text:
    Frank C. MINGLEDORFF, Appellant, v. William CRUM, Preston Daughtry, and Leon Crum, as Trustees of the voluntary unincorporated association, Appellees.
    No. SS-438.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      Alfred 0. Shuler of Shuler, Apalachicola, for appellant.
    Brandt W. Davis, Apalachicola, for appel-lees.
   McCORD, Judge.

This appeal is from a final declaratory judgment finding and declaring the rights of the respective parties in relation to land used over a period of years as a cemetery. We find no error. The learned trial judge has set forth the facts and the law in relation to this controversy in opinion form. Since we agree with it and could not improve upon it were we to write an opinion, we adopt it as the opinion of this Court as follows:

1.The petitioners, William Crum, Preston Daughtry and Leon Crum, describe themselves as trustees of an unincorporated voluntary association known as Roberts Cemetery Association. They seek to have the area of a burial ground located on property claimed to be owned by defendant declared to be a dedicated public cemetery with right of members of families and descendants of those now buried there to have the right of burial in the cemetery so long as spaces are available, and to declare a right of the plaintiff trustees to enclose and properly maintain the area and to have access to same from the nearest public road.

2. The defendant denies there has been any dedications and claims ownership of the area and denies any rights to future burials. He challenges the standing of plaintiffs and otherwise asserts loss of any rights to use the property for future burials. By Counterclaim he also seeks to quiet the title to the lands by removing any cloud arising out of the presence of grave sites on the property claimed by him.

3. As will be more fully discussed hereinafter, the Court finds that the property described below is and has been set apart by acts and deeds of owners of the property, who have created an easement therein for the burial of those already interred and for the future burial of descendants of and members of families of those now buried there so long as spaces are available:

Commence at the concrete monument located on the northern boundary of State Road number S-370, which is 40 feet north of the SW corner of W Vk of NW Vi of SW Vi of Section 1, Twp. 6 S, R 3 W (said corner being in the center line of said State Road S-370), thence run north 89 ° 41' 31.7 " east 788.11 feet along the north boundary of State Road S-370 to a concrete monument, thence run north 4 ° 24'21" east a distance of 162 feet, more or less, across the outline of an old dirt rut road and along an established fence line to a point on the northern edge of a wooded area adjoining a cleared and maintained area in which graves are located, which is the POINT OF BEGINNING; thence continue north 4 ° 24'21" E, along the said fence line a distance of 223.09 feet, more or less, to a point 36 feet, more or less, south of the top of the south bank of the Ochlockonee River, thence run north 89 ° 30'21" east paral-lei to the top of the south bank of said river a distance of 67.76 feet to a point, thence run south 0" 46'28 " east, parallel to a marked driveway a distance of 219 feet, more or less, to a point on the northern edge of the wooded area adjoining the above mentioned cleared area, thence run in a westerly direction to the point of beginning.

(The above calls are drawn from or interpolated by reference to a survey by Miller Walston, Registered Surveyor, dated January 4, 1979 and in evidence as Plaintiff’s Exhibit 1.)

4. It is the intent of this Court that the above said description of the cemetery shall not be construed as an accurate survey of the area so designated. It is merely an approximation to describe same. The cemetery described herein shall include all visible graves now present, and shall establish a buffer zone fifteen feet wide between the driveway separating the cemetery from the respondent’s adjacent property and the eastern most visible grave site. A further buffer zone of about thirty-six feet wide is established between the top of the south bank of the Ochlockonee River and the northern most visible grave site. No burials shall be made in the buffer zones nor in other areas not included in the description above given.

5. The Court finds that the area designated is and has been a fully visible burial ground for many years, and was originally made available with the knowledge, consent and cooperation of the then title owners of the property. Such was not evidenced by any title documents or other paper evidence until the execution of a deed, dated May 24, 1977, from Fenton Jones to petitioners, recorded June 27,1978 in O R Book 140 p. 614 of the Franklin County public records. The deed purported to convey the area sought by petitioners to be declared a public cemetery, and extends from State Road S-370 northerly about 400 feet to the Ochlockonee River, and varies in width from a little over 100 feet at the road to about 80 feet along the river. Mr. Jones had no title to the property, and thus the instrument itself is not a valid muniment of title.

6.The plaintiffs contend that the area they claim has been dedicated as a public cemetery and that such should be judicially declared. The defendant denies that there has been a valid dedication. He evidences no interest or intention to disturb any existing graves or to interfere with relatives or friends who wish to visit and maintain upkeep on the burial sites presently there. He does object to the area being classified as a public cemetery with burial being available for any person. He does not object to future use for interment of family and close connections of those already buried there, but desires to confine it to an area along the west fence line, more or less in the general vicinity in the center of the plot, which includes a twenty-five-foot square enclosed area of six graves, and extends westerly to the general area of a 5' X 7' fenced plot lying just outside of and west of the fence. The smaller fenced plot lies outside of the land involved here. However, to restrict the area available for future burials to that suggested by Mr. Min-gledorff would preclude burials in the close vicinity of many graves located outside this area.

7. There seems to be little statutory or case law in Florida dealing with the issues in this case. The plaintiffs contend there has been a common law dedication of this property for a public cemetery. A common law dedication is defined as the setting apart of lands for public use, to constitute which there must be an intention by the owner clearly indicated by his words or acts to dedicate the land to public use and an acceptance by the public of the dedication. Palmetto v. Katsch, 86 Fla. 506, 98 So. 352; Miami v. F.E.C.R. Co., 79 Fla. 539, 84 So. 726. An intent to effect such a dedication may be shown by any act by the owner showing conclusively an intent to dedicate and an acceptance by the public. Miami v. Jansik, (Fla.) 89 So.2d 644. It may result from the conduct of the owner or by his permissive manifestations, Lovey v. Escambia County, Fla. 1st DC A 1962,141 So.2d 761. However, strictly speaking there can be no dedication to private uses or to uses public in nature but the enjoyment of which is restricted to a limited part of the public. Burnham v. Davis Island, Inc., Fla.1956, 87 So.2d 97. The substance of dedication is that it is for the usé of the public at large. See 10 Fla.Jur. (Dedication) Section 8. In view of these principles, the evidence does not indicate an intent on the part of the owners at the time the burials were consented to that the area be for the general public, but was more or less reserved for the family and friends of the owners. The property was early known as Shipley Landing. Mr. Green Roberts appears to have been the owner at the time of some of the early burials, though there is some evidence that burials were made when the property was owned by a Mr. Shipley, before the turn of the century. There appear to be more than fifty graves in the area which are identified, some of which go back to the early 1900’s, but a number are of recent dates. Mr. Green Roberts seems to have held the title prior to his death in 1938. His widow, Mrs. Fannie Roberts, from time to time cleared and cleaned the cemetery. There were conveyances, apparently by the Green Roberts descendents, which eventually vested title to the property in Esther Roberts in 1947, and she conveyed her title to Vernon Brabham in 1954, who conveyed to Gladys Suggs Parrish and also to Roy E. Parrish in 1954 and 1958. After Mr. Parrish’s death, sometime prior to May 12,1971, the title to all the property became vested in Gladys Suggs Parrish, who conveyed the property, in 1977, to Frank C. Mingledorff, the defendant. The evidence indicates that when the Parrishes acquired the property in the 1950’s the cemetery was recognizable but much grown up. However, after about two years people came up to clear the area, and Mrs. Parrish gave some of the grass to sprig the lots. Later there were some burials in the area. When Mr. Mingledorff bought the property in 1972, the central area was cleared, but between there and the river it was largely grown up, but was later cleared. There is no question but that Mr. Mingledorff knew of the presence of the graves when he bought the property, but he more or less assumed that there would be no more, or very few, additional burials. It also is clear that those who are now buried there are confined to the families who lived in the general area near the Ochlockonee River. The plaintiffs are members of the families buried there, and they and other relatives of the deceaseds have strong sentimental attachment to the area and desire to be interred there themselves. There have been no documents relating to the cemetery use, but all of the circumstances indicate that the owners intended only those ties by blood, marriage, neighborhood, or friendship to the owners and to those interred would be privileged to be buried there. Therefore, the Court does not deem that there has been a common law dedication to the extent that any part of the area has become a public cemetery.

