text:
    Daniel Chavarria MATA and Ismael Gonzales Chavarria, Appellants, v. The STATE of Florida, Appellee.
    No. 79-662.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Pertnoy & Greenberg, Miami, Sam L. Foster, Monterey, Cal., for appellants.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Defendants, Daniel Mata and Ismael Cha-varria, appeal an order denying their motion to suppress eight pounds of pure cocaine which formed the basis of the charges against them, possession with intent to sell a controlled substance. The undisputed facts are as follows:

On the morning of July 28, 1978, Officer Wolfe observed the defendant Ismael Cha-varria purchasing for cash two one way tickets to San Francisco at the National Airlines ticket counter. She called Detective D’Azevedo who was on duty at the airport to assist in the observation of Cha-varria in that D’Azevedo has extensive training in narcotics investigation and observes passengers at Miami International Airport on a daily basis. D’Azevedo’s investigation revealed that the defendants had just arrived in Miami and later by checking with National Airlines learned the two were scheduled to return to San Francisco late that afternoon. After claiming their luggage Mata and Chavarria made a phone call, then took a taxi to a nearby motel and paid cash for the room. Police surveillance continued and Chavarria was observed leaving the room twice to make calls from the lobby pay phone. About 3 p. m. Mata and Chavarria, carrying a brief case and man’s purse, emerged from the room and were met by a third man with whom they drove away. The police followed the vehicle but fearing discovery, discontinued the surveillance. Detective D’Azevedo returned to the airport and learned that 1) Chavarria and Mata had rescheduled their departure to 9:00 p. m., 2) the “call-back” telephone number they had given to National Airlines was a nonexistent number, and 3) they had traveled a circuitous route from San Jose to San Francisco to Los Angeles to Houston then to Miami but were returning directly to San Francisco. D’Azevedo decided to call for a narcotics dog from the U. S. Customs Department. At 8 p. m. Mata and Chavarria arrived at the airport and checked their luggage (two suitcases and a tote bag) which was placed on a chute to the baggage area and entered on the baggage carousel (a 200 foot moving circular conveyor belt). Detective Johnson who was down in the baggage area was contacted by D’Azevedo who gave him a description and the claim check numbers of the subject luggage. Thé narcotics dog, “Dewey”, was brought in by his handler. Dewey sniffed the bags on the carousel and alerted on Mata’s and Chavar-ria’s bags. Johnson then removed their bags and placed them amongst other luggage positioned about 20 feet away from the carousel. Dewey again went up and down sniffing at all the bags and alerted on those bags belonging to Mata and Chavar-ria. . Detective Johnson immediately called back D’Azevedo and told him that Dewey had positively alerted on the subject bags. Mata and Chavarria were arrested and a warrant was subsequently obtained to search the bags in which were found several glassine bags of cocaine. As a result, Mata and Chavarria were charged with possession of cocaine with intent to sell. They filed a motion to suppress, essentially contending that the use of the narcotics dog, Dewey, to sniff the bags and the touching of these bags by Detective Johnson amounted to an illegal search and seizure. After an evidentiary hearing, the motion to suppress was denied and this appeal ensued. We affirm.

First, there is authority to the effect that the use of a narcotics dog cannot be considered a search. See United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (D.C. Cir. 1974). Where there has been no search, the constitutional guarantee against unlawful searches and seizures is not applicable. Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976). With regard to the contention of an illegal seizure, the law clearly defines a seizure as the act of taking custody of evidence or contraband. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978). Seizure also has been defined as the taking of possession forcibly, to grasp, to snatch or to put into possession. State v. Dees, 280 So.2d 51 (Fla. 1st DCA 1973). There can be no constitutionally recognized “seizure” in the case at bar as Detective Johnson, after the narcotics dog Dewey alerted on the subject luggage, simply removed those pieces from the baggage carousel and then placed them some 20 feet away amongst other baggage.

The search and seizure provision of the Florida Constitution generally imposes no higher standard than that of the 4th Amendment to the U. S. Constitution. State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979).

Broadly speaking, a search and seizure under the 4th Amendment covers any official invasion of a person’s expectation of privacy as to his person, house, papers or effects. State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979). Specifically what the Florida and the U. S. Constitutions forbid is not all searches and seizures but only unreasonable searches and seizures. However, they do not forbid the application of common sense in the detection of crime and apprehension of criminals. State v. Nittolo, 317 So.2d 748 (Fla.1975). Just exactly what is reasonable in the 4th Amendment sense always depends on a balance which must be struck between, on the one hand, the level of official intrusion into individual privacy and, on the other hand, the public interest to be served by such intrusion. U. S. v. Himmelwright, 551 F.2d 991 (5th Cir. 1977). Therefore, the courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). In reviewing the above criteria, we first considered the justification for use of the narcotics dog. Detective D’Azevedo either observed or had knowledge of some of the following which led him to the conclusion that Mata and Chavarria were drug couriers: 1) after having taken a circuitous route to Miami, they arrived in the late morning with three bags and were scheduled to take a direct return flight to San Francisco later that date, 2) all transactions were paid for in cash, 3) all calls at the hotel were made from the lobby pay phone and not their room, 4) a false call-back telephone number had been given to the airlines, and 5) they obviously were wary of being followed in their car when they were picked up by a third party at the hotel and were driving in such a fashion so as to detect surveillance.

At the very least, the police had a founded suspicion that Chavarria and Mata were engaged in criminal activity and were justified in obtaining a narcotics dog. The dogs never react positively to baggage which does not contain narcotics such that if an innocent person’s suitcase were “sniffed” the handler would learn only that illicit drugs were not present and there would be no annoyance, inconvenience or humiliation connected with the surveillance. The invasion of privacy is not aimed at the person but rather his luggage. Thus, the scope of the intrusion is minimal, restrictive and tolerable by society. See U. S. v. Bronstein, 521 F.2d 459 (2d Cir. 1975); U. S. v. Solis, 536 F.2d 880 (9th Cir. 1976). The canine surveillance itself was conducted in the baggage area of a public airline terminal out of the view of the general public and was, therefore, permissible. See U. S. v. Bronstein, supra.

The use of the dog, Dewey, trained to detect cocaine, was reasonable under the facts of the instant case and, therefore, not violative of the search and seizure provisions of the state or federal constitutions. Compare State v. Elkins, 47 Ohio App.2d 307, 354 N.E.2d 716 (1976).

Affirmed.

      . We therefore do not reach the issue of the necessity of obtaining a warrant before the police could search the bags.

      . There is no question that Detective Johnson had a right to be in the baggage area as the entire airport is owned by Metropolitan Dade County.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard RITCHEY and Mary Louise Ritchey, his wife, Appellants, v. William CONDER and Deloris Conder, his wife, Appellees.
    No. 79-1188.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.

      Douglas P. Solomon, North Miami Beach, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Andrew W. Horn, Miami, for appel-lees.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1911); 17 Am.Jur.2d “Contracts,” § 24 (1964); 17 C.J.S. “Contracts” § 43, pp. 686-687 (1963).


author: BASKIN, Judge.

text:
    UNIVERSAL ENGINEERING CORPORATION, and Employers Insurance of Wausau, Appellants, v. Andrew CARTIER, Appellee.
    No. 79-1216.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Pyszka, Kessler & Adams and Ramon Malea, Miami, for appellants.
    Neil Chonin, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

In this appeal, we are asked to determine whether the trial court properly awarded attorney’s fees to claimant’s counsel in an equitable distribution proceeding. We hold that the trial court erred in making the fee award and reverse.

Appellee, Andrew Cartier, was awarded $25,350.86 in workmen’s compensation benefits from his employer’s insurer following a work-related injury.

Cartier then sued Universal Engineering Corporation, the manufacturer of the rock crusher, for defective design. The jury awarded Cartier $75,000 reduced by his 30% comparative negligence or $52,500 plus costs. Upon settlement after appeal was filed, Cartier received $53,250.

Although Cartier claimed the insurer was entitled to $242.80 on its subrogation lien, the insurer sought $10,000. ' The trial court awarded the insurer $2,500 in the equitable distribution proceeding on its subrogation lien and awarded, in addition, counsel fees of $2,780 based solely upon counsel’s affidavit. Because we find error in the award itself, we do not reach the question of the manner used to determine the amount of attorney’s fees, but note that appellee has confessed error on that point.

Both parties agree that Section 440.-39(3)(a), Florida Statutes (1973), does not authorize an award of attorney’s fees in an equitable distribution proceeding.

