal concerning this aspect of the indigency of the appellant.

        . Lee v. City of Winter Haven, 386 So.2d 268 (Fla. 2d DCA 1980); Latsi v. Florida Parole & Probation Commission, 382 So.2d 1355 (Fla. 1st DCA 1980); Hillman v. Federal National Mortgage Association, 375 So.2d 336 (Fla. 4th DCA 1979).

      . Thayer v. State, 335 So.2d 815 (Fla.1976).

      . Capella v. City of Gainesville, 377 So.2d 658 (Fla.1979).

      . One of the problems in trying to follow Chapter 80-348 is illustrated in this case. The certificate is signed by an attorney on the staff of the administrative agency as “the clerk.” Many agencies, unlike the courts, do not have a “clerk.”

      , Art. V, § 2(a), Fla.Const.; In Re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972); Market v. Johnston, 367 So.2d 1003 (Fla.1979).

      . Nichols v. Florida Parole & Probation Commission, 393 So.2d 13 (Fla. 1st DCA 1980).

      . We do not reach in this case the question of procedure in “original” jurisdiction matters. Fla.R.App.P. 9.030(b)(3). Therefore, this opinion is not in conflict with Nichols v. Florida Parole & Probation Commission, 393 So.2d 13 (Fla. 1st DCA 1980).


author: SHAW, Judge.

text:
    Robert COOK, Appellant, v. STATE of Florida, Appellee.
    No. SS-414.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SHAW, Judge.

On July 8, 1978, two employees of Cunningham’s Furniture Store located in Jacksonville, Florida were approached by a highly intoxicated Jimmy B. Saffold who asked if he could sleep in the alley behind the store. Upon receiving permission, Saffold curled up on a piece of cardboard and went to sleep. The State introduced evidence that later that afternoon a black man entered the alley wearing either dirty brown or denim cutoffs with a bandage wrapped around his left knee. After picking up a stick and pointing it at Saffold while muttering to himself, the man began beating Saffold about the face with a piece of concrete block. The assailant was finally chased from the area by one of the two eyewitness employees of Cunningham’s who had watched the drama unfold and who later identified the appellant.

It was the opinion of the two eyewitnesses that the assault occurred between the hours of 3:00 and 4:00 PM. Deputy Thomas J. Szafranski testified that in routine check of R & R Bar at approximately 8:30 PM that evening, he noted a man sleeping at a table wearing dirty shorts, no shirt or shoes and bandages wrapped around his left knee and wrist. The officer, who had no prior knowledge of the earlier incident involving Saffold, arrested the appellant for disorderly intoxication.

The defendant was adjudicated guilty of second-degree murder and sentenced to 20 years with a provision for probation.

The Third District Court of Appeal held in a similar situation that the Youthful Offender Act is not to be applied retroactively. Johnson v. State, 379 So.2d 704 (Fla.3d DCA 1980). We, therefore, resist the appellant’s argument that the judge committed error in failing to sentence the appellant under the Youthful Offender Act.

It is also argued that the court erred in allowing the State to indirectly comment upon the defendant’s silence. During summation, defense counsel made reference to the paucity of evidence produced by the State and questioned why certain witnesses were not called by the State to testify. The prosecutor, in closing argument, responded to the summation by commenting on the subpoena power of the defense. The trial judge appears to have been keenly aware that the prosecutor was skirting the outer limits of permissible prosecutorial conduct and admonished him to withdraw from further comment on the subject. He concluded, however, that the prosecutor’s statements were fair comment in response to defendant’s summation.

On direct examination Officer Sza-franski identified the appellant and related the circumstances surrounding his arrest. Defense counsel was allowed to explore these areas on cross-examination and brought out that it was only after the arrest that Officer Szafranski became aware that there was a BOLO out on a suspect. When counsel attempted to inquire further into Szafranski’s understanding of the BOLO and the BOLO’s description of the suspect, the trial judge sustained the State’s objection.

On cross-examination the State was allowed to inquire into the appellant’s activities after 5:30 PM. Appellant argues that such inquiry exceeded the scope of the direct examination and is reversible error. Cross-examination is subject to the test of relevancy.

“The propriety of questions on cross-examination rest in the sound judicial discretion of the trial court, who must judge of their propriety from what transpires on the trial and the course and conduct of the witness on the stand. The discretion of the trial court in this respect will not be interfered with unless clearly abused to the manifest prejudice of the complaining party.” 35 Fla.Jur. Witnesses § 191 (1961).