8. Though a common law dedication, in its sense of a commitment to the general public, does not arise to create a private or family burial ground, there is authority for the proposition that owners may, without formal written documentation, establish and set aside a place of burial for the benefit of those included within a family or neighborhood and that such may be evidence by acts, acquiescence or other conduct evincing clearly such a purpose. In Hines v. State, 126 Tenn. 1, 149 S.W. 1058, 42 L.R.A. (N.S.) 1138, it was stated:

“Where an owner of land has appropriated a small part thereof as a private burying ground, and it has been used as such, the land cannot be conveyed or devised so as to interfere with such use, and he and his grantees, devisees, and heirs hold the title in trust for the benefit of those entitled to burial in it, who also have a right to visit it for the purpose of repairing, beautifying, and protecting the graves and grounds, and for these purposes a right of ingress and egress from the nearest public road, to be exercised at reasonable times and in a reasonable manner .
“In a conveyance or devise of land, part of which the owner appropriated as a private burying ground, it is not necessary to expressly reserve the right of burial therein; such reservation being implied, and the purchaser charged with notice of the fact that it has been dedicated to burial purposes, and of the rights of those entitled to use it.”

9. In the well considered case of Heilig-man v. Chambers, Okl.1959,338 P.2d 144, 75 A.L.R.2d 583 the issue was the right of the owner to disinter a body in a private burial plot and the question arose as to who has authority to give consent to disinterment, but the status of a burial ground, such as is involved in the case before this Court, was discussed as follows:

“When a family burial plot is established, it creates an easement against the fee, and while the naked legal title will pass, it passes subject to the easement created. The easement is in favor of the person creating and establishing the burial plot or his heirs. The easement and rights created thereunder survive until the plot is abandoned . . . ”

And on the question of abandonment, the same case holds:

“As long as a cemetery is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves or as long as it is known and recognized by the public as a graveyard, it is not abandoned.”

See also annotation in 75 A.L.R.2d 591 et seq. (Private or Family Cemeteries).

10. These authorities and equitable principles, together with a recognition of the concern and sentiments of surviving descendents, and relatives of persons interred on a burial plot, for a proper respect and care for the resting places of departed loved ones and also of a desire to eventually be buried there also, dictate that the law observe and protect the rights of those survivors. Whether the legal creation of a family or community cemetery be labeled a “dedication,” a “trust” or an “easement” the rights and limitations in the area of the fee owner and of others having an interest are the same and are reasonably well established. The rights to enter, care for and maintain the area is limited to those who are related, by blood or marriage, to those deceased persons interred there. Such entry and activity is to be restricted to reasonable times. It shall also be confined to conventional maintenance of the burial sites and grave markers, beautification in the planting and cultivating of flowers, shrubs and grasses and controlling of weeds and other unsightly growth. Coupled with these rights is a continual obligation to actually maintain the area and the grave sites in a clean, dignified, sightly fashion and to remove dead flowers and stagnant water in floral containers and otherwise abate any conditions which render any part of the area unhealthy or offensive to the senses.

11. There is also the right in these relatives of those interred to themselves be buried in the area to the extent that there are available unused grave sites. To this end there is the right of funeral directors or others in charge of the burial arrangements to access to the area for opening the grave and doing the necessary to complete the interment and properly closing the grave. Also, there shall be the right to conduct suitable graveside services and to accommodate the attendance at such services of such persons as care to be present, provided that property outside the cemetery area shall not be damaged. Such services shall be conducted during daylight hours and in such manner and at such times and only for such duration as shall not interfere with the use of defendant’s other property. Also, such services shall be conducted in a quiet and dignified fashion without resort to significantly loud speech, singing, or instrumentation which would be in excess of what is customary in the community for such services.

12. The right to visit for maintenance and upkeep purposes and the right to burial in the designated area are thus dependent upon the fulfillment of the continuous duties of preserving the area in a state of tidiness and dignity. Also, the rights of the owner are to be fully respected, which include the right to constant access to his other property, freedom from damage to his property, and freedom from disturbance and the enjoyment of his other property. It is an established custom, almost universally recognized, that the right of interment carries the right to identify a grave site with a marker of stone, masonry, or other material of durability and capability of being easily maintained. Such markers in this area are to be only such as are customary in the community, and structures of great height or complexity are not contemplated. Of course, the erection or continuance of enclosures of a group of family graves by fences or low walls of metal, wood, stone or masonry are permissible, provided they do not materially impair access to other grave sites for future burials or for their maintenance and upkeep.

13. The plaintiffs describe themselves as “trustees,” of the “Roberts Cemetery Association.” However, there does not appear to be any document establishing such a trust or defining their duties, powers, and purposes. It will be necessary that such a document be prepared and recorded which shall define their purposes, powers, method of operation, and the method of selecting their successors. It appears implicit from the pleadings and evidence in this case that they are each related, by blood or marriage, to one or more of the persons buried in the cemetery involved here, that they desire to cause the cemetery to be properly maintained and that they desire to be themselves interred there when they have passed on. The Court will recognize that such is the case and that they have a proper interest to maintain this action. Also, it is recognized that they are and have assumed and accepted responsibility for a proper future maintenance of the cemetery and for regulating and policing future burials there to the end that the rights of relatives of persons buried there may be given effect and that the rights of the owner are also fully honored. It will be necessary that they make a survey and cause to be marked the boundaries of the cemetery as hereinbefore described; that they identify and map existing grave sites and make proper records of same; that they locate and identify unused grave sites for future burials; that they locate, identify and establish necessary and suitable walks, passageways and other areas to assure reasonable access to grave sites for upkeep and maintenance and for access to future grave sites for burial services and future maintenance. They shall also formulate and carry out a program of regular maintenance to effect needed repairs, cleaning, landscaping and other necessary procedures to preserve the area in a sightly, healthy and respectable state of upkeep. All of the rights of the trustees and of those who are beneficiaries of their trust are subject to, and their continuance are dependent upon, the fulfillment of the duties which are set forth herein. It is contemplated that there should be a general and complete maintenance and placing of the area in a condition of tidiness and elimination of the unhealthy and unsightly which may accumulate, at least once every three months. The trustees are under a duty to supervise and carry out this objective. The trustees shall also formulate a plan and procedure whereby unused grave sites may be allotted to those entitled to them and to establish such rules as may be feasible to facilitate their use as the occasion arises and to comply with the limitations set forth herein. It is recognized that future burials are limited to availability of grave sites, and that when all such grave sites are occupied then there are no rights to other burials. Burials are limited to one casket per grave site, and no future burials shall be made at a grave site in which there has already been an interment. The plaintiff trustees shall embody in their rules the limitations set forth herein and shall furnish same to the funeral directors in the area.

14. Accordingly, it is the finding and declaration of the Court that the property hereinbefore described is owned in fee simple by the defendant, subject however to an easement and trust held by the plaintiffs, as trustees, in behalf of the relatives, by blood or marriage, to persons now buried in said property for the right of visitation and upkeep of existing grave sites and for future burial in unused grave sites to the extent that they are available, and it is further declared that such trust and easement shall continue so long as the duties and obligations of the trustees and their beneficiaries shall be substantially fulfilled and the cemetery kept in a state of tidy and healthy maintenance as hereinbefore specified. It is further declared that there are no rights of plaintiffs in any lands of defendant outside of the area hereinbefore described, except that of reasonable ingress and egress to the cemetery for the purposes herein set forth.

AFFIRMED.

MILLS, C. J., and THOMPSON, J., concur.


source: Caselaw Access Project

author: MILLS, Chief Judge.

license: Public Domain

text:
    Roger Velton OLIVER, Appellant, v. George WORD et al., Appellees.
    No. SS-459.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    John L. Jernigan, III, Brewton, Ala., for appellant.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   MILLS, Chief Judge.

Roger V. Oliver appeals from a final summary judgment in favor of the defendants. Our review of the record reveals that there are genuine issues of material fact remaining in this case and summary judgment was improper. Rule 1.510, Fla.R.Civ.P.

Accordingly, the summary judgment is REVERSED and this cause is REMANDED for further proceedings consistent with this opinion.