Attorney fees contemplated under this section are for the prosecution of the suit against the third party tort feasor, and by the clear language of the statute it does not appear that the legislature intended to provide fees for opposing any claim which might be made in connection wtih [sic] the “equitable settlement” provided for in the statute. There is no ambiguity in the statute upon which a claim for attorney fees for such service might be resolved in favor of the appel-lee.

Insurance Company of Texas v. Rainey, 86 So.2d 447 (Fla.1956) at p. 450.

Appellee argues that Section 440.34(1), Florida Statutes (1973), authorizes the award. He contends that a claimant should not be required to pay his own legal fees in attempting to retain past benefits paid, citing Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977) for the proposition.

Parrish, supra, involved successful opposition to the modification of an equitable distribution order. It dealt with Section 440.34, Florida Statutes, as the basis for an award of attorney’s fees on review of an equitable distribution award, and is therefore distinguishable from the case before this court.

Section 440.34(1), Florida Stathtes (1973), states:

If the employer or carrier shall file notice of controversy as provided in § 440.20, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorney’s fee, to be approved by the division which may be paid direct to the attorney for the claimant in a lump sum. If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the cburt may direct.

Thus, only a judge of industrial claims may award an attorney’s fee in an original proceeding. A court may award a fee only where it reviews a claim. State ex rel. Hartford Accident & Indemnity Co. v. Johnson, 118 So.2d 223 (Fla.1959). In the case before this court, the trial court heard the case as an original proceeding and therefore lacks authority to award a fee.

We find the trial court committed error in awarding attorney’s fees to claimant’s counsel in an equitable distribution proceeding.

For the foregoing reasons, we reverse the decision of the trial court awarding attorney’s fees.

      . Section 440.39(3)(a), Florida Statutes (1973) states:
      Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law, based upon such equitable distribution of the amount recovered as the court may determine, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for plaintiffs attorney . . .


author: BARKDULL, Judge.

text:
    ALARM SYSTEMS OF FLORIDA, INC., Appellant, v. Edward R. SINGER et al., Appellees. Edward R. SINGER et al., Appellants, v. ALARM SYSTEMS OF FLORIDA, INC., Appellee.
    Nos. 79-1308, 79-1708.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Preddy, Kutner & Hardy and Edward C. Rubinoff, Miami, for Alarm Systems.
    Paige & Catlin and Kyle R. Saxon, Miami, for Singer’s and St. Paul.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   BARKDULL, Judge.

Following the prior opinion in this cause, reported in Singer v. I. A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977), this matter recurred in the trial court for a trial of the issues as made by the pleadings. The trial resulted in a judgment in favor of St. Paul Fire Insurance Co. on the amount it had paid on the loss occasioned by the burglary of scheduled items of personal property, and liquidated the amount claimed by the Singers to have been the loss of non-scheduled property, to wit: certain jewelry; and thereupon entered a final judgment for said amounts and incorporated pre-judgment interest from the date of the burglary for Singer and from date of payment by St. Paul Fire Insurance Co. Alarm Systems filed a notice of appeal and thereafter filed a motion to amend the judgment by striking the pre-judgment interest. The trial judge granted the motion to amend, struck the pre-judgment interest, and the plaintiffs appeal this order which appeal was consolidated with the earlier appeal from the judgment in chief.

We affirm the final judgment as rendered by the trial judge as to the amount of the loss and the responsibility of the defendant for such loss, there being ample evidence to support such recovery under the issues as made by the pleadings. We find that the trial judge \vas without authority to disturb the final judgment, which was then on appeal, by the motion to amend to strike the pre-judgment interest. Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971); State v. Seay, 355 So.2d 822 (Fla. 4th DCA 1978); General Portland Land Development Company v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978).

However, concerning the appellant’s point addressed to the pre-judgment interest (preserved in the original appellate proceedings), we find that the trial court was correct in awarding the pre-judgment interest to St. Paul Fire Insurance Co., because its claim was liquidated in amount when it paid the damages for the loss of the scheduled items; this was a fixed amount as of the time it was paid and interest should be allowed from the date of the payment.

As to the interest awarded to the Singers, we reverse. Their claim for damages for the loss was not fixed until a determination was made by the trier of fact as to amount and, therefore, it was unliquidated and no pre-judgment interest should have been awarded. Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla. 2d DCA 1972); McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979).

The final judgment, as originally entered on June 11, 1979, be and the same is hereby affirmed, except that portion which awarded pre-judgment interest to the Singers and, in that respect, it is hereby modified by striking said interest award.

Affirmed, as modified.


text:
    John Henry KING, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 79-1543.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Raskin & Grande and Carling Stedman, Miami, for appellant,
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. Dykman v. State, 294 So.2d 633, 637-638 (Fla.1973); Finley v. State, 378 So.2d 842 (Fla. 1st DCA 1979); Barnason v. State, 371 So.2d 680 (Fla. 3d DCA 1979); Green v. State, 363 So.2d 188 (Fla. 1st DCA 1978).


text:
    Samuel DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1556.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Carol King Guralnick, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

      Before HENDRY, H.UBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See State v. Robinson, 336 So.2d 437 (Fla. 2d DCA 1976), cert. denied, 341 So.2d 1085 (Fla.1977).


author: SCHWARTZ, Judge.

text:
    Denise M. BIENVENU, Appellant, v. Robert P. BIENVENU, Appellee.
    No. 79-1780.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Carolina A. Lombardi and Elizabeth S. Baker, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

In a final judgment of dissolution, the trial court divided custody of the parties’ two sons, aged four and two respectively, so that — until the older boy reached school age when the issue was to be redetermined— they would alternately spend 5¾ months with their father, who lives in New Orleans, and 5¾ months with their mother in Dade County. Each parent’s right to custody was conditioned upon the posting of a $1,750 bond. Mrs. Bienvenu appeals from these determinations. We reverse.

The parties, who were married in Dade County in 1975 while the husband was in the Air Force, had been engaged in a bitter dispute over their own relationship and, more significantly, over the custody of their children. At the final hearing, each, to say the least, had uncomplimentary things to say about the other. The trial court decided that, under the circumstances, “both [parents] should have a shot of having these kids for a period of time.” For that reason alone, he entered the “rotating” custody award now in question. That determination cannot be approved.

It is well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained. E. g., Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749 (1946); Unger v. Unger, 306 So.2d 540 (Fla. 3d DCA 1975); Wonsetler v. Wonsetler, 240 So.2d 870 (Fla. 2d DCA 1970). The essential reason for this rule lies in the fact that, in the usual case, such an arrangement does not promote what is the only proper concern in custody cases: the best interests of the child. As the supreme court said in the Hurst case, supra, at 27 So.2d 750:

[T]he question may be . narrowed to the one whether the welfare of the child will be promoted if he is placed with first one parent and then the other, his home life interrupted every half-year. It is thoroughly established that in such circumstances the primary concern of the court is the well-being of the child, and we have grave doubt that an infant three years old can develop normally and thrive if at the end of every six months he is removed from surroundings familiar to him and forced to become accustomed to new ones. The predicament of the child would probably be further complicated by the fact that both parents have remarried.

This doctrine applies with even greater force to this case. The situation confronting the children during each successive period of custody and at and after each exchange would be rendered even more distressing by the fact that their mother and father are so mutually antagonistic. Moreover, in Rudolph v. Rudolph, 146 So.2d 397 (Fla. 3d DCA 1962), this court made it very clear that, contrary to the judgment below, these considerations may not be overridden by a concern, however well-intended, that justice be done to the parents. At 146 So.2d 399, we said:

There is no doubt but that the chancellor was attempting by this arrangement to be fair to each of the parties. In custody matters, however, it is not the rights of the parties which are of paramount importance, but the best interests of the minor. Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749. Divided custody which involves periodic removal from familiar surroundings is not desirable nor conducive to a child’s welfare, [citing cases]

See also, e. g., Lee v. Lee, 43 So.2d 904 (Fla.1950); Peterseil v. Peterseil, 307 So.2d 498 (Fla. 3d DCA 1975); Julian v. Julian, 188 So.2d 896 (Fla. 3d DCA 1966). This is not to say that a divided-custody arrangement may not be approved when justified by some particular circumstances which would tend to ameliorate its undesirable effects. Such factors might include, for example, older and more mature children, parents who live near each other or are willing to cooperate in lessening the impact of the changes in custody, and a division of periods of custody which is related to actual events in the children’s lives, such as between school and holiday periods. See, e. g., Dworkis v. Dworkis, 111 So.2d 70 (Fla. 3d DCA 1959), cert. denied, 115 So.2d 6 (Fla.1959). See generally Annot., Comment Note — “Split,” “divided,” or “alternate” custody of children, 92 A.L.R.2d 695 (1963). The case at bar, however, involves none of these circumstances, nor any similar one. To the direct contrary, it presents a classic case for the application of the general principle that children should not be divided in half, either physically, as Solomon wisely only proposed, or temporally, as unwisely actually effected in the judgment under review.