We are not prepared to say that the trial court abused its discretion or that prosecu-torial conduct was such as to deny the appellant a fair trial.

The judgment appealed from is hereby affirmed.

ERVIN and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    P. A. C., a child, et al., Appellants, v. STATE of Florida, Appellee.
    Nos. TT-149, TT-386, TT-387 and TT-388.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellants challenge escape convictions for unauthorized absence from Duval House and Duval Hall, juvenile detention facilities of the Florida Department of Health and Rehabilitative Services. The houses are described in the record as halfway houses, in contrast with the Jacksonville Youth Development Center found in a recent decision (R. R. et al. v. State, 39 FLW 1874 (Fla. 1st DCA, 1980)) to be a “training school” within the meaning of the provision of § 39.112, Florida Statutes, penalizing

an escape from any training school or secure detention facility maintained for the treatment, rehabilitation, or detention of children who are alleged or found to have committed delinquent acts or violations of law .... (e.s.)

The record in the present case also indicates JYDC is listed as a recently qualified training school in proposed administrative rules defining that term, and was considered by HRS witnesses to be a facility within that term under the statute in question, while halfway houses such as Duval Hall and House were not so classified based on the nature of the activities conducted and the juveniles assigned to such facilities.

The statute is clearly penal in nature and must therefore be strictly construed. See § 775.012(1), Florida Statutes. The circuit judges determined, and appellees concede, that Duval Hall and Duval House are not secure detention facilities within the ambit of § 39.112; however, based on testimony that the residents receive educational opportunities within the community and “training” in basic personal conduct to reenter society, the judges found that the facilities are training schools despite the testimony of various HRS representatives that the facilities are in the nature of halfway houses and are not training schools as the term is used administratively.

The position is of course arguable that a literal application of the statutory term in question would include halfway houses along with every residential facility under departmental control, and that the proffered administrative definition may limit “training school” to places which would probably be covered even if the statute referred only to secure detention facilities. Equally tenable, however, would be an argument that the legislative prescription is subject to an “ejusdem generis” rule, so that it might be construed to refer to “any training school or [other] secure detention facility maintained for” certain - broadly stated purposes. Before resorting to such abstract speculation to define the statute out of context, we look first to other portions of the enactment as well as to administrative usage prior and subsequent to the act.

The legislative act creating § 39.112 also amended § 39.01(10), Florida Statutes, defining “community control” as a program “in lieu of commitment to the custody of the department in a training school, halfway house or other residential program of the department.” [e.s.] We therefore conclude that the legislature intended to distinguish training schools from the department’s other residential programs such as the halfway houses described in the record in this case.

In administrative rules effective prior to the enactment of Chapter 78^114, Laws of Florida (1978), HRS listed its various training schools; Duval Hall and Duval House are not listed. See Chapter 10H-103(7), Florida Administrative Code. And the legislature has recently enacted § 39.01(36), Florida Statutes (1980), defining “training school” by listing the various such facilities; Duval Hall and Duval House are not mentioned in this statute. See Chapter 80-290, Laws of Florida (1980). While these provisions, like contemporary administrative usage, do not definitively control the issue in the present case, see R. P. et al. v. State, supra, they may be considered for the purpose of statutory construction. Chapter 10H-1.03(7), Florida Administrative Code, was an existing rule when the legislature enacted § 39.01(10) and § 39.112, Florida Statutes; the legislature is thus presumed aware of the definition of “training school” in Chapter 10H-1.03(7), Florida Administrative Code. And while § 39.01(36) was enacted subsequent to the orders appealed, this provision is definitional in nature and may be considered as expressing the prior legislative intent.

The record in the present case indicates that Duval Hall and Duval House are facilities in the nature of halfway houses and not “training schools” as that term is used in Chapter 39, Florida Statutes. Section 39.112, Florida Statutes, is thus inapplicable, and appellants’ motions to dismiss should have been granted.

We therefore reverse and remand for further proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


author: MILLS, Chief Judge. BOOTH, Judge,

text:
    M. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-344.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.