McCORD and JOANOS, JJ., concur.


author: SCHEB, Chief Judge.

text:
    Eugene M. and Sylvia HAMILTON, Husband and Wife, Appellants, v. PALM CHEVROLET-OLDSMOBILE, INC., a Florida Corporation, and Berry Brannon, Appellees.
    No. 80-408.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1980.

      Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellants.
    Lester E. Durst of Farr, Farr, Haymans, Moseley & Emerich, Punta Gorda, for ap-pellees.
   SCHEB, Chief Judge.

Appellants sued appellees charging them with deceptive trade practices under Chapter 501, Part II, Florida Statutes (1977), the Florida Deceptive and Unfair Trade Practices Act. The jury returned a verdict for appellees. The trial court entered final judgment for appellees and awarded them $5,500 in attorney’s fees.

Appellants now contend that the court improperly included services of appellees’ attorneys in defending appellants’ claim of punitive damages. Under Section 501.2105 of the Act, appellees, as prevailing parties, were entitled to have the court assess fees in their favor. Attorneys for appellees, however, submitted an itemization which included services beyond the scope of proceedings under Chapter 501, Part II. It appears that the trial court included payment for these services in awarding fees. In doing so, it erred. Kittel v. Kittel, 210 So.2d 1 (Fla.1967).

Accordingly, we vacate the order awarding attorneys’ fees, and direct the trial court to conduct a new hearing to determine a reasonable fee for appellees’ attorneys based on their services in defense of appellants’ claims under Chapter 501, Part II. Otherwise, we affirm the judgment of the trial court.

GRIMES and CAMPBELL, JJ., concur.


author: GRIMES, Judge.

text:
    Peter James CLEMONS, Appellant, v. STATE of Florida, Appellee.
    No. 80-606.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant's probation supervisor filed an affidavit charging appellant with violating conditions 1, 2, 3 and 9 of his probation. At the hearing on the affidavit the court revoked appellant’s probation for violating conditions 1 and 3, but declined to find that he had violated conditions 2 and 9. Because the order revoking probation recites that appellant violated not only conditions 1 and 3 but also conditions 2 and 9, the court must correct the order by removing any reference to violations of conditions 2 and 9. Brouilett v. State, 373 So.2d 449 (Fla. 2d DCA 1979); Brewster v. State, 352 So.2d 1267 (Fla. 2d DCA 1977).

The only evidence introduced covering appellant’s alleged violation of condition 3 (termination of employment without permission of supervisor) was the hearsay testimony of the probation supervisor about what appellant’s employer had said in a telephone conversation. It is well established that although hearsay evidence is admissible during a probation revocation hearing, a court may not base the revocation of probation solely on hearsay. Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1979); Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977). We believe it follows from this that a finding of a violation of a separate condition of probation cannot be based entirely upon hearsay. Hence the alleged violation of condition 3 also cannot serve as a basis for revocation.

While there was competent evidence at the revocation hearing that appellant had violated condition 1 (failure to file monthly reports), we are uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on that ground. Accordingly, we reverse the order of revocation and remand the cause to permit the court to consider whether the violation of condition 1 warrants revocation. Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976). In this connection, we note that since reversal of an order of revocation of probation on the ground that it was based solely on hearsay does not bar a second revocation hearing based on another affidavit alleging the same violation, the state may seek a second hearing on revocation based upon violation of condition 3. Tuff v. State; Hampton v. State, 276 So.2d 497 (Fla. 3d DCA 1973).

REVERSED AND REMANDED.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    STATE of Florida, Sunland Training Center At Miami and National Loss Control Service Corp., Appellants, v. Mary CALDWELL, Appellee.
    No. RR-12.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    Rehearing Denied Oct. 7, 1980.

      Summers Warden, Miami, for appellants.
    Law Offices of Sam Bloom, P. A., Miami, and Sugarman & Arnold, Coral Gables, for appellee.
   MILLS, Chief Judge.

The Employer-Carrier challenges the attorney’s fee awarded by the Judge of Industrial Claims. We reverse.

The sum and substance of the provisions in the order concerning attorney’s fees is as follows:

The Affidavit As To Reasonable Attorneys Fees executed on July 30,1979 alleges present worth value of benefits of $320,029.00. The affidavit indicates 142.-45 hours. Mr. Bloom was of the opinion that $48,754.00 would be a reasonable fee. Isreal Abrams, attorney, testified on behalf of the claimant to the effect that a reasonable fee for the services rendered by Mr. Bloom would be between $47,-500.00 and $50,000.00.
Errol Cornell testified on behalf of the employer and carrier that the range should be between $20,000.00 and $25,-000.00 for services rendered.
After considering the evidence and taking into consideration all of the variables, the attorneys fee schedule under F.S. 440.34, and the Lee Engineering Case it is found that a reasonable fee to be paid Sam Bloom for services rendered claimant is $40,000.00.

Appellants urge first of all that it was error for the Judge to consider the affidavit because it was never formally introduced into evidence. The record reveals that, although it is true that the affidavit was not formally introduced, the testimony of all the witnesses on the issue of attorney’s fees, including appellants’ witness, was based on the affidavit and counsel for both parties referred to the affidavit as having been “submitted” to the Judge. Under these circumstances we see no error.

The cases cited by appellants which resulted in a reversal where the affidavits were not in evidence involved situations where the affidavits were submitted to the Judge after the hearing was held and the opposing party was not given an opportunity to challenge them. In Grubbs v. Sunland Training Center of Miami, IRC Order 2-3476 (July 12, 1978), one affidavit was submitted after the hearing and the claimant was denied an opportunity to challenge it. There, although the IRC found that this was error, it held that it was harmless error since the claimant had sufficient opportunity to cross examine the other of the opposing party’s expert witnesses. Furthermore, in R & R Construction Co. v. Golden, IRC Order 2-2931 (March 5, 1976), the Commission held that the failure to formally offer affidavits into evidence was not fatal where the record as a whole revealed that the intent of the parties was for the affidavit to be in evidence and made a part of the record.

Secondly, appellants urge that the award of a $40,000 attorney’s fee was excessive and reflects, among other things, undue emphasis on the benefits obtained, the establishment or lack thereof of life expectancy and the calculations made considering that factor, consideration of the qualifications of an attorney other than the one who actually tried the case, and consideration of insufficient evidence of the time actually spent on the case.

We do not rule on the merits of the attack on the amount of the attorney’s fee because of a third point and that is that the order was inadequate in that it set forth insufficient findings for appellate review. We agree that the order is inadequate and fails to set forth information by which we can determine what criteria in Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), were considered and how they were applied. Cornelius & Sons v. McGrew, 387 So.2d 508 (Fla. 1st DCA, 1980) [1980 Florida Law Weekly 1655]. Accordingly, we must reverse and remand for the entry of a proper order.

We are disturbed by the contention of appellee that appellants should be estopped from challenging the sufficiency of the order because they drafted it. We do not know whether this claim is accurate, but we express the opinion that if it is such conduct would be a breach of ethics. See Canon 1, particularly DR 1-102(A)(4) and DR 1-102(A)(5), Code of Professional Responsibility-

Even if it is true, however, the error invited (or created) would go only to the sufficiency of the order. The estoppel, if any, would merely limit this Court from reversing and remanding this cause for entry of a proper order and leave -us in the posture of reviewing the merits of an attorney’s fee claim without the benefit of a thorough and comprehensive order which speaks to the issues raised. This we decline to do.

REVERSED and REMANDED for entry of a proper order.

McCORD and THOMPSON, JJ., concur.


text:
    The CITY OF PENSACOLA, Appellant, v. CAPITAL REALTY HOLDING COMPANY, INC., Appellee.
    No. SS-264.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    Rehearing Denied Oct. 27, 1980.

      John W. Fleming, Asst. City Atty., Pensacola, for appellant.
    Richard P. Warfield and Charles J. Kahn, Jr. of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P.A., Pensacola, for appellee.
   MILLS, Chief Judge.

The City of Pensacola appeals an order of the trial court which found that Capital Realty Holding Company is the owner of a strip of land on Pensacola Bay. We reverse.