We also find merit in the appellant’s claim of error in the requirement that she post a bond “to guarantee the children are not removed from the State of Florida.” Apart from two years spent with her husband in service, Ms. Bienvenu and her family have lived in South Florida all her life. Both she and her fiance are employed in Dade County. There is no evidence that she has violated any court order in the past and, in sum, no basis whatever for believing that she might remove the children from the state. Compare, e. g., Metz v. Metz, 108 So.2d 512 (Fla. 3d DCA 1959). Based upon “the circumstances of the parties and the nature of the case,” as stated in Sec. 61.-13(4), Fla.Stat. (1977), which authorizes a dissolution court in a proper case to require that security be posted, there was thus no foundation for the bond provision. On this record, it constituted, in effect, an unsupported finding that the appellant was likely to be in contempt of the custody order, and served only to interpose an unjustified financial barrier between the children and their mother. The trial court therefore abused its discretion in entering that portion of the judgment below.

We do not agree with the appellant’s final contention that the custody of the children must be awarded to her. The issue of which of the two parents should be granted custody should be initially considered and ruled upon by the trial court after remand. In making that determination, the court may take such further testimony, bearing upon the best interests of the children, as it deems advisable.

The custody provisions of the final judgment under review are therefore reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

      . Because the rotating custody was to remain in effect only until the older child reached the age of six, the wife has taken an “interlocutory” appeal pursuant to Fla.R.App.P. 9.130(a)(3-)(C)(iii). Since, however, the award in question was contained in the final judgment, only a plenary appeal under Fla.R.App.P. 9.110 is appropriate and, in accordance with Fla.R.App.P. 9.040(c), we have so treated this proceeding.

      . The 53/⅜ month period was selected only to avoid the establishment of another “home state” of the children, which might have occurred under the Uniform Child Custody Jurisdiction Act, §§ 61.1306(5), 61.1308, Fla.Stat. (1977), if they spent six months in another jurisdiction. We need not belabor our extreme disapproval of basing a ruling which should concern only the welfare of the children upon such a consideration.


text:
    Mark Edward HOPKINS, Petitioner, v. Frederick N. BARAD, Judge of the Circuit Court in and for Dade County, Respondent.
    No. 79-2099.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for petitioner.
    Janet Reno, State’s Atty., and Kurt Mar-mar, Asst. State’s Atty., for respondent.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Hopkins, who is the defendant below in a criminal proceeding, has filed a petition for habeas corpus, claiming the right to a discharge under the speedy trial rule. Treating the petition as one seeking a writ of prohibition, we have issued a rule nisi. Upon consideration of the return and response, and after oral argument, we conclude that the petition must be denied.

After being arrested in Pens.acola, Hopkins was informed against in Dade County, on April 26, 1979, on robbery and kidnapping charges. On June 19, 1979, while confined in the Escambia County jail, he filed a pro se demand for a speedy trial pursuant to Fla.R.Crim.P. 3.191(a)(2). Although the court immediately entered an order to return the defendant for trial, he was not in fact brought to Dade County until August 25, 1979 and was not arraigned until September 11. Shortly thereafter, he moved for discharge on the ground that the 60 day speedy trial period had already run. This proceeding results from the denial of that motion below.

Under the provisions of Fla.R.Crim.P. 3.191(c), which controls the issue involved in this case:

A demand for speedy trial binds the accused and the State. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial. . [emphasis supplied]

Based on the acknowledged fact that Hopkins, who was in jail in Pensacola at the time, had done nothing at all to prepare his case, the trial court held that although he had a “bona fide desire” for a speedy trial, he had not “diligently investigated his case” when the demand was made and therefore could not actually have been prepared to go to trial.

We concur with the trial judge that these unchallenged findings preclude Hopkins from successfully relying upon the speedy trial rule. This result is required by the provisions of Rule 3.191(c) itself and by State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971), where, in interpreting the rule, the supreme court said at 130:

After a demand for speedy trial has been filed, the court should not summarily dismiss a defendant at the expiration of the 60-day period provided in the rule. It is not only appropriate, but necessary, to ascertain whether or not the accused had a ‘bona fide desire’ to obtain the speedy trial and to determine whether or not the accused or his attorney ‘has dili gently investigated his case, and that he is prepared’ for trial. If these prerequisites to the filing of the demand were not met, the demand for speedy trial should be stricken as being null and void, [emphasis supplied]

See also, Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla.1973); State v. Acurse, 347 So.2d 828 (Fla. 3d DCA 1977) (dictum); compare State v. Embry, 322 So.2d 515 (Fla.1975). Hopkins cogently argues that the application of this principle has the effect of denying the benefit of the speedy trial rule to one who may sincerely desire, for his own reasons, to go immediately to trial even without the investigation or preparation which a court might deem reasonably necessary for a proper defense. See the considerations expressed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While we recognize the force of this contention, we are unable to accept it. Probably as a means of ferreting out “spurious” speedy trial demands, see State ex rel. Hanks v. Goodman, supra; State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973), the supreme court has explicitly conditioned the right to require a speedy trial on demand upon an objective showing that the defendant is “really” ready for trial. Unless and until the rule is changed, the courts are bound by its clear terms. State v. Lott, 286 So.2d 565 (Fla.1973); State v. Battle, 302 So.2d 782 (Fla. 3d DCA 1974).

Petition denied; rule nisi discharged.

      . Hopkins relies only on the rules of criminal procedure and presents no claim either that they are invalid as applied to his situation or that he is entitled to discharge because of a violation of his constitutional right to a speedy trial. Compare Suggs v. State, 358 So.2d 55 (Fla. 2d DCA 1978).


text:
    Teresa A. FOGEL, Appellant, v. A & M MACHINERY COMPANY, INC., Appellee.
    No. 79-2298.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Teresa A. Fogel, in pro. per.
    Roberts & Holland and Jeffrey S. Tanen, Miami, for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Schmidt v. Mueller, 335 So.2d 630 (Fla. 2d DCA 1976); Wong v. von Wersebe, 365 So.2d 429 (Fla. 3d DCA 1978); Brody Const., Inc. v. Fabri-Built Structures, Inc., 322 So.2d 61 (Fla. 4th DCA 1975), and Mariani v. Schleman, 94 So.2d 829 (Fla.1957).

      . As to the capacity of appellant Teresa Fogel to institute any action on behalf of appellant Fabco Industries, that issue already has been determined adversely to Ms. Fogel. See Fabco Industries, Inc. v. A & M Machinery Co., Inc., 367 So.2d 1136 (Fla. 3d DCA 1979).


text:
    Albert INFANDE and Betty Infande, his wife, on behalf of themselves and all others similarly situated, including all purchasers out of possession of condominium units at Apple Green Condominium Apartments I, Individually, jointly and severally, Appellants, v. SELIGMAN OF FLORIDA, INC., Guardian Housing Systems, Inc., Apple Green Condominium Association, Inc., The City of Margate, Arthur Kopelman, Herbert Adler, Gene V. Giarratana and Apple Green Management Corp., Appellees.
    No. 77-975.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Robert D. Hurth and Alan Fishman of Robert D. Hurth, P.A., Fort Lauderdale, for appellants.
    Eugene M. Steinfeld, City Atty., Mar-gate, for appellee, City of Margate.
   PER CURIAM.

Appellants (plaintiffs below) brought an action for negligence, fraud and deceit against the appellee — City of Margate for the manner in which building inspections were conducted by the City’s inspectors and the failure to disclose alleged defects in the buildings upon issuance of certificates of occupancy.

The trial court dismissed the complaint with prejudice and entered a final judgment in favor of the defendant City after the appellants elected not to amend their complaint to attempt to state a cause of action against the City. Although the appellants brought the action under Section 768.28 Florida Statutes (1975) (waiver of sovereign immunity), they alleged insufficient facts to support their contention that this waiver of immunity statute applied against the appellee City.