      Michael J. Minerva, Public Defender, Carl S.McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

A juvenile, M.M., appeals from an adjudication of delinquency for aggravated assault, urging three points on appeal:

I.The trial court erred in denying appellant’s motions to dismiss and for judgment of acquittal since the starter gun involved sub judice is not a deadly weapon within the meaning of the aggravated assault . statute.
II.The trial court erred by denying appellant’s motion to suppress evidence and motion to suppress confession since the officer who arrested appellant failed to make a reasonable effort to immediately notify appellant’s mother of the arrest.
III.The trial court erred in denying appellant’s motions for judgments of acquittal since the evidence is insufficient to prove that appellant’s conduct actually placed Michael Collins in fear.

We reverse on Point I, but affirm on Points II and III and direct the trial court to enter an adjudication based on the offense of simple assault.

For clarity, we need to discuss the third issue first because it raises a question of whether there was an assault at all, whereas the issue raised in Point I is whether the assault was an aggravated assault. If there was no assault, then, of course, there was no aggravated assault.

An assault is “an intentional unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Section 784.011(a), Florida Statutes (1979). The only aspect of that definition that appellant urges was not supported by the evidence is whether the victim was placed in fear. The transcript establishes that the victim testified that he was not afraid of appellant, but that he was scared when the “gun” was pointed at him. This testimony supports the finding that appellant committed an act which placed the victim in fear. Thus, the trial judge properly denied the motion for judgment of acquittal based on the sufficiency of the evidence of assault.

As to whether the assault was an aggravated assault, Section 784.021, Florida Statutes (1979), provides in pertinent part that an “aggravated assault is an assault with a deadly weapon without intent to kill.” The issue presented here is whether the starter gun used by appellant was a deadly weapon. The State’s expert witness, a police officer, testified that the instrument was a .22 caliber starter pistol which had two bars in the barrel and on which the barrel was warped such that the instrument could not fire a projectile. The instrument could not be loaded with a real bullet. Furthermore, the officer testified that the instrument could be modified to make it operable, but that modification could only be accomplished by an experienced and knowledgeable person. The testimony revealed that the starter pistol did look just like a regular gun to the ordinary observer.

Based on these facts, we believe that the evidence failed to support the determination that the starter pistol was a deadly weapon. As noted in Goswick v. State, 143 So.2d 817 (Fla.1962), “It is the nature of the weapon that characterizes the assault as ‘aggravated.’ ” (143 So.2d at 820) The standard Jury Instruction on aggravated assault defines a deadly weapon as “any weapon which, in the manner in which it is used or threatened to be used, is likely to produce death or great bodily harm.”

This Court was faced with the factual question of whether an unloaded gun was a deadly weapon in Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970). There, this Court held that a gun is a deadly weapon whether loaded or unloaded. Similarly, the Third District Court of Appeal has held that a gun whether operable or inoperable is a deadly weapon. Warren v. State, 332 So.2d 361 (Fla. 3d DCA 1976).

We think those cases are distinguishable because of the fact that they deal with an instrument which is actually a gun, rather than a starter pistol which even in its loaded and operable state is incapable of firing a projectile.

We are not unaware of Nash v. State, 374 So.2d 1090 (Fla. 4th DCA 1979), wherein, based on the facts gleaned from the dissent, it appears that the court ruled by per cu-riam affirmed that a conviction of aggravated assault could be had where the assailant used a starter pistol. Although the dissenting Judge, Chief Judge Downey, noting that the pistol had not been adapted so as to fire a projectile and did not contain a projectile, likened the situation to one involving an unloaded gun, citing among other sources Annot., 79 A.L.R.2d 1424 (1961), we think the situation in both Nash and this case is more appropriately likened to one involving a toy or simulated gun. See Annot., 81 A.L.R.3d 1006 (1977).

We note that under Section 790.001, Florida Statutes (1979), a starter pistol is included within the definition of a firearm if it “will, or is designed to, or may readily be converted to, expel a projectile .... ” Thus, it would appear to us that whether a particular starter pistol is a deadly weapon would depend on whether it is a firearm, i. e., readily converted to fire a projectile. The facts stated in Chief Judge Downey’s dissent in Nash reveal that there was testimony that the starter pistol could be adapted so as to fire a projectile.

In the instant case, the officer testified that the starter pistol could be made operable, but could be done only by an experienced and knowledgeable person. There was no evidence the instrument could readily be converted to expel a projectile. Nor was there evidence of any threat to use the instrument as a bludgeon.