The parties stipulated that the property in question was formed by accretion, built up through the years with sand deposited by the natural forces of Pensacola Bay. In a dispute collateral to an eminent domain action, the City claimed title to the land as record title holder by virtue of a 1903 conveyance from the State of Florida. Capital claimed title through the common law doctrine of accretion, which states that the owner of property on a waterway acquires title to adjacent land formed in the waterway by natural accretion. In its order, the trial court found that because Capital owned the property adjacent to the accretion, Capital was entitled to ownership of the accretion.

Capital argues that at the time of the 1903 deed to the City, the land in question lay under water. However, this is not substantiated by the record. The disputed property was one of numerous small parcels of land conveyed to the City by legislative act. The deed contained an exhaustive list of blocks and lots including the disputed property, all described in general terms as “land covered and not covered by water.” The land in question was not specifically described as being covered or not covered by water. Although the parties stipulated the land formed through accretion, the rec-

Therefore, we find insufficient evidence to support Capital’s claim that the doctrine of accretions defeats the City’s record title. Cases cited by Capital are inapplicable because they all contain evidence that the parties’ lands bordered on water. There is no such evidence here. ord does not indicate the land formed after the City acquired its title. We are confronted by a record which demonstrates that the land was formed, at some point, by accretion and that title to the land is held by the City of Pensacola.

Accordingly, the order below is reversed and this case remanded to the trial court for proceedings consistent with this opinion.

McCORD and THOMPSON, JJ., concur.


author: ORFINGER, Judge.

text:
    In the Interest of: S. C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-228/T4-382.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.

      Richard L. Jorandby, Public Defender, and Rendell Brown, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORFINGER, Judge.

The record reflects that appellant pleaded nolo contendere to eleven counts of a twelve-count information. One of the counts was nolle prossed by the State. There was no reservation of a right to appeal any ruling by the trial court. The order of disposition adjudged appellant guilty on all twelve counts.

Both appellant and appellee agree that the trial court made a clerical mistake in including case number JU 78-3787 in the order of disposition. This was the case nolle prossed by the State, so the order of disposition is modified by excluding therefrom case no. JU 78-3787.

Appellant next contends that the record does not clearly show that the trial court adequately inquired of appellant regarding his understanding of the constitutional rights he was waiving by the entry of the plea.

The appeal must be dismissed because we are without jurisdiction. A defendant may not appeal from a judgment of conviction entered upon a plea of nolo contendere without a reservation of the right to appeal from a prior specifically identified order of the trial court. Rule 9.140(b)(1), Fla.R. App.P.

There was no reservation of the right to appeal, and no motion to withdraw the plea was made to the trial court. In Robinson v. State, 373 So.2d 898 (Fla.1979), the Supreme Court held that although matters which occur contemporaneously with a plea of guilty or nolo contendere may be the subject of a direct appeal,

[i]f the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented to the trial court in accordance with the law and standards pertaining to a motion to withdraw the plea.

Id. at 902.

One of our sister courts has expounded on that principle in Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), and has held that a motion to withdraw a plea of guilty is a prerequisite to a direct appeal challenging the voluntariness of the plea. We concur, and hold that the same principle applies to a plea of nolo contendere entered without a reservation of the right to appeal.

The appeal is dismissed insofar as it questions the voluntariness of the plea without prejudice to appellant to seek appropriate collateral relief. As modified, the order of disposition is otherwise affirmed.

AFFIRMED as modified.

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

      . See also 3.172(c)(iv), Fla.R.Crim.P.


author: DAUKSCH, Chief Judge.

text:
    BREVARD COUNTY et al., Appellants, v. Dr. William E. BAGWELL et al., Appellees.
    No. 79-283.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    See also, Fla.App., 388 So.2d 648.

      Clifton McClelland and Robert L. Nabors of Nabors, Potter, McClelland, Griffith & Jones, P. A., Titusville, for appellants.
    George Ritchie, Cocoa, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment which declared unconstitutional a county ordinance regarding gun licensing.

The Brevard County Board of Commissioners enacted County Ordinance No. 78-01 pursuant to the authority delegated to it by the Legislature by section 790.06, Florida Statutes (1977), which provided for the regulation of concealed pistols through a uniform policy of issuance of licenses. Each appellee had applied to the board of county commissioners for a license pursuant to the provisions of this ordinance. Their applications had been denied on the sole ground that each had failed to show a “demonstrated need” to carry a concealed pistol as required by subsection (f) of section 25-21 of the ordinance:

(f) The applicant has demonstrated need to carry a firearm as a result of his occupation, employment, profession or other relevant factor of activities. In determining whether or not the applicant has a demonstrated need to carry a firearm, the Board of County Commissioners may consider any one or more of the following factors:
(1) Whether or not there exists an imminent and continuing threat of serious bodily harm to the person of the applicant based upon a consideration of the individual circumstances of the applicant that are different in kind and degree from that of the general public.
(2) Whether or not the applicant is placed by his occupation, employment or profession in circumstances constituting an imminent and continuing threat of serious bodily harm to the person of the applicant based upon the individual circumstances of the applicant that are different in kind and degree from that of the general public.
(3) Availability of personnel subject to the exceptions set forth in Section 790.-25(3), Florida Statutes (1975) or other local, state or federal licensing laws, rules or regulations to provide protective services to persons or property referenced herein.
Provided, however, that the enumeration of the specific criteria hereinabove set forth shall not be interpreted or construed in any way to limit or prohibit the Board of County Commissioners from considering such additional factors or circumstances relating to the demonstrated need to carry a firearm by the applicant as the Board, in its sole discretion, deems appropriate.
The applicant shall have the burden of showing demonstrated need indicating why he should be licensed to carry a concealed weapon on his person. (Emphasis supplied).

The denial of their applications led appel-lees to file for declaratory relief. The trial court adjudged the entire subsection (f) to be unconstitutional, found it to be severable from the other subsections of this ordinance and found that the board of county commissioners did not have the authority to enact these provisions. We agree with part of this judgment and therefore affirm in part. We also agree that subsection (f) is severa-ble, but in addition find that a portion of subsection (f) is severable from the remainder of the subsection.

The trial court declared the entire subsection (f) unconstitutional because: (1) it is violative of the due process clauses of the Florida Constitution and the fourteenth amendment to the United States Constitution in that it bears no reasonable relation to any public purpose and is discriminatory, arbitrary and oppressive; and (2) it is viola-tive of the equal protection clauses of the Florida Constitution and the fourteenth amendment to the United States Constitution.

We agree with the trial court that the following paragraph of subsection (f) is facially unconstitutional:

Provided, however, that the enumeration of the specific criteria hereinabove set forth shall not be interpreted or construed in any way to limit or prohibit the Board of County Commissioners from considering such additional factors or circumstances related to the demonstrated need to carry a firearm by the applicant as the Board, in its sole discretion, deems appropriate.

This paragraph is unconstitutional because it allows the county commissioners to consider any criteria they desire and does not require the commissioners to consider the same criteria for each applicant. Such unbridled discretion allows for capricious and arbitrary discrimination in violation of the due process clauses. Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947). See also Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974). The paragraph is therefore facially constitutionally defective and thus invalid.

In addition, we find the board of county commissioners without authority to enact the above noted paragraph. The Legislature, through section 790.06, Florida Statutes (1977), only enabled a board of county commissioners to “adopt by ordinance a uniform policy and procedure for the issuance of licenses to carry concealed pistols . . . .” We interpret the words “uniform policy” to mean that the county commissioners must limit themselves to considering the same criteria for each license application. Since this paragraph says the commissioners may, in their discretion, consider additional and different criteria for each applicant, it is beyond the authority granted to the commissioners by section 790.06. Compare Iley v. Harris, 345 So.2d 336 (Fla.1977).

We disagree with the trial court in its finding that the remaining provisions of subdivision (f) are constitutionally invalid. First, these other provisions are related to the public purposes of maintaining order and reducing violence. These purposes are recognized as being related to public safety and welfare and the enactment of such provisions is a valid exercise of the state’s police power. Lasky at 15. See also City of Miami v. Kayfetz, 92 So.2d 798 (Fla. 1957).

Next, the remaining provisions of subsection (f) set forth in clearly understandable language standards for the review of applications for pistols. These standards sufficiently preclude arbitrariness or capricious discrimination on the part of the county commissioners and therefore do not violate the constitutional guarantees of the due process clauses. See Pinellas Apartment Ass’n, Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla.2d DCA 1974).