The effective date of Section 768.28 Florida Statutes (1975) as a waiver of the City of Margate’s immunity was January 1, 1975. Neither the complaint nor the record reveals that the incident giving rise to the cause of action occurred on or after this date.

We agree with the decision of the trial court. Further, the appellant has failed to demonstrate reversible error. Under the facts of this case, as stated in the initial complaint and in the record on appeal, we find Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) controlling. We accordingly affirm the decision of the trial court.

DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.


text:
    SHELBY WILLIAMS INDUSTRIES, INC., Appellant, v. Brynece A. McLACKLAN, Herbert A. McLacklan and Diplomat Hotel, Inc., Appellees.
    No. 77-2248.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Paul R. Regensdorf and Frank E. Malo-ney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Edward G. Rubinoff, of Preddy, Kutner & Hardy, and Marc Cooper, of Greene & Cooper, Miami, for appellee Diplomat Hotel, Inc.
   PER CURIAM.

Since oral argument in this case the Florida Supreme Court issued its opinion in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979) which we find controlling. Accordingly, this cause is affirmed.

DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.


text:
    Edward ARTIS, Frank Alfonso, Robert Boling, Richard Bomgardner, Raymond Crapio, Steve Davis, Ralph Falkner, Anthony Fierro, Edward Galizia, Jeffery Holmes, Donald Lancaster, Theodore Leggins, Napolean Montgomery, James Moore, Gerald Music, Ralph Perrothers, Edward Schroeder, Scott Skinner, Warren Sutton, George Towers, Steve Valsamidias, and Jon Wilson, Appellants, v. STATE of Florida, Department of Health and Rehabilitative Services and the Career Service Commission of the State of Florida, Appellee.
    No. 78-532.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Alan H. Konigsburg of Mavrides, Lati-mer, Shamres, Konigsburg & Platt, Fort. Lauderdale, for appellants.
    Harold L. Braynon, Fort Lauderdale, for appellee.
   PER CURIAM.

This cause is before the court upon an appeal from the Career Service Commission which upheld orders of the Department of Health and Rehabilitative Services suspending or terminating the appellants from their positions as security guards at South Florida State Hospital. Another aspect of this same dispute was before this court in State Dept. of Health and Rehab. Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977) and the underlying facts thereof are set out in that opinion.

At issue is whether the Commission’s decision is supported by competent substantial evidence. Andrus v. Florida Dept. of Labor and Employment Security, Division of Employment Security, 379 So.2d 468 (Fla. 4th DCA 1980).

The findings of fact of the Commission are set out as follows:

1. Even though some irregularities occurred in the preparation and mailing of notices of suspension and dismissal because of the crisis situation, the Appellants were properly notified of their suspensions and dismissals and their right to appeal to the Career Service Commission. They timely filed their appeals with this Commission, the appeals were accepted for hearing, and this Commission has jurisdiction of the cause.
2. The issue to be determined by this Commission is whether the Agency had good and just cause to effect the suspensions and dismissals of the Appellants named herein.
3. Prior to September 19,1976, Mr. Robert Kelly, District Administrator for District X of the Agency, had been meeting with a representative group of employees attempting to obtain additional salary increments for security officers at the hospital, representing hazardous duty pay, and he had been attempting to obtain an answer to this request from the Department’s headquarters in Tallahassee. At a meeting prior to September 18, 1976, at which time another meeting was scheduled, the group of representatives meeting with Mr. Kelly consisted of Appellants Galizia, Perrothers, and Montgomery.
4. Evidence presented revealed that a personnel action in the form of a sick-out had been originally planned by the security officers on the day shift for Monday, September 20, 1976; however, upon the group learning that the administration had been advised of such action, the sickout was moved forward to Sunday, September 19, 1976.
5. On September 18, 1976, during the evening hours, and the morning hours of September 19, 1976, some 23 of the 26 security officers due to report at 7:00 a. m. on Sunday, September 19, 1976, called into the Agency reporting they were sick.
6. Prior to or at the expiration of the night shift’s schedule, an attempt was made by the Agency to notify the members of that shift to remain on duty, to wait for a meeting with the Chief of Security and Mr. Robert Kelly, District Administrator. In spite of this request and the obvious nonappearance of the day shift relief, night shift employees, except in certain instances, left their posts of duty. They signed out and left the hospital grounds without proper relief, thereby deserting their duty posts.
7. On September 19, 1976, around noon, Administrator Kelly’s staff attempted to reach, and did reach, most of the day shift employees, advising them to report for duty in uniform in one hour or face suspension. Certain representatives or spokesmen on behalf of the security officers requested permission to hold a meeting at the hospital at 2:00 p. m. that date with all the security staff.
8. The testimony and evidence was contradictory regarding notification to all of these security officers. It was alleged that some of the members of the night shift were not accurately or correctly advised not to leave their posts on the morning of Sunday, September 19, 1976. However, this Commission finds it difficult to imagine someone trained as a security officer, and working with mentally disturbed residents and court-hold patients, leaving his duty post without proper relief, as did these officers.
9. During the late morning of September 19, 1976, most of the security officers were contacted either by the administrative staff or the three spokesmen mentioned above and they were advised to report in uniform to the hospital grounds that afternoon ready for duty..
10. Those employees reporting for duty allegedly were directed by security on the hospital grounds to a meeting being held at the Administration Building of the hospital. At that meeting Mr. Kelly met with the men and read the group assembled a memorandum from the Lieutenant Governor concerning the types of action they were taking. At the conclusion of this meeting, Mr. Kelly advised those present that all of the night shift employees leaving their posts were suspended.
11. This Commission does not have jurisdiction under Chapter 447 and will not speak on whether the action of the men constituted a concerted job action. This Commission’s decision will be based on findings of fact in accordance with its jurisdiction under Chapter 110, Florida Statutes, and the Personnel Rules and Regulations relating thereto.
12. The Agency offered each of the affected individuals an opportunity to discuss and review their activities and did indeed try to prevail upon the officers to return to work and not desert their posts of duty.
13. Upon employment, each of the officers admitted receiving a copy of the Agency’s Handbook relating to disciplinary actions and all of the officers admitted they were familiar with standing post orders. There is no doubt that each of these officers involved understood the penalties for leaving his work station and for violating standing post orders.
14. The action of the Appellants resulted in disruption of institutional activities, even though, with the assistance of local law enforcement officers, order was generally maintained throughout the hospital grounds. There was some patient rioting, damages to buildings and equipment, fires set by patients and, of course, serious disruption of patient care.
15. The Commission would remind these Appellants that rather than leave their posts of duties there were other avenues available to them such as filing an internal grievance with their superior officers.
16. This Commission finds that all of the Appellants named herein were well aware of rules governing the Agency and the responsibilities and duties of security officers at an institutional setting. Failure to make sure that proper relief was afforded prior to leaving their duty posts and failing to report to their duty posts without authorized leaves of absence, in and of itself, constitutes patient neglect by the Appellants named herein.
17. From the testimony and evidence presented to this Commission, it finds that the Appellants were guilty of neglecting patients, in that they failed to report or to continue to perform their duties as security guards, thereby endangering the health and welfare of the patients, the other employees and the immediate community as a whole. These employees failed to obey a direct and proper communication to stay at their posts and comply with standing orders.
18. The Commission finds further that all of the Appellants were familiar with post orders and knew the operations procedures upon the change of shifts.
19. From the testimony and evidence presented this Commission finds the Appellants’ actions jeopardized the security of the hospital and created a danger, as stated above, not only to the employees and patients but to the immediate and surrounding community and the Agency’s administrators would have been derelict in their duty had they not taken disciplinary measures against these personnel.
20. In failing to stay on or report to their duty posts, the Appellants were guilty of insubordination as they failed to comply with orders of their supervisors. The Agency offered competent substantial evidence to support the charge of patient neglect, and the action of the Agency should be sustained.

We have reviewed the lengthy transcripts of testimony and record and conclude therefrom that the1 Commission’s findings are supported by. competent, substantial evidence. Andrus, supra. We have also examined the other points raised by the appellants and find no error.

Accordingly, the decision of the Commission of January 27,1978, is hereby affirmed.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    KING MOUNTAIN CONDOMINIUM ASSOCIATION, INC., etc. et al., Appellants, v. William GUNDLACH, etc. et al., Appellees.
    No. 78-2497.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Mark B. Schorr and Jeffrey E. Streitfeld of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellants.
    J. Cameron Story, III, of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, for appellees.
   PER CURIAM.