The facts here are more comparable to those in McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978), where this Court reversed a conviction for robbery with a weapon where the evidence showed that the instrument carried in the course of the robbery was a cigarette lighter which was shaped like a gun. Holding that although the cigarette lighter could be a deadly weapon, depending on its use or threatened use, it was not such when it was merely pointed at the victim as if it were a gun.

Since the question of whether the starter gun was a deadly weapon was a question of fact to be resolved by the trier of fact based on the evidence adduced, the motion to dismiss based on the allegation that there were no material disputed facts and the undisputed facts did not establish a prima facie case was properly denied. However, since the evidence does not support the finding that the instrument used was a deadly weapon, the trial court should have granted the motion for judgment of acquittal as to the aggravated nature of the assault. Accordingly, we reverse the adjudication of delinquency based on aggravated assault with directions that the trial court enter an adjudication of delinquency based on simple assault.

The third and final issue to consider revolves around the question of whether the motions to suppress should have been granted because of the arresting officer’s alleged failure to make a reasonable effort to immediately notify appellant’s mother of the arrest as required by Section 39.03(3), Florida Statutes (1979). We need not reach the legal intricacies of this issue because appellant’s mother was, in fact, notified immediately. The record establishes that the arresting officer took appellant by his house and informed his mother of the arrest on the way to the juvenile detention center from the school. The fact that the detour by the house was for the purpose of obtaining the starter gun and not for the purpose of informing appellant’s mother of the arrest does not change the fact that the mother was notified.

AFFIRMED in part and REVERSED in part with directions.

LARRY G. SMITH, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

concurring in part, dissenting in part:

I would affirm the judgment below in its entirety. Aggravated assault was charged based on defendant’s use of a starter pistol which he pointed at the victim. The gun was inoperable, but the victim was unaware of that fact and testified: “It looked like a .38 to me,” and “I felt scared.” That is the critical point. The gravamen of any assault is the putting in fear of the victim. The consequences to the victim, innocent bystanders and to the assailant are far more likely to be serious when a deadly weapon is involved. A weapon that is apparently or actually capable in the manner used of causing death or great bodily harm is a “deadly weapon.” In Bass v. State, 232 So.2d 25, 27 (Fla. 1st DCA 1980), this court held:

Certainly, when one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. In such a situation and under the proper circumstances, it would not be unreasonable for the person assaulted to attempt to repel his assailant by inflicting upon him bodily harm, which attempt might result in the death of the assailant or in the deaths of bystanders in the event that the assailant was not subdued. In such a situation, the possibility of death is not unforeseeable even though the assailant did not loan his gun. This view comports with the general definition of a “deadly weapon” as one likely to produce death or great bodily injury.

In Warren v. State, 332 So.2d 361, 362 (Fla. 3d DCA 1976), the court affirmed the conviction of assault with a deadly weapon where the pistol involved was not shown to have been operable and held:

The pivotal question presented on this appeal of the defendant’s conviction is whether or not an inoperable gun pointed at someone is a deadly weapon. We hold that when, as in this case, a pistol is pointed at someone during the course of a robbery, the pistol, whether operable or inoperable, is a deadly weapon within the meaning of § 784.04.

Here, as in Warren, the weapon was inoperable. Inoperability, whether temporary or permanent, is of no consequence where unknown to the victim and forms no basis for distinguishing the Bass and Warren cases under the rationale stated in those cases.

In this case, an expert testified that the gun used was a .22 caliber starter pistol which has a firing pin that strikes and explodes gunpowder in blank cartridges but shoots no projectile. The gun would not fire projectiles because of a bar in the cylinder, but, when the cylinder is in place, the bar was not visible to the person having the gun pointed at him. Further testimony was that, because the barrel is larger than the cylinder, a person having this particular pistol pointed at him would believe that it was a larger handgun than a .22 caliber. Finally, expert testimony was that the gun could be made operable and was a “firearm” within the meaning of Florida Statutes § 790.001(6):

“Firearm” means any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive

Most recently, in Nash v. State, 374 So.2d 1090 (Fla. 4th DCA 1979), the Fourth District Court upheld a conviction for aggravated assault with a deadly weapon based on the use of a starter pistol, citing this court’s opinion in Bass v. State, supra. In Nash, as in the instant case, testimony was that the pistol was capable of being adapted so as to fire a projectile, although it was not so adapted at the time of the commission of the offense. The fact that the weapon can be adapted to fire a projectile indicates its structural similarity to a weapon capable of firing a projectile and substantiates the well-founded fear of the victim.