We also disagree with the trial court’s finding that the other provisions of subsection (f) concerning a “demonstrated need” violate the equal protection clauses. These remaining provisions classify persons having a need to carry a concealed pistol from those having no need. As already discussed, such classification is not arbitrary and is reasonably related to legitimate public purposes. These classification provisions also require the county commissioners to treat all persons in the same class in a similar manner. We find that this is a reasonable classification serving a valid purpose under the state’s police power. It therefore does not deny persons of their constitutional right to equal protection. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974).

Finally, we find that the provisions of subsection (f) other than the invalid paragraph do not exceed the authority delegated to the board of county commissioners by the Legislature. Section 790.06 says that the uniform policy established by the ordinance “shall be based upon, but not limited to, the following criteria . . .” (Emphasis added.) Subsections (c), (d) and (e) of this county ordinance delineate these mandatory criteria and subsection (f) prescribes additional criteria. This is allowed by section 790.06.

We hold that all of the provisions of section (f) except for the already noted invalid paragraph are constitutional and were enacted pursuant to the police power delegated to the board of county commissioners. We find that these provisions form a complete and coherent policy for the issuance of licenses. Since, the invalid paragraph can be logically separated from these provisions, this invalid paragraph should be severed from the ordinance and the remaining provisions sustained. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978); Presbyterian Homes of Synod of Florida v. Wood, 297 So.2d 556 (Fla.1974).

As the trial court did not reach the question of whether the county commissioners properly denied appellees their permit, we remand the cause to that court with the instruction to order the county commissioners to reconsider the applications of appel-lees based only upon the valid provisions of subsection (f).

REVERSED IN PART AND REMANDED.

ORFINGER and COBB, JJ., concur.


text:
    BREVARD COUNTY and the Board of County Commissioners of the County of Brevard, etc., Appellants, v. David Theodore KIMBALL and Marion Edward Lassiter, Appellees.
    No. 79-386.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Clifton McClelland and Robert L. Nabors of Nabors, Potter, McClelland, Griffith & Jones, P. A., Titusville, for appellants.
    Charles Holcomb, Merritt Island, for ap-pellees.
   DAUKSCH, Chief Judge.

This is an appeal of an amended final judgment which declared section 25-21(f) of Brevard County Ordinance No. 78-01 to be unconstitutional as violating the due process clauses of the Florida Constitution and the fourteenth amendment to the United States Constitution and as an improper delegation of power because of its failure to provide adequate standards. The final judgment is reversed in part for those reasons set forth in Brevard County v. Bagwell, 388 So.2d 645 (Fla. 5th DCA 1980) and the cause is remanded to the trial court.

REVERSED IN PART AND REMANDED.

ORFINGER and COBB, JJ., concur.


text:
    TRAVELERS INDEMNITY COMPANY, Petitioner, v. Donald V. HILL, Respondent.
    No. 80-586.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.

      James A. Scott of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for petitioner.
    Christopher C. Ford, Tavares, for respondent.
   ORFINGER, Judge.

By Petition for Writ of Certiorari, petitioner asks us to hold that the trial court failed to comply with the essential requirements of law when it denied petitioner’s motion for the appointment of a commissioner to take a deposition in the state of Ohio.

Respondent Hill, as plaintiff below, had filed a complaint alleging that Petitioner Travelers, as respondent’s insurer, had failed to pay a theft loss under a policy of insurance issued by Travelers to Hill. By amended answer, Travelers affirmatively alleged, among other things, that Hill’s ex-wife had been jointly entitled to possession of the items allegedly stolen and that she was entitled to enter the premises where the items were located and that she in fact had taken these items pursuant to an Ohio divorce decree, so that no theft had occurred.

As soon as the pleadings were closed, Travelers filed the Motion for Appointment of Commissioner to take the deposition of Shelva Hill, the former wife, alleging the need to take her deposition as a witness who would have knowledge of the removal of the items complained of and that she resided in Ohio. Anticipating the entry of the order, Travelers had set the former wife’s deposition for May 16, 1980, in Fremont, Ohio. A pre-trial conference had been called by the court for May 9, 1980, and trial had been set to begin June 9,1980. No objection to the taking of the deposition appears in the record, nor does the record reveal any motion for protective order nor any showing of good cause why the commissioner should not be appointed or the deposition taken. In fact, in the response requested by us to the petition herein, respondent does not allude to any such motion or showing of cause. By order of May 13, 1980, the trial court denied the appointment of a commissioner without asserting any reason therefor and without reference to any showing of good cause. We stayed the cause pending these proceedings.

Petitioner asserts that the trial court departed from the essential requirements of law when it denied this very substantial right, that the testimony of the witness is essential to its defense and that there would be no adequate remedy upon appeal from a final judgment. Respondent urges us to leave the trial court’s order undisturbed because: 1) there was no showing made below that an Ohio resident can be compelled to testify before a commissioner appointed by a Florida court; 2) the trial court has the discretion to deny discovery for good cause shown; and 3) if the trial court was wrong, there is an adequate remedy by appeal.

Disposing of the last point first, both parties correctly recognize that the essential prerequisite to the granting of a petition for certiorari is action by the lower court which constitutes a departure from the essential requirements of law such as will cause material injury to the petitioner throughout the remainder of the proceedings below and for which a remedy by appeal would be inadequate. Brooks v. Owens, 97 So.2d 693 (Fla.1957). It is difficult to understand how the denial of the right to take the testimony of an alleged material witness can be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result. Certiorari is the proper remedy here.

We find difficulty with respondent’s point (1) above because respondent concedes that Ohio, like Florida, has also adopted the Uniform Foreign Deposition Act. Under these circumstances, when a Florida litigant needs testimony of a witness in Ohio, the first step in the proceedings is to secure the appointment of a commissioner by the Florida court. Application is then made to the Ohio court for the process necessary to secure the attendance of the witness. It seems to us that under ordinary circumstances the appointment of a commissioner is a perfunctory matter barring some showing to the contrary by the adverse party.

We agree with respondent that the trial court has the right to deny discovery upon a showing of good cause; but this requires an affirmative showing of good cause by the party or person seeking to prevent the discovery. Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976); Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607 (Fla. 4th DCA 1975). There is nothing in the record indicating a motion for protective order or showing of good cause by respondent for the trial court to act on. Thus, there was nothing before the court on which he could have exercised his discretion to refuse to appoint the commissioner.

Finding as we do that the trial court departed from the essential requirements of law in denying the appointment of a commissioner to take the testimony of a witness in Ohio, the writ of certiorari is granted and the order appealed from is quashed, with directions to enter an order appointing a commissioner to take the testimony of Shel-va Hill in Ohio, and to allow petitioner a reasonable time to take this testimony prior to the time of trial.

Writ GRANTED; order QUASHED.

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

      . § 92.251, Florida Statutes (Uniform Foreign Deposition Act):
      Whenever any mandate, writ of commission is issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in the state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purposes of taking testimony in proceedings pending in this state.

      . Fla.R.Civ.P. 1.280.


author: PER CURIAM.

text:
    William Carlely HEWETT, Petitioner, v. STATE of Florida, Respondent.
    No. 80-606.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    William Carlely Hewett, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   PER CURIAM.

Petition DENIED on the authority of Adams v. State, 387 So.2d 498, (Fla. 5th DCA 1980).

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


author: PER CURIAM. OTT, Judge,

text:
    STATE of Florida, Appellant, v. Ernest Lee DUKES, Appellee.
    No. 79-189.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Angelo M. Ferlita of Diecidue, Ferlita, Prieto & Nutter, Tampa, and Anthony Alfonso, Jr., Tampa, for appellee.
   PER CURIAM.

In 1977 appellee was convicted of rape. He was represented throughout the proceedings by privately retained counsel. In 1979 he moved to vacate the judgment on the ground that his attorney had been incompetent and ineffectual. An evidentiary hearing was conducted; thereafter the trial court granted the motion and ordered a new trial. We affirm. Cuyler v. Sullivan, -U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Chambers v. State, 388 So.2d 1259 (Fla. 2d DCA 1980); Spencer v. State, 385 So.2d 119 (Fla. 1st DCA 1980).