AFFIRMED. See Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979).

ANSTEAD, LETTS and BERANEK, JJ., concur.


text:
    Bobby G. BAKER, a/k/a Bobby Gene Baker, Appellant, v. STATE of Florida, Appellee.
    No. 79-40.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

On September 21, 1977, appellant pled guilty to burglary, was adjudged guilty and placed on probation for three years. On November 29, 1978, appellant’s probation was revoked, based upon his admission of guilt to two violations of probation, and he was sentenced to one year in the Palm Beach County Jail with credit for time served from September 11,1978, to September 19, 1978. At that time, an additional third charge of violation of probation was pending against the. appellant which remained unresolved. On December 19, 1978, appellant entered a plea of guilty to the additional violation and the court again revoked the probation and sentenced the appellant to the Department of Corrections for an indeterminate sentence of from six months to three years with credit for time previously served “to run concurrently with sentence imposed in original violation of probation.”

We believe that the judgment and sentence imposed on December 19, 1978, must be reversed. Once appellant’s probation was revoked, and sentence imposed, and appellant had commenced serving such sentence, the court could no longer treat appellant as a probationer and enter a second order of revocation and sentence. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979); Hardwick v. State, 357 So.2d 265 (Fla. 3d DCA 1978); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976).

Accordingly, the judgment and sentence of December 18, 1978, are hereby reversed.

ANSTEAD and HERSEY, JJ., and FA-GAN, OSEE R., Associate Judge, concur.


author: MOORE, Judge.

text:
    Joe Nathan GAYNUS, Appellant, v. STATE of Florida, Appellee.
    No. 79-52.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.

      Craig C. Keller, of Keller & Keroff, P.A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Defendant appeals convictions for possession of heroin with intent to sell, possession of cocaine with intent to sell, and possession of paraphernalia. The State relied on a constructive possession theory to prove its case. Appellant contends that the evidence is insufficient to establish constructive possession. We agree with this contention and reverse.

The police executed a search warrant at a residence jointly occupied by appellant and at least three others. Appellant was not the owner of the premises, and although he was present at the time, others were also present. Drugs were discovered in a closet in the northwest bedroom and in a closed briefcase in the kitchen. The alleged paraphernalia was found in kitchen cupboards and in the pantry.

Constructive possession exists where the accused, without physical possession of the controlled substance, knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). As stated in Hively at 129:

If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused’s ability to maintain control over it, may be inferred. If the premises on which the controlled substance is found is not in the exclusive but only in the joint possession of the accused, knowledge of the presence of said controlled substance on the premises and the accused’s ability to maintain control over it will not be inferred but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the controlled substance on the premises, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the controlled substance on the premises.

In the instant case, there is no evidence that appellant had exclusive possession of any portion of the premises where the drugs or alleged paraphernalia were discovered. Likewise, there is no evidence linking appellant to the briefcase. Lastly, there is no evidence that appellant had actual knowledge of the contraband nor is there any evidence of incriminating statements or circumstances from which the jury might have inferred such knowledge. Thus, the instant convictions must be reversed. The case is remanded to the trial court with directions that the defendant be discharged.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    James SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 79-274.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s finding as to three distinct violations of probation.

We do not agree that there was a sufficient showing as to failure of probationer to make periodic payments to the state. There must be a sufficient demonstration of ability to pay. See Woodard v. State, 371 So.2d 708 (Fla. 4th DCA 1979). And there must be a specific finding regarding the ability to pay. See Cohen v. State, 365 So.2d 1052 (Fla. 4th DCA 1978).

We therefore remand the cause with directions to strike the holding that failure to make monthly payments was a violation of probation.

We affirm this cause in all other respects.

AFFIRMED AS MODIFIED.

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    Caryn FREEMAN, Appellant, v. Donald FREEMAN, Appellee.
    No. 79-1110.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.

      John L. Walkden, Fort Lauderdale, for appellant.
    Don Beverly of Beverly & Freeman, West Palm Beach, for appellee.
   PER CURIAM.

This is a timely interlocutory appeal from an order awarding immediate possession of property. We affirm.

On April 12,1979, the trial court conducted a hearing upon appellant’s motion for temporary relief. Because of the limited time available, the trial court requested the parties to wait outside and they complied. After the parties left the hearing room, temporary alimony was discussed pursuant to the motion. Appellee’s counsel, Mr. Beverly, then informed the court that his client’s income taxes of $13,000.00 were due the following Monday, April 16th; that $6,811.24 was deposited in a joint savings account by appellee without contribution from appellant; and that $5,852.82 was deposited in another joint savings account, to which each party had contributed half. Then the following took place:

MR. BEVERLY: If that is the Court’s position, let me suggest this: Let me request that an order be entered authorizing, or ordering, Mrs. Freeman to release to Mr. Freeman that portion of the money in Community Federal to specifically pay his taxes with and ordering her to release 50 percent of the Bank of Palm Beach, so—
THE COURT: Well, I think that would be all right, assuming that they are filing separate returns.
MR. BEVERLY: I agree.
THE COURT: He wants his half, right?
MR. BEVERLY: He wants to be able to pay his taxes,, regardless.
THE COURT: Any objection to that?
MR. WALKDEN: I am just going to make sure with my client, that those are the correct figures. If they are, I would advise her. (emphasis added).
THE COURT: If they are in joint accounts, I think I would have to assume at this point that they are in fact equal.
MR. WALKDEN: That is my assumption.
THE COURT: If it may be at some later time, at least at this stage, we can assume he is entitled to his half.
MR. BEVERLY: The Community Federal account, he deposited all of that.
THE COURT: But, it is a joint account.
Well, I would order her to release his half. He is entitled to half or more or less. At a later time, in fact we can state that in the order, by so releasing this account, does not determine if they each equal owners.
MR. BEVERLY: Well, the problem I am trying to get at is the fact that if I get one-half of each account — in other words, if he doesn’t get all of his money that he put in, in the account where there is no contest, whether she made any contributions or not, this would leave him with less that [sic] sufficient money to pay his taxes.
MR. WALKDEN: With all due respect, I am not sure that there is no contest.
MR. BEVERLY: We can ask them.
MR. WALKDEN: Let’s find out.
Is that all right with Your Honor?
THE COURT: Yes.
(WHEREUPON, both attorneys had a brief conference with their clients.) (emphasis added).
MR. BEVERLY: That is no problem, Your Honor. It [sic] (is) all Mr. Freeman’s.
THE COURT: Well, in that case, she should release the money. All of this is going to be a matter of record and we will adjust it at the end, should it come out later on that she has a special interest in those accounts, (emphasis added).
MR. BEVERLY: All right, sir.
THE COURT: What else can we do?
MR. BEVERLY: Then, specifically any pending bills referable to the home of the parties, including the mortgage, will be paid by the husband. Neither party is to charge any items to the other’s account, of whatever nature.
THE COURT: From today’s date.
MR. BEVERLY: From today’s date forward. The wife shall release the funds in Community Federal Savings in the amount of $6,811.24 and 50 percent of the joint savings account at the Bank of Palm Beach, the total being $5,852.82, and 50 percent of that figure being $2,926.41.

After brief further discussion the hearing ended and the order being appealed was entered. It recited, inter alia:

6. The Wife shall release to the Husband all of the funds in the Savings Account at Community Federal Savings and Loan Association in the approximate amount of $6,811.24. The Wife shall also release to the Husband one half of the funds in the Savings Account at the Bank of Palm Beach, which account balance is approximately $5,852.82, all for the purpose of the Husband paying his Federal Income Taxes due on April 16, 1979.

Appellant contends that that order requiring her to release funds in the joint savings accounts should not have been entered in the absence of any evidence or affidavit because the funds were held jointly. Notwithstanding the absence of any motion, the record reflects no objection at the hearing to the release of the funds. Moreover, the order did not adjudicate ownership of the funds. Instead, the trial court authorized use of the funds for the specific announced purpose, subject to appellant’s opportunity to establish all of her rights and to obtain appropriate adjudication at the final hearing.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

BERANEK, J., concurs in result only.


author: DOWNEY, Chief Judge.

text:
    In re ESTATE of Dorothy VanLANDINGHAM, Deceased.
    No. 79-1807.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Edwin 0. Simon, of Redfearn & Simon, P. A., Miami, for appellant-Harms.