I dissent from that portion of the majority’s opinion which requires the reduction of the offense to simple assault.

      . Cf. McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978), involving a conviction of robbery “while carrying a weapon,” contrary to Florida Statutes § 812.13(2)(b). In that case, the court held that a cigarette lighter “shaped like a gun” did not constitute a “weapon”. There is no discussion of similarity of appearance with that of a real weapon or victim’s belief that real gun was being used.


author: ROBERT P. SMITH, Jr., Judge.

text:
    GRANGER LUMBER COMPANY, INC., d/b/a: H. J. Granger & Sons, Appellant, v. Gus Edward PRESTON, Appellee.
    No. UU-254.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    S. Gordon Blalock, of Blalock, Holbrook & Akel, P.A., Jacksonville, for appellant.
    David T. Sawyer, of Donahoo, Donahoo & Poitevent, Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Granger Lumber Company appeals from a circuit court judgment awarding Preston an attorney’s fee incident to a judgment for money found to be payable by Granger to Preston pursuant to an employment contract. The attorney's fee award apparently is predicated on the trial court’s conception of this action as one for an accounting or other equitable proceeding comparable to Cooper v. Fulton, 158 So.2d 759 (Fla. 3d DCA 1963), cert. disch., 165 So.2d 161 (Fla.1964). We find, to the contrary, that the action is upon a simple debt, although its calculation required “accounting” services by an accountant, and consequently that an attorney’s fee is not awardable absent a controlling statute or agreement between the parties. Brite v. Orange Belt Securities Co., 133 Fla. 256, 182 So. 892 (1938).

REVERSED.

BOOTH and SHAW, JJ., concur.


text:
    FLORIDA HOSPITAL and American Home Group, Appellants, v. Rose UPSHUR, Appellee.
    No. TT-495.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Bernard J. Zimmerman, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Charles C. Hurt, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals and we affirm a January 22, 1980, order of the deputy commissioner finding claimant entitled to temporary total disability benefits for two brief periods of time: from April 19, 1979, to May 29, 1979, and from September 27, 1979, to November 5, 1979. Maximum medical improvement was found to have occurred on November 5,1979, with no permanent disability.

On May 10, 1979, claimant filed a claim for temporary and permanent disability compensation for an accident occurring on March 26, 1978. On May 31, 1979, claimant filed an amended claim listing April 19, 1979, as a date of accident. On August 30, 1979, employer/carrier applied for a hearing, listing March 29, 1978, as the date of accident on its application. The pre-trial stipulation gave March 29,1978, as the date of accident and showed the employer/carrier controverting any further temporary total disability or permanent partial disability compensation. The hearing was held on November 21, 1979.

At the hearing claimant testified she was 51 years old, had a 9th grade education, and had hurt her back while working for Florida Hospital in 1968, with only emergency room treatment and occasional symptoms until, on March 29, 1978, she twisted her back when a mattress fell on her, and she returned to work after two weeks’ treatment. She went on to testify as follows:

Q. All right. Now, when you returned to work after that accident, .... Were you continuing to have trouble with your back?
A. Yes....
Q. Now, in April, approximately April the 18th, 1979, and I draw your attention to that date, did something happen on that day, ....
A. Well, didn’t nothing really happen like picking up nothing, but I was working, we had a lot of work to do, and I was working real hard and my back started hurting.
Q. Was it in the same place you had been having trouble from a year ago?
A. Yes, same place.
Q. All right. Did you get medical attention?
A. ... I worked there Sunday sick with my back and I called in sick that Monday. And I called Dr. Mackey, but he couldn’t take me until that Tuesday.
Q. I see.
A. So I was off Monday and Tuesday. Wednesday was my day off. Thursday, I went back to work and Friday they terminated me.
Q. All right. I would like to draw the Court’s attention to the fact that Dr. Mackey sent a copy of that medical report to the hospital.
MR. ZIMMERMAN: Your Honor, I think all this is immaterial and irrelevant to this claim. You know, they’re contending that she had a new injury, an accident in April, 1979 which, of course, will have to be litigated at the proper time. We’re here for a hearing on an injury of March, 1978, based on my application for hearing.
MR. HURT: Judge, it’s our position that she did have the accident in ’78. which Mr. Zimmerman has stipulated to and we think the, whatever happened in April of 1979, I don’t know that it was an accident. Certainly her back got worse from the previous accident and whether it was an aggravation of that one, or what, we don’t know. We’re not all that concerned. We just want to tell the Court what has happened to this lady.
THE DEPUTY: I haven’t heard anything about a new incident yet. And I’ll overrule your objection.
MR. ZIMMERMAN: Well, he asked Dr. Mackey whether it was a.
THE DEPUTY: I haven’t read his deposition .... Just going by what she said this morning.
MR. ZIMMERMAN: All right.