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

OTT, J., specially concurring.

OTT, Judge,

concurring specially.

Until now the courts of this state have consistently denied post-conviction relief from alleged incompetence of privately retained counsel. See Capetta v. Wainwright, 203 So.2d 609 (Fla. 1967). I concur in the affirmance of an order based on a contrary view because I am forced to concede that the effect of the opinion of the United States Supreme Court in Cuyler v. Sullivan, - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333, is to overrule Capetta. However, if it were not for Cuyler I would reverse the present order.

In my opinion there are valid, if not compelling reasons, both practical and philosophical, why the ineffectualness of privately retained counsel should not be ground for post-conviction relief. I am painfully aware that I am but shouting into the wind but conscience dictates that I not only register my disapproval of this new rule, but explain the reasoning that leads me to an opposite conclusion.

First, I am apprehensive that another floodgate has been opened to inundate our courts with long-convicted but ever-hopeful felons. Unless the holding of Cuyler is to be given only prospective application, there is little we can do to escape consequences similar to the aftermath of Gideon.

It is scarcely a secret that the overwhelming majority of those convicted of crime assert that they “got a raw deal”, and it is not speculative to suggest that a very high percentage are convinced that the root of their “miscarriage of justice” lies in the incompetence of their lawyers. The new concept encourages the pursuit of that notion, and every convict has nothing to lose and everything to gain by doing so. It is wishful thinking to deny the probable consequences of this change in official attitude.

Also in a practical vein, throughout the entire course of a criminal proceeding the trial judge will now be required to spend as much time judging the competence, adequacy, diligence, preparation and even the strategic judgment of defense counsel as in the conduct of a fair trial. At a very minimum, the trial courts must now be constantly concerned that a proper record is being made, in order that a reviewing court can determine from that record whether defense counsel exhibited an acceptable standard of competence.

Viewed from another practical angle, the new rule has disturbing potential for crafty strategists to further handcuff our judicial system and turn rules designed to improve the quality of justice into tools to impede, delay and ultimately subvert justice. Those attorneys who are adjudged “incompetent” (assuming they keep their license) may soon find that a premium has been placed on their services, as criminal defendants vie for a ticket to a sure reversal should their first trial end in conviction. Instead of helping to eliminate incompetence, the new rule encourages, or at least invites, it as standard defense strategy.

A particularly vexatious ramification of the new rule concerns the role which trial courts should play in preventing the prejudicial effect of inadequate representation. What, specifically, is a trial judge supposed to do when, in his opinion, incompetence is observed? Must the trial be interrupted while new counsel is obtained? Should the judge himself undertake to privately lecture the erring attorney on how to try a case “effectively”? Must the judge second-guess each ploy and strategy attempted by the defense? Or is the judge supposed to sit quietly by and watch a long, exhausting (and expensive) trial go for naught? Finally, what happens if the learned jurist isn’t any more “learned” than the lawyer, and permits “incompetence” (as measured by the appellate court) to pass unchallenged because it simply wasn’t recognized? Does that compound the violation of constitutional rights? In short, if the law is to be that every accused is entitled to not just a lawyer, but a smart lawyer, won’t that require a judge who is even smarter?

If anyone would minimize my apprehensions as unrealistic, consider the new wrinkle patched into the California body of law as a direct result of the “modern view” of the ineffectualness of counsel. It has long been the law there, as it is in most jurisdictions, that inadmissible, prejudicial evidence admitted without defense objection is not normally reversible error. Under the “enlightened” concept that produced Cuyler, failure to object, while waiving error on the grounds of admissibility, is now taken as proof of defense counsel’s incompetence, entitling the convicted defendant to-right, a new trial! See e. g., People v. Sundlee (1977), 70 Cal.App.3d 477, 482, 138 Cal.Rptr. 834, 836. Pity the poor prosecutor (and his clients, the people of the state) forced to play with that stacked deck.

My fundamental objection to the new rule, however, goes to its implication that the Constitution guarantees every accused a perfect or at least a masterful (albeit not necessarily successful) defense, and that the state must make good on that warranty. I can find no basis for that notion.

I would be the first to agree that lawyers, whom society looks upon as experts in the law, should be held to a high standard of skill, just as doctors, dentists and engineers are expected to achieve and maintain a certain minimum proficiency. Consequently, I think it entirely proper that the State of Florida regards the practice of law as a privilege rather than a right, and that our supreme court is empowered and charged with the duty of promulgating and enforcing meaningful standards of education, character, conduct and practice for the lawyers of this state.

At that point, however, I would draw the line. In my opinion those measures fulfill any obligation the people of this state might owe to those charged with crime to reasonably insure that the lawyers who will defend them are competent to do so. It is my understanding of the function, role and duty of lawyers who practice at the criminal bar of our society that they defend an accused as vigorously, as conscientiously and as thoroughly as he would defend himself were he trained to do so. It seems to me that the new rule amends that to read “as he would defend himself were he Clarence Darrow”.

A record that discloses defense error is in no manner of speaking conclusive proof of incompetence. At best, it merely confirms that the judge or the attorney were no more perfect than the accused, whose own errors of judgment or deportment more than likely brought him to the criminal bar in the first place. To charge the state with the duty to insure that every accused received an error-free defense, upon pain of reversing the conviction and, perhaps, permitting the crime to go unpunished, is to set a “standard” that lawyers cannot meet- and that society cannot afford.

      . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.


text:
    Danny BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2159.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Steven L. Bolotin, Asst. Attys. Gen., for appellee.

      Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Monroe v. State, 369 So.2d 962 (Fla. 3d DCA 1979); Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978); Williams v. State, 338 So.2d 913 (Fla. 3d DCA 1976); Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975).


text:
    Gerald L. SICARD, Appellant, v. Dorothy J. SICARD, Appellee.
    No. 79-1946.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Bolton & Bolton and Richard A. Bolton, North Miami Beach, for appellant.
    Irma V. Hernandez and Fernando E. He-ría, Hialeah, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Rejecting the appellant-husband’s only point on appeal, we find no abuse of discretion in the trial court’s award of his interest in the marital home to the wife as lump sum alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980); Creel v. Creel, 378 So.2d 1251 (Fla. 3d DCA 1979).

Affirmed.


text:
    Nick DIGAETANO and Fincredito Trust Company, N. V., Appellants, v. Sandro PEROTTI, Appellee.
    No. 80-351.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Weinsoff & Klausner and Alan Eichen-baum, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Ronald P. Weil, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. E.Z.E., Inc. v. Little River Bank and Trust Co., 300 So.2d 43 (Fla. 4th DCA 1974); Riley v. Gustinger, 235 So.2d 364 (Fla. 3d DCA 1970).


text:
    William SUTTON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1419.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.

      William Sutton, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, 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 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Len Charlton SCOTT a/k/a Len C. Scott, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1855.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Len Charlton Scott, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


text:
    Len Charlton SCOTT a/k/a Len C. Scott, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1856.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Len Charlton Scott, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


author: BLANCHE, Justice. DENNIS, Justice, CALOGERO, Justice, DIXON, Chief Justice.

text:
    STATE of Louisiana v. Joseph N. MARCAL, III.
    No. 64318.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    On Rehearing June 23, 1980.

      F. Irvin Dymond, Dymond, Crull, Casta-ing, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

The defendant was convicted after a bench trial of two counts of public bribery in violation of La.R.S. 14:118. He was sentenced to one year at hard labor on each count, the sentences to run concurrently. The first count of the indictment alleged that on or about March 20, 1975, the defendant paid Mrs. Dorothy Boyd, an Orleans Parish Deputy Clerk of Court, two hundred dollars in cash to assign one of his cases to a particular section of Criminal District Court. The second count alleged that the identical offense took place on May 16, 1975 and that the defendant gave Mrs. Boyd a check for two hundred dollars.