      A. C. Paoli, of Paoli & Paoli, P. A., Hollywood, for appellees-Josephine M. Pitts and Jo Etta Antill Galbraith.
    Gramham C. Miller, of Miller & Volgel-sang, P. A., Miami, for appellee-Virginia M. Jana.
   DOWNEY, Chief Judge.

Appellant, Alva M. Harms, and appellees, Josephine M. Pitts, Virginia M. Jana, and Jo Etta Antill Galbraith, are the residuary beneficiaries under the will of Dorothy VanLandingham, deceased. Appellant and the appellees are each entitled to one-fourth of the residue of the estate of said decedent, consisting, in part, of an unimproved tract of land of approximately 3.371 acres in Broward County, Florida. Walter I. Harms, the personal representative of said estate, filed a joinder in the appeal.

Appellant and the personal representative, as petitioners, filed a Petition for Partition pursuant to Section 733.814 Florida Statutes (1979), naming the appellees as respondents. In material part the petition alleged that petitioner Alva M. Harms and each of the respondents held a one-fourth interest in the above mentioned tract of lands which tract was indivisible and not subject to partition in kind without prejudice to its owners. The petitioners prayed that the tract be partitioned by a court ordered sale.

Answers filed by the appellees admitted that the appellant and the appellees each owned one-fourth of the residue of the estate as residuary beneficiaries but denied that the tract could not be partitioned in kind without prejudice to its owners.

Thereafter the personal representative filed a petition to extend the time for filing his final accounting and petition for discharge until 60 days after the property in question was sold pursuant to a judgment of partition. In addition, the appellants served appellees with six interrogatories. Appellees objected to four interrogatories and to the petition for extension of time. In due course the court held a hearing on: appellant’s petition for partition (over appellant’s objection that the hearing was untimely), the personal representative’s petition for extension of time, and appellees’ objections to answering four interrogatories. The hearing resulted in an order (a) denying the petition for partition, (b) denying the petition for extension of time, (c) granting appellees protection against answering the four interrogatories they objected to, and (d) directing the personal representative to make distribution to the beneficiaries and file his final accounting and petition for discharge.

On appeal Alva Harms asserts that the court erred in: (1) denying partition, (2) granting the order of protection as to the interrogatories, (3) denying the extension of time for the final accounting, and (4) directing distribution and discharge.

Section 733.814, Florida Statute (1979), provides for partition under the circumstances of this case. The only issue seems to be whether the property should be partitioned in kind or the property sold and the proceeds distributed to the interested parties. Thus the trial court should allow the parties to adduce evidence in support of their various contentions and then direct the proper disposition of the property in accordance with the statute on partition.

Accordingly, the order of July 9, 1979, is reversed and the cause is remanded with directions that the trial court require the appellees to answer the interrogatories objected to. The trial court is also directed to entertain the petition for partition and the answers thereto and to partition the property in accordance with Chapter 64 of the Florida Statutes.

BERANEK and GLICKSTEIN, JJ., concur.


author: COBB, Judge.

text:
    Theodore Cleveland CHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. NN-347/T1-81.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant, convicted of burglary of a structure, contends the trial court erred: (1) in denying a motion for mistrial after allegedly improper prosecutorial comments; and (2) in allowing prejudicial cross-examination of a key defense witness concerning unrelated specific acts of sexual misconduct.

Appellant contends that the following prosecutor question and arresting officer answer amounted to an improper comment upon the failure of the defendant to make a statement or explanation, in violation of his Fifth Amendment privilege against self-incrimination, and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

Q. Did they give any explanation for the possession of those coats?
A. Stanley Scott, a Co-defendant, gave me a statement later at the Police Department.

We find appellant’s argument to be without merit. The foregoing question and answer did not constitute “comment” on the constitutional right to remain silent. Such inquiries are proper- when the purpose is to permit the jury to consider the inference of guilt drawn from the fact of unexplained possession of recently stolen goods. State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969); Whiteside v. State, 366 So.2d 1232 (Fla. 2d DCA 1979); Cridland v. State, 338 So.2d 30 (Fla. 3d DCA 1976).

However, the trial court erred in allowing the prosecution to ask defendant’s key witness the following questions over objection during cross-examination, and erred in allowing the prosecutor to refer to the testimony during closing argument:

Q. Okay. Did you admit in the Tom Fulford trial that you were a hooker?
A. No, I didn’t.
Q. Now, you said you were a witness for the state, now, tell the ladies and gentlemen of the jury what he paid you $100.00 for.
A. He paid me $100.00 to go to bed with him.

Although the general reputation of a witness for truth and veracity may be shown, it is improper to allow inquiries relative to the general moral character of a witness. Andrews v. State, 172 So.2d 505 (Fla. 1st DCA 1965). In this case, the balance of the defense witness’ testimony exonerated the appellant and placed the entire blame on a third party. Evidence of unrelated particular acts of misconduct (except for the fact of a prior conviction) may not be introduced to impeach the credibility of a witness. See Fulton v. State, 335 So.2d 280, 284 (Fla.1976); Butler v. State, 94 Fla. 163, 113 So. 699 (1927); Baker v. State, 51 Fla. 1, 40 So. 673 (1906); Andrews v. State, supra; Urga v. State, 155 So.2d 719 (Fla. 2d DCA 1963), cert. denied, 162 So.2d 904 (Fla.1964). In Fulton v. State, the Supreme Court held that allowing the state, over objection, to cross-examine a defense witness as to a pending charge of second degree murder against the witness was improper and, as the witness’ testimony went to the heart of the defendant’s claim of self-defense, the error could not be held harmless.

This court in McArthur v. Cook, 99 So.2d 565 (Fla.1957), in reversing the defendant’s conviction stated: “[If the witness] had been sufficiently discredited . in the minds of the jurors, the ultimate result of the case could have been entirely different. We do not say that it would or should have been different; we merely hold that if the correct rule of evidence had been applied, it could have been.” Id. at 568 (emphasis added). Fulton v. State, supra at 285.

The defense witness’ testimony in the present case went to the heart of appellant’s defense; therefore, the error in allowing the improper evidence was not harmless.

Accordingly, we reverse on the second point and remand for a new trial.

REVERSED and REMANDED.

UPCHURCH and SHARP, JJ., concur.


author: UPCHURCH, Judge.

text:
    Robert BASS, a/k/a Charles R. McConaha, Appellant, v. STATE of Florida, Appellee.
    No. 78-2187/T4-240.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPCHURCH, Judge.

Defendant was convicted in the Circuit Court of Brevard County on two counts of sexual battery by coercing the victim with threats of more serious injury, and one count of kidnapping.

The first question which we shall address is whether the trial court erred in sentencing Appellant separately for two counts of sexual battery. The issue on which this question turns is whether this activity was a single criminal transaction, or episode.

The victim was employed delivering newspapers on an early morning route. Deliveries were made from her automobile. At about 4:45 a. m. she stopped to open a vending machine; as she reached the machine she found she had the wrong key. She returned to her car as defendant stopped his automobile diagonally in front of her car. He threatened her, forced her into the car with him and drove off in spite of her protests that her baby was in the car with the door open and the engine running.

While driving to a more isolated spot defendant required the victim to remove her clothes and to perform oral sex. After reaching his destination, he then raped her. Although other acts took place and there were other counts, no convictions as to those counts resulted. Further recitation of the sordid facts would serve no purpose in consideration of the merits of this appeal.

Appellant contends that the activity occurring while defendant was driving and after coming to a stop occurred during one continuous course of events. He contends that Section 775.021, Florida Statutes(1979) requires there to be a violation of two separate statutes before he can be held guilty of separate offenses. Here defendant was charged under a single statute, Section 794.011(4)(b).

Williams v. State, 349 So.2d 800, (Fla. 2d DCA 1977), involved possession of a controlled substance with intent to deliver, and delivery of a controlled substance. The court held that Count II would be set aside because both crimes were a facet of the same transaction. See also Orange v. State, 334 So.2d 277 (Fla. 3d DCA 1976).

In the Williams and Orange cases, supra, the acts were committed together, there was no separation in time. Each crime was part and parcel of the other. In the case before this court, defendant forced the victim to commit one act upon him while driving his car. He then forced her to commit another act after reaching his destination which, while sexual battery and falling within the same statute, was of a separate character and type. Had defendant released his victim after commission of the first episode there is no doubt that he could be charged and convicted of sexual battery. The same result would be obtained as to the second episode had it occurred on the following day. In the case before us, the time interval between one act and the other was minimal, but nevertheless was sufficient to separate one episode or criminal transaction from the other.