The order on appeal recites claimant’s claim for “an accident and injury ... on March 29, 1978, and April 19, 1979,” but recognizes the stipulation “that the date of accident was March 29, 1978” and finds temporary total disability compensation due for the weeks above noted following April 19, 1979, without reference in any part of the order to an independent accident on that date. The literal terms of the order instead grant several weeks’ temporary disability compensation for the stipulated accident in 1978. Although there was medical testimony that the disability in question was causally related to “whatever happened” on April 19,1979, that was expressly based solely on claimant’s limited history or report of the current onset of severe symptoms. The doctor’s opinion was unequivocal that “the discomfort in her low back is job-related. I cannot attribute it to a particular incident .... ”

Appellant contends that the deputy (1) expanded the hearing beyond the application for hearing on the 1978 accident; (2) erred in ordering “that temporary total disability benefits be paid in connection with the 1979 incident” for a period when claimant’s “testimony reflects that she was able to work;” and (3) unnecessarily determined the maximum medical improvement date.

On the first point we affirm because the record, supra, reflects no prejudicial admission of evidence of events other than as arguably related to the 1978 accident, and the stipulation clearly identifies that accident and the period in 1979 for which consequential temporary benefits were sought. We dispose of the second issue by concluding the order does not order benefits paid for “the 1979 incident” independent of the stipulated 1978 accident involving a back injury at the same anatomic situs as the symptoms for which temporary disability benefits were awarded. Although the evidentiary basis for determination of claimant’s inability to work during the weeks in question, like the evidence of causal contribution by the 1978 accident, is not clear or strong and might have been resolved differently by the deputy as fact finder, we conclude there is no fatal deficit. As to the third point, supra, in view of the appellant employer/carrier’s stipulation challenging temporary and permanent disability and the request for hearing on both those issues, we find no error in the order terminating temporary disability on the date found for maximum medical improvement as specified by the medical evidence. The record contains no evidence whatever as to an earlier maximum medical improvement date now asserted by appellant for the 1978 accident, other than the fact that claimant then returned to work after her initial disability and treatment in 1978. Appellant’s issue as to fees and costs is controlled by our determination against reversible error on the other points.

The order is accordingly affirmed.

ERVIN and SHAW, JJ., concur.


author: DANAHY, Judge.

text:
    Robert Lee McABEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-749.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Robert Lee McAbee argues that his conviction for attempted resisting arrest with violence is void because there is no such crime in this state. We agree and reverse.

Appellant was charged with resisting arrest with violence in violation of section 843.01, Florida Statutes (1979), and subsequently found guilty of attempted resisting arrest with violence. Section 843.01 provides:

Whoever knowingly and willfully resists, obstructs, or opposes any . . . municipal police officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree .... (Emphasis supplied.)

We believe that the legislature’s use of the word “offering” in this statute is equivalent to the use of the word “attempting.” See Black’s Law Dictionary 1233 (4th ed. 1951). When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. Miles v. State, 374 So.2d 1167 (Fla.2d DCA 1979), and State v. Thomas, 362 So.2d 1348 (Fla.1978).

Although at trial appellant failed to object to the instruction and charge given on attempted resisting arrest with violence, he is nonetheless entitled to raise his point on appeal because it constitutes “fundamental error.” Fundamental error is defined as error which goes to the foundation of the case or goes to the merits of the cause of action. Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979). That doctrine applies to the case at bar because there is no such crime as attempted resisting arrest with violence.

Accordingly, we vacate the judgment and sentence, and direct that McAbee be discharged.

SCHEB, C. J., and RYDER, J., concur.


text:
    Jerry Joseph CORRADETTI, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-1089, 80-479.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The imposition of a ten-year term of probation upon the condition that the defendant serve two and one-half years in the state prison is reversed and the cause is remanded for resentencing. Cunningham v. State, 385 So.2d 721 (Fla.3d DCA 1980).