Mrs. Boyd testified, under a grant of immunity, that she had assigned the cases as Mr. Marcal requested and that he had paid her for these services. Her testimony was corroborated by other state witnesses. The defendant’s former secretary, Mrs. Beatty, testified that on the day of the first allotment, the defendant had taken two hundred dollars from his law office. Later, she claimed he told her that he had used the money to bribe Mrs. Boyd. On May 16, 1975, the defendant asked Mrs. Beatty to stay late to give an envelope to Mrs. Boyd. Mrs. Beatty testified that she had opened the envelope and found a two hundred dollar check payable to Mrs. Boyd on Mr. Mar-cal’s Attorney-at-Law account. She further testified that she gave the envelope to Mrs. Boyd. Mr. Mitchell, an attorney who had rented office space from the defendant, testified that the defendant often boasted that he could have cases assigned to a particular section and that he had witnessed the May 16 transfer of the check.

The defendant argued both alibi and the lack of credibility of the witnesses. Both Mrs. Beatty and Mr. Mitchell admitted to having financial disputes with the defendant. Further, the state failed to produce the check or any records from the banks which would verify its existence. On appeal, the defendant has urged fifteen assignments of error.

Assignment of Error Number 2

' The defendant urges that the trial court erred in failing to require the state to disclose the content of oral inculpatory statements. The defendant had requested in a bill of particulars the details and content of any oral inculpatory statements. The state responded that the defendant had made numerous oral inculpatory statements to certain named persons but that he was not entitled to the contents. The court ruled this answer sufficient. The defendant concedes that he has no statutory right to these statements but maintains that he is entitled to the contents of oral statements which were part of the res gestae. He argues that since the offenses charged have substantial elements which are both physical and verbal, that he is entitled to these statements because of his right to “be informed of the nature and cause of the accusation against him.” La.Const. Art. 1, § 13 (1974). The law is well settled that this constitutional provision requires the state to inform the defendant in sufficient particularity so that he is able to prepare for trial, to allow the court to determine the admissibility of the evidence and to afford the defendant protection from subsequent prosecution for the same offense. State v. Meunier, 354 So.2d 535 (La.1978); State v. Thomas, 260 La. 784, 257 So.2d 406 (1972). The bill of particulars is not intended to be a discovery device whereby a defendant may discover the state’s evidence or the details of the state’s case. State v. May, 339 So.2d 764 (La.1976). We view this as an attempt by the defendant to use the bill of particulars so as to discover the evidence whereby the state intends to prove its case. The trial court properly denied the defendant’s motion.

Assignment of Error Number 3

By this assignment of error, the defendant urges that the trial court erred in denying his motion to recuse the district attorney and his staff. The defendant requested recusal of the district attorney under La.G. Cr.P. art. 680 which provides in pertinent part:

“A district attorney shall be recused when he: (1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice;..."

In support of this motion, the defendant alleged that the district attorney had borne a personal grudge against him since the defendant had requested his recusal in State v. Villarubia. The defendant alleges that the proceedings in that case degenerated to the point where he accused the district attorney’s wife, Anita Connick, of perjury and attempted to have her prosecuted on that charge. The district attorney testified at the hearing on the motion that although he remembered the charges levelled at his wife, his memory was vague since at the time, he felt that they lacked substance. None of the other witnesses called could contradict Mr. Connick’s assertion that vengeance did not play a part in the prosecution.

In an action to recuse the district attorney, the defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Snyder, 256 La. 601, 237 So.2d 392 (La.1970). In Snyder, this Court held that the district attorney should be recused where there had been personal animosity between the district attorney and the defendant, even if the district attorney claims that those feelings no longer exist.

This case is distinguishable from Snyder. In the instant case, the trial court concluded that no animosity existed, or had existed, between the two. In his reasons for denying the motion, the trial judge noted that the defendant had been given an opportunity to cooperate with the district attorney’s office and to receive some consideration for his cooperation, which would negate an abiding personal vendetta on the part of the district attorney’s office. Based on this and other reasons, the judge concluded that there was no animosity on the part of the district attorney. There is nothing in the record showing any personal or political confrontations between Mr. Con-nick and the defendant. We can not conclude that the trial court’s ruling on the Motion to Recuse was erroneous; therefore, this assignment is without merit.

Assignments of Error Numbers 5 and 16

The defendant filed a supplemental motion to quash the indictment. The motion alleged that the prosecution was merely a product of the district attorney’s hatred for him and that the indictment was the result of untrustworthy grand jury testimony. The trial court properly denied the motion. The motion is essentially an attack on the credibility of the state’s witnesses and thus requests that the trial court rule on the merits of the case. An attack on the merits of the state’s case is not properly raised by a motion to quash. State v. Marse, 365 So.2d 1319 (La.1978); State v. Atkins, 360 So.2d 1341 (La.1978).

Assignments of Error Numbers 6, 7 and 11

By these assignments, the defendant maintains that the court improperly restricted the defense’s cross-examination of the state’s witnesses.

In assignment number six, the defendant claims that he should have been allowed to ask Mrs. Beatty if she had ever dealt in narcotics.

In assignment number seven, the defendant maintains that he should have been allowed to ask Mrs. Beatty if she and Mr. Mitchell had engaged in sexual relations.

In assignment number eleven, the defendant argues that he should have been allowed to question Mrs. Boyd as to possible threats of revoking her probation by the assistant district attorney.

Code of Criminal Procedure art. 841 requires a contemporaneous objection at the time of the alleged error or irregularity. In all three of the above instances, the defense failed to object to the court’s ruling sustaining the objection by the district attorney. He thus waived his right to complain of any error in the ruling.

Assignment of Error Number 8

This assignment involves testimony by Henry Mitchell. While on the stand earlier, Susan Beatty had testified that she was upset when the defendant told her he had spent $200 to bribe Mrs. Boyd and she had asked the defendant not to risk his career for such a small advantage. During cross-examination, although the defendant attacked the credibility of Mrs. Beatty, he did not question her as to the alleged conversation. When Mr. Mitchell took the stand, the district attorney asked if he had had any conversations with Mrs. Beatty. The court overruled the defendant’s objection of hearsay and relied upon R.S. 15:496. The trial court erred. La.R.S. 15:496 does not create an exception to the hearsay rule, but rather details the requisite foundation for allowing the introduction of a prior consistent statement the fact of which is offered as corroboration. La.R.S. 15:496 requires that the testimony of a witness has been assailed as to a particular before a prior inconsistent statement can be introduced. This Court has consistently applied R.S. 15:496 in such a manner as to require an assault on a particular facet of a witness’ testimony, rather than an assault on the witness’ general credibility. State v. Nero, 319 So.2d 303 (La.1975). In the present case, the defense had made only general attacks on Mrs. Beatty’s credibility. Therefore, the question was not properly permitted. However, since this error was not a substantial violation of any constitutional or statutory right nor was it prejudicial to the defendant, we find that it was harmless error. C.Cr.P. art. 921; State v. Hopper, 253 La. 439, 218 So.2d 551 (La. 1969).

Assignment of Error Number 17

The defendant alleges that the court improperly allowed hearsay testimony by Mr. Hallum. Since the defendant failed to object to the testimony, he waived his rights pursuant to C.Cr.P. art. 841.

Assignment of Error Number 10

The defendant in this assignment contends that the trial court erred in allowing Mrs. Boyd to testify as to her “normal” procedure in fixing cases since it was irrelevant. Since the witness did testify as to the specific procedure she used in allotting the defendant’s cases, any error committed was harmless. C.Cr.P. art. 921.

Assignments of Error Numbers 12, 18 and 20

By these assignments, defendant contends that the court improperly admitted other-crimes evidence and allowed the state to argue such evidence in its closing argument.

On cross-examination of Susan Beatty and Henry Mitchell, defense counsel attempted to establish their bias with questions designed to show that the witnesses had broken their relationship with the defendant without ever having paid the rent they owed. When defendant took the stand, the prosecutor attempted to counter these suggestions. The defendant testified that Mrs. Beatty and Mr. Mitchell were obligated to him under oral leases. The prosecutor inquired if the leases had ever been reduced to writing, and defendant answered that they had. At this point, the state inquired whether the leases had been executed in order to obtain a higher appraisal from the Central Appraisal Board (CAB). The defendant answered that the leases had been executed as a prerequisite to applying for a loan from a homestead. The defense then objected to the relevancy of the questions, but the court overruled the objection. The defendant steadfastly refused to admit that the leases were designed to secure a higher appraisal, but later, in response to a question from the bench, admitted that the CAB appraisal was a necessary step in securing the loan.