The second question which will be considered is whether the trial court erred in adjudging Appellant guilty of both sexual battery and kidnapping where the kidnapping was incidental to the sexual battery. The use of the word “incidental” is Appellant’s. In this case the removal of the victim was not incidental and no part of the removal constituted an element of either act of sexual battery. In Harkins v. State, 380 So.2d 524 (Fla. 5th DCA, 1980), this court construed Section 787.01, Florida Statutes as not including movement or confinement that is inconsequential or inherent in the nature of the felony. In the case before us, the abduction was neither inconsequential nor inherent in either sexual battery.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . § 775.021(4) Florida Statutes. Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


author: SHARP, Judge.

text:
    James E. ALFORD, Petitioner, v. Lon S. CORNELIUS, Jr., Circuit Judge of the Ninth Judicial Circuit, in and for Orange County, Respondent.
    No. 79-452.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Judith A. Ginn, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for respondent.
   SHARP, Judge.

The petitioner, James E. Alford, filed a petition for writ of prohibition to this court. He urges that he was compelled, over his Fifth Amendment objection, to testify in a criminal proceeding involving another person, and therefore he should have been given immunity from prosecution pursuant to Section 914.04, Florida Statutes (1979). The transcript of the proceeding was furnished to this court. After reviewing it, we disagree with the petitioner that his testimony was relevant to the current charges or that there was any substantial connection or link between the two. Accordingly, we deny the petition.

The petitioner was charged with “trafficking” in stolen property, specifically four 1969 Chevrolet hub caps, on April 12, 1979. His testimony was “compelled” at a criminal proceeding involving a different defendant who was charged with selling other stolen hub caps to the petitioner on approximately July 3, 1978. The petitioner testified that he was in the business of buying and selling used property of various kinds, and he identified and explained his business records concerning the July 1978 sale. The July hub caps were not involved in the April hub cap transaction in any way.

It is clear that the petitioner would have “use” immunity under Section 914.04, Florida Statutes (1979) for his testimony but no “transactional” immunity for anything other than the July hub cap transaction. To gain “transactional” immunity the compelled testimony must be “relevant to and have substantial connection with the subject of inquiry”. State v. Kelly, 71 So.2d 887, 894 (Fla.1954). This case is similar to the hypothetical discussed by the Supreme Court in State ex rel. Hough v. Popper, 287 So.2d 282 (Fla.1973):

Thus if a person testifies under subpoena before a grand jury concerning an armed robbery in which he was a participant, and states in the course of his testimony that he drove his black Cadillac as the ‘getaway car,’ and it later is discovered that this car was driven by the witness in another, unconnected robbery, the statute provides the witness with complete immunity from prosecution for the robbery concerning which he testified, but only with use immunity as to the second, unconnected robbery. For this separate offense, the witness may be prosecuted; the statute, however, forbids the use of his compelled testimony in this prosecution even to establish the fact (innocent in and of itself) of ownership of the vehicle .

Id. at 284.

Petition for writ of prohibition is hereby DENIED.

COBB and UPCHURCH, JJ., concur.


text:
    IRANI & CASTANON, a Professional Association, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, an insurance corporation, Appellee.
    No. 00-153/T1-105.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Larry Sands and Sarah E. Hague, Dayto-na Beach, for appellant.
    Ronald L. Harrop and Gary L. Dirlam of Gurney, Gurney & Handley, P.A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

See Excelsior Insurance Company v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979).

DAUKSCH, C. J., and CROSS and UP-CHURCH, JJ., concur.


text:
    In the Interest of E.J.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 78-69/T4-40.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Richard L. Jorandby, Public Defender, and Michael Salnick, 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.
   PER CURIAM.

This is an appeal from an adjudication of delinquency and commitment to the Department of Health and Rehabilitative Services entered by the Circuit Court of Orange County, Florida. 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 October 26,1979, this Court gave the appellant thirty (30) days within which to file a brief in her own behalf. No such brief has been filed. The Court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the adjudication of delinquency is hereby

AFFIRMED.

COBB, UPCHURCH and SHARP, JJ., concur.

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


author: UPCHURCH, Judge. DAUKSCH, Chief Judge,

text:
    Reginald S. ORR, etc., Appellant, v. STATE of Florida, Appellee.
    No. 78-805/T4-89.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Div., Asst. Public Defender, and Gary S. Israel, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Ceclian, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPCHURCH, Judge.

Appellant was charged, by amended information, in three counts with Count I, Burglary of a Dwelling; Count II, Grand Theft, and Count III, Possession of a Firearm by a Convicted Felon. A Motion for Severance of Offenses was filed alleging that Counts I and II were improperly joined with Count III; that motion was denied. The court entered a Directed Verdict of acquittal as to Count I. Appellant was found guilty of Count II, Grand Theft; and Count III, Possession of a Firearm by a convicted felon.

A single point is raised by this appeal: was a severance of Count III from Counts I and II required to promote a fair determination of Appellant’s guilt or innocence? Florida Rules of Criminal Procedure 3.152(a)(2).

Appellant was discovered in Winter Park carrying a shotgun and a duffel bag. He told the investigating officer that he had found the shotgun, the bag, and another gun in a trash can. Some four hours later the police received a report of a burglary in the same area as the trash can. The owner identified the articles found in Appellant’s possession, including the shotgun, as taken from his residence.

In Eagle v. State, 249 So.2d 460, 465 (Fla. 1st DCA 1971), the court stated, “Absent compelling reasons to the contrary, the trial courts of this state should insist that where several indictments or informations are filed against the same defendant constituting separate offenses growing out of the same transaction or occurrence, such indictments or informations should be consolidated and disposed of in one trial.” The court emphasized that the charges grew out of the same transaction or occurrence, the same witnesses testified, and essentially the same evidence was addressed.

In the case before us, the element that defendant was a convicted felon is necessary to prove Count III. That element is not necessary to prove Count II. In a normal trial, evidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or material bearing on some essen-tia] aspect of the offense being tried. Williams v. State, 110 So.2d 654 (Fla.1959). In the case before us, Appellant had been previously convicted of Auto Theft and Grand Larceny. The only purpose in introducing the prior convictions was as a required element of Count III. This information had no relevance whatever as to the proof required in Count II.

The trial judge, in an innovative attempt to solve the Appellant’s dilemma, suggested that if Appellant did not think the jury would do what was right after being properly charged, he could plead guilty to Count III before starting and then the court would keep out the evidence of the prior conviction. While this may be innovative and expeditious justice would not have been served by this unique suggestion.

As to Counts I and II, the prior convictions had no probative value and were inadmissible. We cannot agree that Appellant was not harmed by the jury’s consideration of his prior convictions.

We AFFIRM as to Count III, and REVERSE as to Count II, and REMAND for new trial.

SHARP, J., concurs.

DAUKSCH, C. J., dissenting with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. The decision to sever or not is within the sound discretion of the trial court. Ashley v. State, 265 So.2d 685 (Fla.1972). The trial judge did not abuse his discretion in this case because the facts needed to prove the burglary and grand theft were quite well intertwined with the fact this previously convicted felon possessed the very same firearm he stole in the burglary.

The trial judge instructed the jury they were to consider each count separately and we should presume they did. Thus the only element of essential difference between the burglary and theft charges on the one hand and the possession charge on the other hand is the proof the accused was a convicted felon. I know it hurts to have been convicted of a felony and have a jury know about it, but as those in the trade say: “If you can’t do the time then don’t do the crime.”


text:
    L. W. PARKER, Appellant, v. Carolyn PARKER, Appellee.
    No. 00-187/T1-110.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Harvey R. Klein and H. Randolph Klein, Ocala, for appellant.
    Robert J. Spence, Hawthorne, for appel-lee.
   PER CURIAM.

AFFIRMED.

See Canakaris v. Canakaris, No. 54,124 (Fla. Jan. 31, 1980) [1980 FLW 59].

ORFINGER, COBB and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Frank ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1557/T4-156.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Judith A. Ginn, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORFINGER, Judge.

Alexander appeals from an order denying post-conviction relief after an evidentiary hearing. He contends that the trial court erred in refusing to set aside his conviction when it learned that he had previously been adjudicated incompetent, that his competency had never been restored and without a hearing to determine his competency, although the trial court had a reasonable doubt as to his competency to stand trial. We agree and reverse.

Appellant was tried and convicted for larceny of a dwelling while armed with a knife. The motion for. post-conviction relief was addressed to this charge and also a conviction about a month earlier, and requested that both convictions be set aside because appellant had been adjudicated incompetent in Orange County, Florida, on April 9, 1971, his competency had never been restored and consequently he was not competent to stand trial for either charge.

Prior to the first trial appellant had written to the judge who presided in both cases about the “ . . . voices I am hearing, they go on all day and all night.” The judge wrote that he should consult with his lawyer about that. Nothing further was done about it in the first case, but on the day prior to trial in the case sub judice, the appellant was examined by a psychiatrist, and he was also examined by another psychiatrist on the morning of the trial. Just before the trial commenced, both doctors reported to the judge by telephone that appellant was competent. Written reports were filed later. When the trial judge reported the phone conversations to counsel, the record reflects that appellant’s counsel stated: “ . . . I do not choose to go ahead with the evidentiary hearing. The doctors’ oral statements are at [sic] value here, and we will proceed to trial.” The case then proceeded to trial.

In the order on the combined motions to vacate the judgments, the court set aside the conviction in the first trial because of appellant’s incompetency, but denied the motion in this case because he found that appellant, through counsel, had waived the evidentiary hearing and could not therefore complain that his rights had been violated. This appeal followed. We are asked to decide if an incompetent can waive a formal competency hearing.

It has long been the law of this state, as well as at common law, that a person adjudged to be insane is presumed to continue insane until it is shown that his sanity has returned. Corbin v. State, 129 Fla. 421, 176 So. 435 (1937). The presumption is not conclusive, but may be overcome by proof that the accused was of sufficiently sound mind and conscience at the time of the commission of the crime to realize the character and consequences of his act. Wells v. State, 98 So.2d 795 (Fla.1957).

It appears without contradiction that the prior adjudication of incompetency was not known either to the court or to counsel at the time of the trial. This does not alter the legal impediment to a trial, because an accused cannot be tried while insane and the ignorance or good faith of the court and prosecuting officers does not serve to validate a proceeding conducted in violation of this precept. Horace v. Culver, 111 So.2d 670 (Fla.1959). We must therefore make this inquiry as we would if the court knew about the prior adjudication of incompetency.

Even without the knowledge of the prior adjudication, the trial court had some reasonable doubt as to the appellant’s competency, because he appointed two psychiatrists to examine him. Former Rule 3.210(a)(1), Fla.R.Crim.P., 1972, required the Court to immediately fix time for a hearing to determine a defendant’s mental condition if there was reasonable ground to believe that the defendant was insane.

The State recognizes the presumption that follows an adjudication of incompetency and its obligation to rebut the same, but it says that the appellant waived the necessity for a hearing, citing Fowler v. State, 255 So.2d 513 (Fla.1971); Bolius v. State, 319 So.2d 85 (Fla. 2nd DCA 1975) and Hatchell v. State, 328 So.2d 874 (Fla. 1st DCA 1976). It is noted however, that in all three cases the defendant had never been adjudicated incompetent, so there was no continuing presumption of incompetency. Rather, there was a presumption that he was competent until proven otherwise. In Fowler, supra, the Supreme Court held that where the parties and the judge agree, the trial court may decide the issue of competency on the basis of written reports alone. The Court went on to find, however, that the parties had not agreed and that the defendant had insisted on a formal hearing, so a formal hearing was required.

A privilege or right may be waived by the person for whose benefit they were intended, provided he is sui juris. 12 Fla.Jur. Estoppel and Waiver, § 6. A defendant who is presumptively incompetent is not sui juris until so declared by the court, so he cannot waive a competency hearing. A similar problem was discussed in Parks v. State, 290 So.2d 562 (Fla. 4th DCA 1974). There the defendant had been adjudged incompetent and had been committed for treatment. Thereafter without a hearing, the defendant was deemed to be competent based on receipt of an ex parte letter from a doctor at the Florida State Hospital. He was brought to trial and then convicted. It was there held, and we agree, that the legal status of a defendant cannot be adjudicated from incompetent to competent without a hearing. The question of a defendant’s sanity is a legal question and not a medical question, although based upon medical and other evidence, and it must be “legally” decided. Butler v. State, 261 So.2d 508 (Fla. 1st DCA 1972.)

One further point warrants discussion. Appellant contends that in any event, there was no legal or judicial decision made as to his competency because the Court never entered a written order. Appellant relies on Emerson v. State, 294 So.2d 721 (Fla. 4th DCA 1974), which does indeed construe former Rule 3.210, Fla.R.Crim.P., 1972, as requiring a written order of competency, in turn relying on Rodriguez v. State, 241 So.2d 194 (Fla. 3rd DCA 1970) as authority for that proposition. Reliance on Rodriguez, however, is misplaced, because Rodriguez merely holds that in a competency hearing the court is required to enter a “formal adjudication” of competency pursuant to § 917.01, Fla.Stat., (1969), which controlled those proceedings at that time. And so also, in Marshall v. State, 351 So.2d 88 (Fla. 2nd DCA 1977), the Court held that under former Rule 3.210, Fla.R.Crim.P., (1972), a written order of competency was required, and again cited Emerson, supra. A fair reading of former § 917.01, Fla.Stat. (1969), and of former Rule 3.210, Fla.R.Crim.P., (1972), fails to reveal any requirement for a written order. Both the Statute and the Rule require a “decision” and the form of the order is not mentioned. In fact, Section (a)(3) of the former Rule specifically calls for written reports under certain circumstances, so it would appear that if the Supreme Court had required written orders, it would have said so. An analogous situation can be found in the requirement that a court first make a decision on the voluntariness of a confession before it can be admitted into evidence. It has been held that the court’s conclusion and finding of voluntariness must appear in the record with “unmistakable clarity” but it has also been held that the court need not make formal findings of fact or write an opinion. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); McDole v. State, 283 So.2d 553 (Fla.1973). If the court can make a verbal finding on the record on a matter as important as the voluntariness of a confession, it would seem that the court can also make a verbal finding on the record that an accused is competent. We find no legal requirement for a written order so long as the record accurately reflects the court’s findings.

For the reasons expressed, the order appealed from- is reversed, with directions to the trial court to set aside the judgment of conviction and to grant the appellant a new trial, after first determining in a formal hearing the matter of defendant’s competency.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . 3.210(a)(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant’s mental condition. The defendant shall designate his attorney to serve as his representative under Fla.Stat. § 394.459(11), F.S.A., in the event the defendant is found mentally incompetent. The court may appoint not exceeding three disinterested qualified experts to examine the defendant and to testify at the hearing as to his mental condition. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party.

      . 917.01, F.S.1969: (2) “If the court, after the hearing decides that the defendant is sane, it shall proceed with the trial. If, however, it decides that the defendant is insane, it shall take proper steps to have the defendant committed to-the proper institution. . . . ”


text:
    William A. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2213/T4-14.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, 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.

This is an appeal from a conviction of willfully failing to appear in court. Sec. 843.15(1) Fla.Stat. (1979). Because the evidence is unrefuted that the accused was not notified to appear, we must deem the failure to appear to be not willful and thus not a crime. Because we must reverse the conviction of the Appellant for the reasons above, we do not need to discuss the issue of ineffectiveness of counsel.

REVERSED.

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


text:
    Mark William LANDRY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2333/T4-271.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an Order of the Circuit Court of Orange County revoking Appellant’s probation.

At the hearing the trial judge announced that he found Landry in violation of Conditions 1, 2, and 6, of Order Withholding Adjudication of Guilt and Placing Defendant on Probation. The Court announced that it “particularly” found that Defendant had not violated Condition 5, but contrary to such finding the Order of Revocation of Probation from which this appeal is taken held that Defendant had also violated Condition 5. This erroneous finding can only be a clerical error which we hold was harmless. Violation of the other three conditions was a sufficient basis for the revocation. No abuse of the trial court’s discretion was shown. Crossin v. State, 244 So.2d 142 (Fla. 4th DCA 1971); Bernhardt v. State, 288 So.2d 490 (Fla.1974).

We therefore AFFIRM the Order of Revocation, but REMAND for correction of the clerical error.

CROSS, ORFINGER and UPCHURCH, JJ., concur.