The trial court has broad discretion in regulating the scope of questioning; absent an abuse of that discretion a conviction will not be reversed. State v. Lindsey, 351 So.2d 1178 (La.1977); State v. Williams, 341 So.2d 370 (La.1976). As the defendant had alleged that the state witnesses were biased in that they were attempting to avoid paying their debts, the prosecutor could properly inquire into the origin of those debts. Insofar as the defendant's claim that the prosecution was improperly introducing evidence of other crimes, no such objection was made at trial. It is well-settled that a new basis for objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La. 1976); State v. Powell, 325 So.2d 791 (La. 1975).

During closing argument defendant noted an objection to what he termed a further reference to other crimes:

“ . . . [w]hile Dorothy Boyd’s testimony was somewhat hazy to specific times and dates, it certainly rings true and there is no doubt she remembers this defendant. The further proof of that is that when she was charged, Mr. Marcal volunteered and represented her free of charge. Also, that the defendant gave her a seventy-five dollar check, by his testimony, in November or December of 1975. Now, everyone has testified that the defendant was on very shaky financial grounds; that he didn’t have a lot of money to throw around; that he was going to beg, borrow or steal or do whatever he could to get money. He wasn’t going to banks or anywheres else_”

Defense counsel objected at this point, but the objection was overruled. Taken in context, the expression “beg, borrow or steal” does not refer to any other crimes allegedly committed by the defendant. The expression refers to the financial straits in which the defendant found himself, and the unlikelihood that he would have loaned Mrs. Boyd the money and performed services for her gratis. For these reasons, these assignments are without merit.

Assignment of Error Number 22

The defendant contends that the trial court erred in denying his motion for a new trial, made on the grounds that the verdict was contrary to the law and evidence.

On appeal, this Court’s jurisdiction is limited to questions of law; therefore, if there is some evidence proving the essential elements of the crime, no question of law is presented, sufficiency of the evidence being a matter to be decided by the trier of fact. State v. Victor, 368 So.2d 711 (La.1979); State v. Madison, 345 So.2d 485 (La.1977). It follows that on review of a denial of a motion for a new trial, this Court will not review the sufficiency of the evidence presented to the trial court but will simply determine if there is some evidence of each element. State v. Mouton, 366 So.2d 1336 (La.1978); State v. Banks, 362 So.2d 540 (La.1978). A review of the record reveals there was some evidence of every essential element of the crime on both counts. La.R.S. 14:118 in pertinent part provides as follows:

“Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment or duty: (1) Public officer or employee; or ..."

Mrs. Boyd’s testimony at the trial revealed that Mrs. Boyd was a public employee and that the defendant paid her the sum of two hundred dollars on both occasions in question to alter the allotment of cases in Criminal District Court. Therefore, since there is some evidence of each and every element of the crimes charged, the assignment is without merit.

Assignment of Error Number 23

The defendant alleges that the trial court erred in denying his motion for a new trial based on the discovery of new evidence.

Article 851 provides that a new trial shall be granted when:

“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial, it would probably have changed the verdict or judgment of guilty; ...”

The test is not whether a new fact-finder might'have returned a different verdict, but whether the additional evidence is so material that it ought to produce a different result. State v. Huckaby, 368 So.2d 1059 (1979); State v. Williams, 362 So.2d 530 (La.1978). Further, a motion for a new trial is properly rejected when it is based on evidence which should have, with reasonable diligence, been discovered before or during the trial. State v. Jones, 344 So.2d 1036 (La.1977); State v. Rossi, 273 So.2d 265 (La.1973).

The defendant offered two items of evidence in support of his motion. The first item was a ledger kept by Mrs. Beatty of all of the checks written on the defendant’s Attorney-at-Law account. This ledger did not contain an entry for the two hundred dollar check to Mrs. Boyd. The evidence at trial indicated that the entries were made as the checks were written. As Mrs. Beatty testified that the defendant had written the check and she was not aware of its existence until shortly before Mrs. Boyd picked up the check, the lack of an entry by Mrs. Beatty proves nothing. Further, the defendant testified that the ledger itself was unavailable at trial because it had slipped behind a file cabinet. This is not a convincing assertion that the defendant exercised due diligence in his attempts to discover this evidence.

The second item of evidence produced at the trial was a letter from the Bank of New Orleans stating that the bank was unable to locate any check to Mrs. Boyd, drawn on the defendant’s account, which cleared on May 17, 1975. The defendant has failed to demonstrate why this information was unavailable at the time of the trial. Further, we note that although Mrs. Boyd may have been mistaken about the day she cashed the check, she may still have been telling the truth about the other aspects of the case. Therefore, we conclude that the defendant did not demonstrate that this new evidence was so material that it ought to have produced a different result. Further, he has not shown why this evidence would not have been available for trial with the exercise of reasonable diligence.

For the reasons above, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

When the defendant’s motion for a new trial is examined on the merits, as required by the recent Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which held that the Fourteenth Amendment’s due process clause requires that a criminal conviction be based on “sufficient evidence to justify a rational trier of the facts . . . [finding] guilt beyond a reasonable doubt,” I conclude that, although the state presented a weak ease, a rational trier of fact could have found guilt beyond a reasonable doubt.

CALOGERO, Justice,

concurring.

Although I agree that assignment twenty-two is without merit, the majority, in my view, has applied an improper standard of review. The majority finds that because there was “some evidence” of each essential element of defendant’s crime, the denial of the motion for a new trial was not error. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), however, this Court is required to apply a different standard: it must determine after resolving conflicting testimony in favor of the state, whether there is “sufficient evidence to justify a rational trier of the facts . . . [finding] guilt beyond a reasonable doubt.”

Although the state failed to produce the check allegedly payable to Dorothy Boyd, it did present testimony of Mrs. Boyd, Henry Mitchell, and Susan Beatty that such a check was drawn on the defendant’s account at the Hibernia Bank payable to Mrs. Boyd and that the payment was in return for Mrs. Boyd’s assignment of cases. This evidence in my view was sufficient evidence under the standard of Jackson.

ON REHEARING

DIXON, Chief Justice.

Rehearing was granted in this case to reconsider defendant’s Assignment of Error No. 3 complaining of the denial of his motion to recuse the district attorney.

Defendant argues that there was such animosity on the part of the district attorney toward the defendant, and such a “long standing vendetta,” that the grounds for the recusal of the district attorney described in C.Cr.P. 680(1) were present. The “personal interest” and animosity, it is argued, resulted from a prosecution of one Villarubia, a matter in which the wife of the district attorney had been interested as an attorney, having represented, as a lawyer, some of the parties involved. Mrs. Connick had testified, it is alleged, and defendant accused her of perjury, and sought her prosecution, which should have caused the district attorney to become so hostile and full of animus toward the defendant that he could not prosecute fairly and impartially.

The record does not support the defendant’s complaint, nor his argument. On the motion to recuse, only the district attorney and some assistants, and one Baumler, testified. The district attorney testified that he had known defendant for a number of years, and held no personal animosity toward him. His testimony was neither shaken nor contradicted.

The assistant district attorneys only testified to a meeting with Mr. Baumler, who was representing the defendant. At this meeting, the assistant district attorneys informed Mr. Baumler that there was an investigation into allegations of criminal conduct involving defendant and others. The assistant district attorneys inquired of Baumler whether Marcal would consider cooperating with the prosecution in return for some limited grant of immunity.

No other evidence was offered. There is no evidence in this record to support a contention that the district attorney had such personal animosity that his personal interest conflicted with the fair and impartial administration of justice. In fact, there is no evidence in the record that Mr. Connick himself participated in any way in initiating or deciding to proceed with this prosecution against the defendant. Mr. Connick did not know about the facts of this case until after the investigation of the charges against defendant had been commenced by the district attorney’s staff.

The defendant bears the burden of proving that the district attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Snyder, 256 La. 601, 237 So.2d 392 (1970). There is no error in the trial court’s ruling on the motion to recuse.

Our original opinion is reinstated, and the conviction and sentence of the defendant are affirmed.

      . “A district attorney shall be recused when he:
      (1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice;
      ...” (C.Cr.P. 680(1)).